Lawsuit Over Gay Conversion-Therapy Ban Could Hinge On A Single Word
An Illinois law, passed last year, says anyone offering “conversion therapy services” can’t represent being gay as, “a mental disease, disorder, or illness.” Doing so could lead to fraud charges.
The question is: Does “disorder” mean “mental disorder”?
“This is what most pastors teach,” Mauck said. “That we’re all disordered, and we all need to come back into good order, through repentance and following God.”
That possible ambiguity is at the heart of Mauck’s argument that ministers should be exempt from the law.
Previous lawsuits against similar laws in other states have failed. Those suits attacked the premise of the conversion-therapy bans, where this one seeks a more-specific exemption, built on this close reading of one section of the law.
State Senator Daniel Biss, who co-sponsored the legislation, says the language is clear enough: It bans deceptive marketing for mental-health services that have been shown to cause harm.
Biss says he would apply the following test: “Are they saying, ‘We’re going to go through steps A, B, C, and D to make you straight’—when there’s been many studies that steps A, B, C and D don’t make people straight, but do lead to depression and suicide?” If so, he says, the law calls that fraud.
In the statute, that test gets expressed in a long sentence, in which Mauck finds several ambiguities.
Here’s the sentence, with annotations:
Advertisement and sales; misrepresentation. No person or entity may, in the conduct of any trade or commerce,
(Does being a minister on salary represent the conduct of trade or commerce?)
use or employ any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact
(Would pastors be obligated, when talking about their views on sexuality, to bring up studies that show negative consequences for attempts to change sexual orientation?)
in advertising or otherwise offering conversion therapy services
(Is pastoral counseling included in “therapy services”?)
in a manner that represents homosexuality as a mental disease, disorder, or illness,
(The “disorder” question.)
with intent that others rely upon the concealment, suppression, or omission of such material fact. A violation of this Section constitutes an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.
With those possible ambiguities in mind, Mauck says his clients “have been concerned that they may be charged with consumer fraud if they say that homosexual conduct is a disorder.”
Biss thinks the concern is overblown.
“I recognize that Strunk and White would not give this sentence a trophy,” Biss said, referring to the authors of the widely-admired writing guide, The Elements of Style.
“But I do think the meaning is discernible.”
Dan Weissmann is a reporter for WBEZ. Follow him @danweissmann.