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Case: 13-4429

Document: 003111551813 13-4429


IN THE

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United States Court of Appeals


FOR THE THIRD CIRCUIT

TARA KING, ED. D. individually and on behalf of her patients; RONALD NEWMAN, PH. D., individually and on behalf of his patients; NATIONAL ASSOCIATION FOR R ESEARCH AND T HERAPY OF H OMOSEXUALITY, (NARTH); A MERICAN ASSOCIATION OF CHRISTIAN COUNSELORS, Appellant, v. GOVERNOR OF THE STATE OF NEW JERSEY; ERIC T. KANEFSKY, DIRECTOR OF THE N EW J ERSEY D EPARTMENT OF L AW AND P UBLIC S AFETY: D IVISION OF CONSUMER AFFAIRS, in his official capacity; MILAGROS COLLAZO, EXECUTIVE DIRECTOR OF THE NEW JERSEY BOARD OF MARRIAGE AND FAMILY THERAPY E XAMINERS , in her official capacity; J. M ICHAEL WALKER , E XECUTIVE DIRECTOR OF THE NEW JERSEY BOARD OF PSYCHOLOGICAL EXAMINERS, in his official capacity; PAUL JORDAN, PRESIDENT OF THE NEW JERSEY STATE BOARD OF M EDICAL E XAMINERS , in his official capacity; GARDEN S TATE E QUALITY, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BRIEF OF AMICI CURIAE AMERICAN ASSOCIATION FOR MARRIAGE AND FAMILY THERAPY-NEW JERSEY DIVISION, NEW JERSEY PSYCHOLOGICAL ASSOCIATION, NATIONAL ASSOCIATION OF SOCIAL WORKERS, NATIONAL ASSOCIATION OF SOCIAL WORKERS, NEW JERSEY CHAPTER, AND NEW JERSEY PSYCHIATRIC ASSOCIATION SUPPORTING DEFENDANTS-APPELLEES URGING AFFIRMANCE
TANYA E. KALIVAS KENT A. YALOWITZ ARNOLD & PORTER LLP 399 Park Avenue, 34th Floor New York, New York 10022 (212) 715-1000 tanya.kalivas@aporter.com kent.yalowitz@aporter.com Attorneys for Amici Curiae: American Association for Marriage and Family Therapy-New Jersey Division; New Jersey Psychological Association; National Association of Social Workers; National Association of Social Workers, New Jersey Chapter; and New Jersey Psychiatric Association

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CERTIFICATE OF INTERESTED PARTIES Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(c)(1), and Third Circuit Local Appellate Rule 26.1.0, amici curiae American Association for Marriage and Family Therapy-New Jersey Division; New Jersey Psychological Association; National Association of Social Workers, National Association of Social Workers, New Jersey Chapter; and the New Jersey Psychiatric Association certify that they are non-profit or not-for-profit corporations, or unincorporated associations, with no parent corporations or publicly traded stock. Amici are aware of no publicly held corporation that has a financial interest in the outcome of the proceeding.

DATED: March 6, 2014 /s/ Tanya E. Kalivas TANYA E. KALIVAS

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TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES ..........................................................i IDENTITY AND INTEREST OF AMICI CURIAE .................................................. 1 SUMMARY OF ARGUMENT ................................................................................. 4 ARGUMENT ............................................................................................................. 6 A. The Challenger Must Meet A High Burden Before A Lawfully Enacted Statute Can Be Held Unconstitutional.......................................... 6 B. The Legislature Analyzed Numerous Scientific Studies Conducted Over Several Decades Showing That SOCE Is Both Ineffectual And Potentially Harmful. ................................................................................... 7 1. 2. SOCE Is Grounded In Discredited Notions About The Causes Of Same-Sex Sexual Orientations.................................................... 7 Responsible Mental Health Organizations Have Concluded That SOCE Is Both Unnecessary And Puts Patients At Risk Of Significant Harm. ...................................................................... 10 Apart From The Conclusions Of Professional Organizations, The Legislature Had Additional Evidence Showing That SOCE Provides No Demonstrable Therapeutic Benefit And Puts Patients At Risk Of Significant Harms. ................................. 12

3.

C.

In Addition To The Overwhelming Body Of Evidence Supporting The Legislative Objectives Of A3771, The Trial Court, In Dismissing Plaintiffs Claims, Had Additional Evidence Supplied By Expert Witnesses................................................................................. 15

D. Under Well Established Principles, States Are Permitted To Exercise Their Police Power To Regulate The Health Professions. ....................... 17 E. The Legislature Established Clear Boundaries Between Conduct That Is Prohibited And Conduct That Is Not. .......................................... 20 1. 2. The Statute Is Not Vague. .............................................................. 20 The New Jersey Statute Uses Language That Practitioners Understand Because it Comes From An Earlier California Statute. ............................................................................................ 22

