I respectfully dissent from the court’s holding that the record before us contains substantial evidence on the vital question: whether the act of moral turpitude involved affects appellant’s ability to practice his profession. Neither the court, nor the respondent board disputes the proposition that appellant cannot be disciplined merely because he has committed an act involving moral turpitude. “[T]he power of the state to regulate professions and conditions of government employment must not arbitrarily impair the right of the individual to live his private life [footnote omitted] apart from the job, as he deems fit. Likewise, here, private conduct of a man who is also a physician, is a proper concern to those who license him only to the extent that it marks him as a physician. Where his professional achievement is unaffected, where the patient community is placed in no jeopardy, his private acts are his own business and may not be the basis of discipline. . . .” (Grannis v. Board of Medical Examiners, 19 Cal.App. 3d 551, 561 [96 Cal.Rptr. 863];1 see also Yakov v. Board of Medical Examiners, 68 Cal.2d 67, 73, fns. 5 and 6 [64 Cal.Rptr. 785, 435 P.2d 553].)
To put this case in rather blunt perspective: appellant is apparently homosexual and on at least one occasion acted on his sexual tendency in a public toilet Evidence that appellant’s problem affects his ability to practice medicine could conceivably be of two kinds: evidence of specific instances in connection with his care and treatment of patients, or expert, testimony. Neither was offered in this case. The only evidence in the record before us is to the effect that appellant is a fine physician who functions well in the patient community.
What this court is really doing is to substitute a visceral feeling that the medical achievement of a homosexual doctor must be affected by his sex *1019drive—at least with respect to male patients—for evidence that this is so in this particular case. Thus there is nothing whatever in the record to support the court’s statement that “appellant’s problem apparently stays with him most, if not all of the time; and in light of his present conduct, there is little assurance that it will be relegated to isolated places and occasions away from his patients.” This—begging my colleagues’ pardon—flight of fancy is supported by nothing but a reference to the obvious fact that in the practice of medicine opportunity to falter in exercising restraint is ever present. The fact is, however, that there is no evidence that appellant has ever faltered in connection with the exercise of his profession.
Every calling has practioners who cannot or will not express their sex drive in socially or legally acceptable ways. In most professions unacceptable sexual practices usually do not endanger effective job performance. In medicine the opposite is obviously true. I suspect that the problem of the over-sexed physician—-“gay” or “straight"—is as old as medicine itself. Frankly, I do not know how the medical profession has dealt with it over the years. I do know, however, that if this court’s opinion is the law, any doctor who has violated acceptable standards of sexual behavior can be disciplined without proof that his deviation affects his professional competence.
While it is not a crime to be a homosexual, it requires no analysis of the Penal Code to demonstrate that homosexuals who act on their urges are more likely to run afoul of the criminal law than heterosexuals.2 Nevertheless, certain methods of seeking to gratify even a heterosexual libido are subject to criminal sanctions. (E.g., Pen. Code, § 647, subds. (a) and (b).) Yet I cannot bring myself