CONCLUSION ........................................................................................................ 23

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TABLE OF AUTHORITIES Page(s) CASES Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522 (1959) .............................................................................................. 6 Am. Inst. of Foot Med. v. N.J. State Bd. of Med. Examrs, 807 F. Supp. 1170 (D.N.J. 1992) ........................................................................ 18 Barsky v. Bd. of Regents, 347 U.S. 442 (1954) ............................................................................................ 18 Blass v. Weigel, 85 F. Supp. 775 (D.N.J. 1949) ............................................................................ 19 Brown v. City of Pittsburgh, 586 F.3d 263 (3d Cir. 2009) ............................................................................... 20 Bryant v. N.Y. State Educ. Dept, 692 F.3d 202 (2d Cir. 2012) ............................................................................... 19 Clements v. Fashing, 457 U.S. 957 (1982) .............................................................................................. 6 CMR D.N. Corp. v. City of Phil., 703 F.3d 612 (3d Cir. 2013) ............................................................................... 20 Connally v. Gen. Constr. Co., 269 U.S. 385 (1926) ............................................................................................ 21 Doyle v. Secretary of Health & Human Services, 848 F.2d 296 (1st Cir. 1988) .........................................................................21, 22 First Amendment Coal. v. Judicial Inquiry & Review Bd., 784 F.2d 467 (3d Cir. 1986) ............................................................................. 6, 7 Goldfarb v. Va. State Bar, 421 U.S. 773 (1975) ......................................................................................17, 18 Govt of Virgin Islands v. Knight, 989 F.2d 619 (3d Cir. 1993) ................................................................................. 9 iii

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Hill v. Colorado, 530 U.S. 703 (2000) ............................................................................................ 21 Keller v. Larkins, 251 F.3d 408 (3d Cir. 2001) ................................................................................. 9 Lawrence v. Texas, 539 U.S. 558 (2003) .......................................................................................... 7, 8 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ......................................................................................19, 20 Parham v. Hughes, 441 U.S. 347 (1979) .............................................................................................. 6 Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013), rehg denied, 740 F.3d 1208 (9th Cir. 2014) .................................................................................................................... 5 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion) .......................................................18, 19 Sammon v. N.J. Bd. of Med. Exam., 66 F.3d 639 (3d Cir. 1995) ................................................................................. 19 San Filippo v. Bongiovanni, 961 F.2d 1125 (3d Cir. 1992) .............................................................................. 21 Sandgathe v. Maass, 314 F.3d 371 (9th Cir. 2002) ................................................................................ 9 Scott v. FCI Fairton, CIV. A. 09-4710, 2010 WL 3636286 (D.N.J. Sept. 8, 2010), affd, 407 F. Appx 612 (3d Cir. 2011) ................................................................................. 8, 9 United States v. Fullmer, 584 F.3d 132 (3d Cir. 2008) ................................................................................ 20 United States v. Vuitch, 402 U.S. 62 (1971) ................................................................................................ 6 United States v. Weitzenhoff, 35 F.3d 1275 (9th Cir. 1993) .............................................................................. 21
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Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ............................................................................................ 20 Watson v. Maryland, 218 U.S. 173 (1910) ............................................................................................ 18 Zahl v. Harper, 282 F.3d 204 (3d Cir. 2002) ................................................................................ 18 STATUTES 42 U.S.C. 1320c-1 ............................................................................................... 22 2011-2012 Reg. Sess. (Ca. 2012)............................................................................. 22 N.J. STAT. ANN. 45:1-54 1(a) ................................................................................10 N.J. STAT. ANN. 45:1-54 1(b)............................................................................ 7, 10 N.J. STAT. ANN. 45:1-54 1(k) ................................................................................. 15 N.J. STAT. ANN. 45:1-54 1(m)............................................................................... 14 N.J. STAT. ANN. 45:1-55 2(b)................................................................................ 21 OTHER AUTHORITIES AAMFT Position on Couples and Families, adopted March 25, 2009, http://www.aamft.org/imis15/Content/About_AAMFT/Position_On_Cou ples.aspx .............................................................................................................. 11 Stewart A. Adelson, Practice Parameter on Gay, Lesbian, or Bisexual Orientation, Gender Nonconformity, and Gender Discordance in Children and Adolescents, JOURNAL OF THE AMERICAN ACADEMY OF CHILD & ADOLESCENT PSYCHIATRY 957 (2012) ................................................ 15 American Academy of Child and Adolescent Psychiatry, Sexual Orientation, Gender Identity, and Civil Rights, http://www.aacap.org/AACAP/Policy_Statements/2009/Sexual_Orientati on_Gender_Identity_and_Civil_Rights.aspx. .................................................... 11 Caitlin Ryan et al., Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults , 123 PEDIATRICS 346 (2009) ..........................................................................13, 14
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Diagnostic and Statistical Manual of Mental Disorders ........................................... 9 Elaine M. Maccio, Influence of Family, Religion, and Social Conformity on Client Participation in Sexual Reorientation Therapy, 57 JOURNAL OF HOMOSEXUALITY 441 (2010) .............................................................................. 14
NATL ASSN OF SOCIAL WORKERS, SOCIAL WORK SPEAKS,

Adolescent and Youth Adult Health 3 (NASW Policy Statement) (9th ed. 2012) ......................... 2 Lesbian, Gay, and Bisexual Issues 219 (9th ed. 2012) ...........................................................2, 10, 11

NATL ASSN OF SOCIAL WORKERS, SOCIAL WORK SPEAKS,

NATL INST. OF MENTAL HEALTH, TASK FORCE ON HOMOSEXUALITY, FINAL REPORT (1969) ...................................................................................................... 9 Recommendations for Promoting the Health and Well-Being of Lesbian, Gay, Bisexual, and Transgender Adolescents: A Position Paper of the Society for Adolescent Health and Medicine, 52 JOURNAL OF ADOLESCENT HEALTH 506 (Apr. 2013) ........................................................11, 12

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IDENTITY AND INTEREST OF AMICI CURIAE The New Jersey Division of the American Association of Marriage & Family Therapists (AAMFT-NJ) represents the professional interests of its members, including marriage and family therapist licensees, interns, students and affiliates of the profession. While the two are separately incorporated, the Division serves as an extension of the American Association for Marriage and Family Therapy (AAMFT) within the state for purposes of advancing and shaping the marriage and family therapy profession in New Jersey. The AAMFT represents over 24,000 qualified marriage and family therapists. The AAMFT Code of Ethics is considered the national standard for ethical behavior within the marriage and family therapy profession. AAMFT also produces standards for clinical supervision and the clinical practice of marriage and family therapy. The New Jersey Psychological Association (NJPA) is a 501(c)(6) nonprofit professional association for licensed psychologists and others affiliated with the delivery of psychological services. Founded over eighty years ago, NJPA represents the interests of approximately 2,100 member psychologists and works on behalf of all psychologists in New Jersey as an advocate for the profession of psychology. NJPAs members work in a variety of settings, including private practice, hospitals, prisons, academic institutions, and organizations. Its members regularly provide free public service through programs such as NJPAs Public Education Campaign and its well-respected disaster response service. Additionally, NJPA works closely with the media to provide timely and accurate information when psychological expertise is requested.

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The National Association of Social Workers (NASW) is the largest association of professional social workers in the United States, with 130,000 members and 55 chapters throughout the United States and abroad (including the New Jersey chapter, which has 7,000 members). As part of its mission to improve the quality and effectiveness of social work practices, NASW promulgates professional standards and the NASW Code of Ethics, conducts research, provides continuing education, and advocates for sound public policies (including by filing amicus briefs in appropriate cases, such as this). NASW and its members are particularly committed to improving the lives of children, the most vulnerable members of the family unit. NASW policies support adolescent health programs that respect confidentiality and self-determination needs of adolescents and are provided in a culturally appropriate manner and that offer specialized training to staff on working with vulnerable populations, including LGBT teenagers. NATL ASSN OF SOCIAL WORKERS, SOCIAL WORK SPEAKS, Adolescent and Youth Adult Health 6 (NASW Policy Statement) (9th ed. 2012). As a matter of national policy, NASW encourages the development of supportive practice environments for lesbian, gay, and bisexual clients and has taken a public stance against reparative therapies and treatments designed to change sexual orientation and practitioners or programs that claim to do so. NATL ASSN OF SOCIAL WORKERS, SOCIAL WORK SPEAKS, Lesbian, Gay, and Bisexual Issues 219, 222 (9th ed. 2012). The New Jersey Psychiatric Association (NJ Psychiatric Association) is a professional organization of approximately 1,000 physicians qualified by training and experience in the treatment of mental illness. Founded in 1935, the NJ 2

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Psychiatric Association is a District Branch of the American Psychiatric Association (APA) whose purpose is to promote the science and practice of psychiatry, to maintain professional and administrative standards in psychiatry and to represent psychiatrists in New Jersey. The NJ Psychiatric Association is the official voice of organized psychiatry in New Jersey and participates, through its delegates, in the determination of official APA actions. This brief is filed in support of the Defendants-Appellees to provide the Court with the perspective of the foregoing disciplines on the use of Sexual Orientation Change Efforts and the potential harm to young people. Our brief also demonstrates that the statute is a proper exercise of New Jerseys power to protect the health and safety of its citizens. This brief was authored in whole by amici curiae and their counsel. No party to this litigation or its counsel, nor any third party contributed money to fund this brief. The brief is being filed with the consent of all parties.

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SUMMARY OF ARGUMENT N.J.S.A. 45:1-54, -55 prohibits licensed professional counselors in New Jersey from engaging in efforts to change the sexual orientation of minors. 1 This statutory objective reflects a broad consensus of responsible medical and mental health experts that efforts to change a childs sexual orientation may cause harm to the child, and that the use of Sexual Orientation Change Efforts (SOCE) provides no benefits that derive from SOCE itself and that could not be achieved through competent professional counseling that does not attempt to change sexual orientation. In the district court, Plaintiffs moved to temporarily restrain Defendants from enforcing the statute. App. 00141.2 The Court converted the motion to one for summary judgment, and Defendants cross-moved for summary judgment. App. 00272. The Court entered judgment for Defendants, upholding the law. App. 00069. This Court should affirm for at least three reasons. First, the statute is based on the current scientific understanding that homosexuality is not a mental disorder that can or should be cured. To the contrary, extensive evidence has led the medical and mental health community to conclude overwhelmingly that SOCE
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The statute was passed by the New Jersey Legislature and signed into law by Governor Christie in 2013 as Assembly Bill A3371. At the time the Plaintiffs brought suit, Assembly Bill A3371 had not been codified as a statute, and the parties referred in their district court papers to the statute as A3371. Where context requires, we use A3371.
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Amici cite to the Appellants appendix herein as App. and to Appellee -Garden State Equalitys proposed Supplemental Appendix as SA. 4

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violates standards of care, is not effective in changing a persons sexual orientation and may result in serious, life-threatening harm. New Jersey was on solid ground when it prohibited licensed mental health practitioners from subjecting minors to such practices. Second, the regulation of mental health care falls within the core, traditional police powers of the states, and New Jersey acted well within the scope of its police powers when it banned the provision of SOCE to minors under the imprimatur of a state license. Third, appellants are incorrect when they argue that the statute is unconstitutionally vague. To the contrary, it clearly defines those acts that the law prohibits. Indeed, numerous mental health care practitioners, through their professional organizations, including amici, actively participated in the legislative process. New Jerseys law was modeled on a nearly identical California statute, which was crafted with the input of medical professionals and mental health care professional organizations, including amici, and which the Ninth Circuit recently held was not unconstitutionally vague. See Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013).3 Those who practice in the field of mental health counseling, including Plaintiffs, are not confused by the statutes definition of the term sexual orientation change efforts. When a law is understood by those the law was intended to regulate, that law is not unconstitutionally vague.
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Plaintiffs petitions for panel rehearing and for rehearing en banc were denied on January 29, 2014. Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014).

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In short, the District Court was correct in concluding that the statute is a valid exercise of New Jerseys power to regulate licensed professional counselors within the state and to protect minor children from injury. ARGUMENT A. The Challenger Must Meet A High Burden Before A Lawfully Enacted Statute Can Be Held Unconstitutional. Those who challenge the constitutionality of a duly enacted statute bear a heavy burden. See Parham v. Hughes, 441 U.S. 347, 351 (1979) (State laws are generally entitled to a presumption of validity. . .). The presumption of validity attaching to state legislative and constitutional provisions weighs heavy. First Amendment Coal. v. Judicial Inquiry & Review Bd., 784 F.2d 467, 475 (3d Cir. 1986) (citing Clements v. Fashing, 457 U.S. 957, 963 (1982)). [The] presumption. . .require[s] that the states determination be upheld unless it is found to transgress a clear constitutional prohibition. Id. Further, a statute should be construed whenever possible so as to uphold [its] constitutionality. United States v. Vuitch, 402 U.S. 62, 70 (1971). A court cannot assume that state legislative enactments were adopted arbitrarily or without good reason to further some legitimate policy of the State. Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528 (1959). In considering A3371, the New Jersey Legislature relied on substantial evidence submitted by the professional and scientific communities most familiar with the mental health and well-being of minors with regard to sexual orientation. See pp. 10, infra. The resulting statute is entitled to a presumption of 6

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constitutionality and should not be overturned in the absence of egregious circumstances. First Amendment Coal., 784 F.2d at 475. B. The Legislature Analyzed Numerous Scientific Studies Conducted Over Several Decades Showing That SOCE Is Both Ineffectual And Potentially Harmful. 1. SOCE Is Grounded In Discredited Notions About The Causes Of Same-Sex Sexual Orientations.

In 2007, the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation began a systematic review of peer-reviewed journal literature on SOCE. In 2009, the findings of that Task Force were published as Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (Task Force Report or Report). App. 000278. The Report, along with voluminous other materials and the recommendations of numerous medical and mental health organizations focused on the needs of children and adolescents, provided the New Jersey Legislature with a factual basis for understanding the origins and effects of SOCE and for shaping the prohibitions at issue here. See N.J. STAT. ANN. 45:1-54 1(b). The Task Force Report explained the early historical premise for efforts to change sexual orientation and demonstrated that this premise has been thoroughly discredited as the profession of psychology has evolved. Specifically, the Report notes that the practice of SOCE developed more than one hundred years ago, at a time when same-sex relationships were considered to be both immoral and criminal. App. 000305; see also Lawrence v. Texas, 539 U.S. 558, 568 (2003) 7

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(noting laws from colonial times through the 19th century prohibiting crimes against-nature and otherwise criminalizing same-sex relationships). In the 19th century, social scientists began to view same-sex erotic attractions and gender non-conformity as medical conditions that sprang from psychological immaturity or pathology caused by physical factors (genetic defects or hormonal imbalances) or environmental factors (parent-child relationships, sexual abuse or moral decadence). App. 000305 (Task Force Report). The first [SOCE] treatments attempted to correct or repair the damage done by pathogenic factors or to facilitate maturity. Id. These Victorian-era theories about the causes and pathological nature of homosexuality informed early psychotherapeutic efforts to develop cures.4 During the 20th century, SOCE therapists posited additional theories as to the causes of same-sex attractionfor example, that gay men and lesbians suffered from phobias that prevented them from assuming the normal attributes of their gender. One influential therapist theorized that sex with a member of the opposite gender could cure a gay man or lesbian from such phobias. App. 000306 (Task Force Report). Other cures relied on aversion treatments, including induced nausea and vomiting, movement restrictions and paralysis, electric shock and other painful treatments, and hypnosis. Common non-aversive treatments
4

Some psychiatrists viewed homosexuality as developmental arrest but were skeptical of efforts to force changes in a persons sexual orientation. Dr. Sigmund Freud, for example, at the end of his only (and ultimately failed) attempt to change a patients homosexual orientation, concluded that such efforts were not likely to be successful. App. 000305 (Task Force Report). 8

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included educating patients on how to date and be affectionate with members of the opposite sex, reframing erotic desires and thoughts, and physical and social reinforcement to increase heterosexual behaviors. Id. By the 1960s, the scientific community began to reject these notions about the causes of non-conforming sexual orientation and the need for cures. Theories that classified same-sex attractions as pathological were shown to be invalid through rigorous scientific study, and the scientific community moved away from the notion that homosexuality is a problem to be solved. App. 00030607 (Task Force Report). Exemplary is a 1969 report by the National Institute for Mental Health concluding that homosexuality was neither a mental defect nor a disease. See NATL INST. OF MENTAL HEALTH, TASK FORCE ON HOMOSEXUALITY, FINAL REPORT (1969). In 1973, the American Psychiatric Association removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders (DSM) and adopted the position that homosexuality is not a mental illness. App. 000307 (Task Force Report). This event was important, because the DSM . . . provides clinicians and research investigators with a common language with which to communicate about the disorders for which they have professional responsibility. Sandgathe v. Maass, 314 F.3d 371, 382 (9th Cir. 2002) (citation and internal quotation marks omitted); see also Keller v. Larkins, 251 F.3d 408, 412 (3d Cir. 2001) (referring to the DSM as a standard reference work that lists and describes mental disorders); cf. Govt of Virgin Islands v. Knight, 989 F.2d 619, 629 (3d Cir. 1993) (relying on the DSM); Scott v. FCI Fairton, CIV. A. 09-4710, 2010 WL 3636286 (D.N.J. Sept. 9

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8, 2010) (relying on the DSM as reflecting the current state of psychiatric knowledge), affd, 407 F. Appx 612 (3d Cir. 2011). 2. Responsible Mental Health Organizations Have Concluded That SOCE Is Both Unnecessary And Puts Patients At Risk Of Significant Harm.

Since homosexuality was removed from the DSM, every mainstream mental health organization that has examined the practice of SOCE has advised its members to discontinue the unsupported and potentially dangerous practice. New Jerseys Legislature relied on this uniform, longstanding condemnation of SOCE by the major professional associations of mental health practitioners and researchers in finding that [b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. N.J. STAT. ANN. 45:1-54 1(a). The Legislature then catalogued, as part of the statute, the findings of ten mainstream mental health professional organizations that have concluded the significant harms reported by patients who have undergone SOCE clearly outweigh any purported benefits. Id. 1(b)-(m). In addition to the findings relied on in the statute, organizations, including amici, have continued to disavow the use of SOCE. For example, while the statute quotes a 1997 policy statement by amicus NASW, id. 1(h), the organization recently approved a more emphatic policy statement that it [stands] against reparative therapies and treatments designed to change sexual orientation or to refer clients to practitioners or programs that claim to do so. NATL ASSN OF SOCIAL WORKERS, SOCIAL WORK SPEAKS, Lesbian, Gay, and Bisexual Issues 219,

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222 (9th ed. 2012) (policy statement approved by NASW Delegate Assembly, August 2005). Likewise, in its letter supporting A3371, amicus NASW, the New Jersey Chapter, explained that it opposes the use of reparative or conversion therapies because these therapies are misleading and cannot and will not change sexual orientation, and not only is there no scientific data to support the success of reparative therapies . . . [s]uch treatments can potentially lead to severe emotional damage and dangerously deplete self-esteem. SA 222 (Exhibit 2 to Affirmation of Andrew Bayer). Moreover, AAMFT, represented here by amicus AAMFT-NJ, has disclaimed the use of SOCE, stating that it does not consider homosexuality a disorder that requires treatment, and as such, [it] see[s] no basis for such therapy. AAMFT Position on Couples and Families, adopted March 25, 2009, http://www.aamft.org/imis15/Content/About_AAMFT/Position_On_Couples.aspx. The American Academy of Child and Adolescent Psychiatrys Policy Statement regarding Sexual Orientation, Gender Identity and Civil Rights, approved in 2009, affirms the right of all people to their orientation and identity without interference or coercive interventions attempting to change sexual orientation or gender identity. See American Academy of Child and Adolescent Psychiatry, Sexual Orientation, Gender Identity, and Civil Rights, http://www.aacap.org/AACAP/Policy_Statements/2009/Sexual_Orientation_Gend er_Identity_and_Civil_Rights.aspx. Likewise, the Society for Adolescent Health and Medicines published position states that: For youth who are struggling with sexual orientation or gender identity, affirmative therapeutic approaches can help 11

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adolescents explore their identities in a healthy manner. Reparative therapy, which attempts to change ones sexual orientation or gender identity, is inherently coercive and inconsistent with current standards of medical care. Recommendations for Promoting the Health and Well-Being of Lesbian, Gay, Bisexual, and Transgender Adolescents: A Position Paper of the Society for Adolescent Health and Medicine, 52 JOURNAL OF ADOLESCENT HEALTH, 506, 50607 (Apr. 2013). Finally, amicus NJ Psychiatric Association has stated that the cost/benefit of efforts to change sexual orientation is so far on the side of likely to harm as to make any such efforts highly inadvisable. Letter from Vasudev N. Makhija, M.D., President, N.J. Psychiatric Association, to N.J. Assembly Woman & Children Committee (June 13, 2013) (On file with counsel). The uniform position of so many medical and mental health experts reflects overwhelming evidence of the need to protect minors against the potential harms caused by SOCE. 3. Apart From The Conclusions Of Professional Organizations, The Legislature Had Additional Evidence Showing That SOCE Provides No Demonstrable Therapeutic Benefit And Puts Patients At Risk Of Significant Harms.

Much of the evidence regarding SOCEs potential for harm that the New Jersey Legislature considered was outlined in the APAs Task Force Report. The Task Force Report lists, for example, a wide range of negative effects that some patients have suffered as a result of SOCE, including treatment-related anxiety, suicidal ideation, anger, self-hatred, depression, impotence, relationship 12

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dysfunction, sexual dysfunction and alcohol abuse. App. 000325-26. The Report notes that studies indicate that attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts. Id. at 000326. As the District Court noted, the Legislature explicitly recognized the Task Force Reports conclusion that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including among many other effects confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others. . . . App. 000007 (Opinion). The Task Force Report also concluded that enduring change to an individuals sexual orientation is uncommon. App. 000327. Further, it noted that [c]ompelling evidence of decreased same-sex sexual behavior and of engagement in sexual behavior with the other sex was rare and the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex attractions through SOCE. App. 000287. The Legislature also considered an article summarizing the conclusions of a peer-reviewed study published in 2009 in the journal Pediatrics, which supported the conclusion that [m]inors who experience family rejection based on their sexual orientation face especially serious health risks. Caitlin Ryan et al., Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults, 123 PEDIATRICS 346 (2009) (cited in 13

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N.J. STAT. ANN. 45:1-54 1(m)). That study showed that lesbian, gay, and bisexual young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, 3.4 times more likely to use illegal drugs, and 3.4 times more likely to report having engaged in unprotected sexual intercourse compared with peers from families that reported no or low levels of family rejection. The researchers found a clear link between parental rejection of a childs sexual orientation and health problems in young adults. Id.5 The Legislature further considered an article published in 2012 in the Journal of the American Academy of Child and Adolescent Psychiatry, which advised clinicians to be aware that there is no evidence that sexual orientation can be altered through therapy, and that attempts to do so may be harmful. There is no empirical evidence adult homosexuality can be prevented if gender nonconforming children are influenced to be more gender conforming. Indeed, there is no medically valid basis for attempting to prevent homosexuality, which is not an illness. On the contrary,
5

A later study, published in 2010, showed that there is also a correlation between family reactions to a childs disclosure of nonconforming sexual orientation and participation in SOCE. Elaine M. Maccio, Influence of Family, Religion, and Social Conformity on Client Participation in Sexual Reorientation Therapy, 57 JOURNAL OF HOMOSEXUALITY 441, 454 (2010). The likelihood of an individual participating in [SOCE] increased as his or her familys actual or expected reactions to his or her disclosure of same-sex sexual orientation became more negative . . . that is, the more negative the family reactions, the more likely the participation in [SOCE]. Id. at 451. As a result, one of the most vulnerable populations of sexual minorities (children who have been rejected by their parents or guardians) are also the most at risk of suffering the harms resulting from participating in SOCE. 14

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such efforts may encourage family rejection and undermine selfesteem, connectedness and caring, important protective factors against suicidal ideation and attempts. Given that there is no evidence that efforts to alter sexual orientation are effective, beneficial or necessary, and the possibility that they carry the risk of significant harm, such interventions are contraindicated. N.J. STAT. ANN. 45:1-54 1(k) (citing Stewart A. Adelson, Practice Parameter on Gay, Lesbian, or Bisexual Orientation, Gender Nonconformity, and Gender Discordance in Children and Adolescents, JOURNAL OF THE AMERICAN ACADEMY
OF CHILD & ADOLESCENT PSYCHIATRY

957 (2012)).

C.

In Addition To The Overwhelming Body Of Evidence Supporting The Legislative Objectives Of A3771, The Trial Court, In Dismissing Plaintiffs Claims, Had Additional Evidence Supplied By Expert Witnesses. In denying Plaintiffs motion for summary judgment and entering judgment

for Defendants, the District Court had the added benefit of declarations by experts retained by the State that detailed some of the evidence showing that SOCE can be harmful to those treated, and particularly to minors. Dr. Douglas C. Haldeman, a licensed psychologist in full-time practice who treats individuals who have undergone SOCE, described the kinds of harm reported by patients who had undergone SOCE. Those harms included depression, guilt, anxiety, low self-esteem, intimacy difficulties, sexual dysfunction, and suicidal ideation. SA 84-5 (Declaration of Douglas Haldeman, Ph.D. (Haldeman Decl.)). These problems were the direct result of harmful practices endemic to SOCE, including validating and reaffirming experience of rejection or maltreatment rooted in societys devaluation of gay men and lesbians, attempting

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to frighten patients into changing their orientation by presenting images of gay men and lesbians as depraved people, presupposing a preferred outcome which is typically in direct conflict with a patients actual emotional and physical experiences, and misleading patients with unsubstantiated treatments. SA 84-5, 88 (Haldeman Decl.). Dr. Haldeman also noted that minors are particularly vulnerable to harm from SOCE. LBG youth. . .are at a heightened risk of expulsion from family, loss of position in society, rejection from familiar institutions, loss of faith in and membership in the community and vulnerability to anti-gay biases. SA 84 (Haldeman Decl.). The failed attempt to change ones orientation, often perceived as a failure on the part of the client, exacerbates these risks and can cause emotional consequences such as depression, guilt, anxiety, low-self esteem, suicidal ideation and other negative consequences. Id. Minors are likewise particularly susceptible to coercion by family and faith communities who disapprove of their sexual orientation, and may have difficulty separating what they want from what their families or therapists want. SA 85 (Haldeman Decl.). SOCE may therefore appear to provide a means to gain approval and conform their identities and behaviors to familial and societal expectations. The potential consequences for minors who do not understand the risks, nor understand that other therapeutic interventions could assist to resolve conflicts between their sexual orientation, family expectations, and own religious values, include depression and suicide. Id. Children in particular, whose brain tissue in the prefrontal cortex is still developing in the early adolescence and teenage years, are 16

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much more vulnerable to the potentially traumatic effects of SOCE. Id. The State also submitted the Declaration of Dr. Gregory M. Herek, Professor of Psychology at the University of California Davis, who noted that the author of the most well-known questionnaire and study purporting to demonstrate SOCE can change sexual orientation, has recanted his conclusions with apologies to the gay community. SA 160-61 (Declaration of Gregory Herek, Ph.D. (Herek Decl.)). Dr. Laura Davies, a child, adolescent and adult psychiatrist in private practice and former Assistant Clinical Director of Child and Adolescent Psychiatry at the University of California San Francisco, submitted a declaration responding to the Plaintiffs claims that they would be precluded from treating victims of sexual abuse if they could not practice SOCE. Dr. Davies explained that there is no credible evidence that sexual abuse changes a persons sexual orientation and that attempting to change a persons sexual orientation is never an appropriate therapeutic response to sexual abuse. SA 132-33, 137 (Declaration of Laura Davies, M.D.); see also id. 139 (Subjecting sexually abused minors to SOCE has no medical or scientific basis and would compound the mental health risks that this population already faces as a result of their abuse.). D. Under Well Established Principles, States Are Permitted To Exercise Their Police Power To Regulate The Health Professions. New Jersey has broad authority to regulate health care professionals practicing within the state. See Goldfarb v. Va. State Bar, 421 U.S. 773 (1975). In Goldfarb, the Supreme Court recognized that the States have a compelling interest in the practice of professions within their boundaries, and that as part of 17

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their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions. Id. at 792. The power to protect the health of its citizens has long been recognized as fundamental to a states police power. See Barsky v. Bd. of Regents, 347 U.S. 442, 449 (1954) (It is elemental that a state has broad power to establish and enforce standards of conduct within its borders relative to the health of everyone there. It is a vital part of a states police power.); Zahl v. Harper, 282 F.3d 204, 211 (3d Cir. 2002) (Regulating matters of health is among the historic police powers of a state.). State regulation of the conduct of medical professionals has been particularly pervasive because of the states interest in protecting members of the public from incompetent, unethical, or dangerous practices. See Am. Inst. of Foot Med. v. N.J. State Bd. of Med. Examrs, 807 F. Supp. 1170, 1173 (D.N.J. 1992) (It is difficult to imagine a state interest more important than the protection of citizens against the harms of unethical or incompetent practitioners of the healing arts. (internal quotation marks omitted)); Watson v. Maryland, 218 U.S. 173, 176 (1910) (It is too well settled to require discussion at this day that the police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.). This is true even when the medical professionals conduct being regulated involves speech. The Supreme Court has held that when speech is part of the practice of medicine, [it is] subject to reasonable licensing and regulation by the State. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884 (1992) 18

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(plurality opinion) (rejecting First Amendment challenge to state law requiring doctors to provide certain truthful, non-misleading information to patients seeking abortion). Similarly, in Blass v. Weigel, 85 F. Supp. 775, 782 (D.N.J. 1949), the court declined to find an impermissible abridgment of free speech despite plaintiffs claim that a New Jersey licensing statute prevent[ed] him from disseminating information concerning the science of naturopathy. This Court has acknowledged the state interest in the licensing of health professionals. See Sammon v. N.J. Bd. of Med. Exam., 66 F.3d 639 (3d Cir. 1995) (affirming the Boards right to require licensing of midwives rendering medical services in New Jersey); see also Blass, 85 F. Supp. at 779 (upholding the states right to regulate the practice of medicine and allied professions within its borders). Here, deference to the states decision to regulate an aspect of the health profession is well supported. The Legislature held hearings on Assembly Bill A3371 to review the substantial body of scientific evidence detailing the health and safety implications of SOCE. See section B, supra; see also Bryant v. N.Y. State Educ. Dept, 692 F.3d 202, 216, 219 (2d Cir. 2012) (upholding State law prohibiting schools from engaging in aversive treatments on children with severe behavioral disabilities when reports showed such therapies raised a risk that patients would develop negative attitudes toward [themselves]). Interference in New Jerseys proper exercise of its police powers would encroach on its great latitude to legislate for the protection of its citizens. Medtronic, Inc. v. Lohr, 518 U.S. 470, 475 (1996).

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E.

The Legislature Established Clear Boundaries Between Conduct That Is Prohibited And Conduct That Is Not. 1. The Statute Is Not Vague.

This Court has repeatedly found that a facial vagueness challenge to a statute is disfavored. See, e.g., CMR D.N. Corp. v. City of Phil., 703 F.3d 612, 624 (3d Cir. 2013) (Our reluctance to recognize [plaintiffs] claims as facial challenges is supported by the Supreme Courts repeated admonitions that facial challenges are disfavored and should be considered sparingly.) (internal citations omitted); United States v. Fullmer, 584 F.3d 132, 152 (3d Cir. 2008) (facial challenges to statutes, including challenges based on vagueness, are disfavored). A facial vagueness challenge should succeed only if the enactment is impermissibly vague in all of its applications. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982) (emphasis added); see also Brown v. City of Pittsburgh, 586 F.3d 263, 269 (3d Cir. 2009) ([A] successful facial challenge requires the challenger to establish that no set of circumstances exists under which the Act would be valid.) (internal quotations omitted). As a result, a successful facial vagueness challenge is rare. The language of the statute is short and simple: it prohibits a professional licensed to provide counseling services under New Jersey law from engaging in sexual orientation change efforts with a person under 18 years of age. The statute defines sexual orientation change efforts as the practice of seeking to change a persons sexual orientation, and provides examples of what is and is not prohibited as part of this definition. N.J. STAT. ANN. 45:1-55 2(b).

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Consequently, it is clear what the statute proscribes in the vast majority of its intended applications. Hill v. Colorado, 530 U.S. 703, 733 (2000). Moreover, the statute regulates a profession in which the term sexual orientation change efforts has a specialized and well-understood meaning. It is well established [that] the [void for vagueness] inquiry is undertaken on a case by case basis. San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir. 1992). The Supreme Court has long upheld statutes as sufficiently certain when they rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them. Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926); see also United States v. Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1993) (where the statutory prohibition is addressed to a select group of persons having specialized knowledge. . .the standard is lowered and a court may uphold a statute which uses words or phrases having a technical or other special meaning, well enough known to enable those within its reach to correctly apply them.). Applying that principle, courts have uniformly required a heightened showing of vagueness when addressing the regulated conduct of professions. For example, in Doyle v. Secretary of Health & Human Services, 848 F.2d 296 (1st Cir. 1988), a medical professional challenged on vagueness grounds a statute requiring those who provide Medicare-reimbursed services to perform work of a quality which meets professionally recognized standards of health care. Id. at 298 (citing 42 U.S.C. 1320c-1 to 13 (1982 & Supp. IV 1986)). The First Circuit concluded that, even though [t]he definition of adequate medical care cannot be 21

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boiled down to a precise mathematical formula, the term had a reasonably clear meaning to those medical professionals the statute regulated, and thus the challenge failed. Doyle, 848 F.2d at 301 (citation and internal quotations omitted). Sexual orientation change efforts is a well-known phrase in the mental health community, including the members of amici. As discussed above (supra pp. 10-12), numerous professional organizations have issued statements against SOCE and have advised their members that they may not ethically employ such techniques. Plaintiffs themselves use the terms contained in the statute, such as SOCE, to describe the very sexual orientation change efforts they practice. App. 000167 (Declaration of Dr. Tara King) (I am a former lesbian who went through SOCE counseling and my life is proof that SOCE counseling can and does work. . . .); see also id. at 000168 (describing King of Hearts Counseling as offering SOCE counseling); App. 000087 (Complaint at 3) (referring to counseling such as sexual orientation change efforts (SOCE)). Plaintiffs claim that they do not know what practices fall under SOCE is belied by the record. 2. The New Jersey Statute Uses Language That Practitioners Understand Because it Comes From An Earlier California Statute.

The New Jersey legislature relied on the statutory language that the California legislature employed in a nearly identical law. See SB 1171, 2011-2012 Reg. Sess. (Ca. 2012). These statutes reflect an effort to craft a law that was both sufficiently broad to prevent evasion by therapists who persisted in using discredited and unsafe practicesi.e., by calling their practice by something other

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than SOCEbut also narrow enough that the definition would not inadvertently capture appropriate and useful forms of therapyi.e., discussing an adolescents sexual development. App. 000137 (Complaint Ex. B). The definition of SOCE was also amended to differentiate SOCE from psychotherapies dealing with sexual orientation in an appropriate and safe manner. The final result was the definition of SOCE that the New Jersey legislature also chose to use in drafting A3371: Sexual orientation change efforts means any practices by mental health providers that seek to change an individuals sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. Sexual orientation change efforts does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation. SB 1172 2(b)(1), (b)(2). Amici, representing the vast majority of affected practitioners, assure the Court that these definitions are clear, workable and fair in the context of the affected professions. CONCLUSION As the medical and mental health communities have made clear for the last forty years, homosexuality is not a mental disorder in need of a cure. The medical and mental health communities have advised against practices that attempt to change an individuals sexual orientation because such attempts can cause long term harm, particularly in the case of minors. Because of the risk of substantial 23

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harm to minors, the New Jersey Legislature appropriately exercised its police power to prohibit licensed mental health professionals from practicing SOCE in order to protect the health and safety of New Jersey citizens. The statute is precisely worded, while still allowing mental health practitioners to provide a safe therapeutic environment in which health professionals can facilitate their clients coping, social support, identity exploration and development. This Court should affirm the judgment of the District Court.

Dated: March 6, 2014 Respectfully submitted, ARNOLD & PORTER LLP TANYA E. KALIVAS By /s/ Tanya E. Kalivas TANYA E. KALIVAS

Attorneys for Amici Curiae, American Association of Marriage & Family Therapists-New Jersey Division; New Jersey Psychological Association; National Association of Social Workers; National Association of Social Workers, New Jersey Chapter; New Jersey Psychiatric Association

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CERTIFICATION OF BAR MEMBERSHIP Pursuant to Third Circuit Local Appellate Rules 28.3(d) and 46.1(e), I certify that I am a member of the bar of this Court. Dated: March 6, 2014 New York, New York Tanya E. Kalivas TANYA E. KALIVAS Attorney for Amici Curiae, American Association of Marriage & Family Therapists-New Jersey Division; New Jersey Psychological Association; National Association of Social Workers; National Association of Social Workers, New Jersey Chapter; New Jersey Psychiatric Association /s/

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CERTIFICATION OF COUNSEL Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify that this brief has been prepared in a proportionally spaced typeface using Microsoft Word in Times New Roman 14 point font and contains 5, 984 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). Pursuant to Local Rule 31.1(c), I certify that the text of the paper copies of this brief and the text of the PDF version of this brief filed electronically with the Court are identical. I further certify that prior to electronically filing this brief it was scanned by CA Software Anti-Virus Release 8.3.02, a virus detection program, and found to be free from computer viruses. On this date, seven hard copies of the Brief for Amici Curiae were sent to the Clerks Office. Pursuant to Local Appellate Rules 31.1(d) and 113.4(a), I caused the Brief for Amici Curiae to be served on counsel for Appellants via the Notice of Docket Activity generated by the Courts electronic filing system (i.e., CM/ECF). Dated: March 6, 2014 New York, New York Tanya E. Kalivas TANYA E. KALIVAS Attorneys for Amici Curiae, American Association of Marriage & Family Therapists-New Jersey Division; New Jersey Psychological Association; National Association of Social Workers; National Association of Social Workers, New Jersey Chapter; New Jersey Psychiatric Association /s/

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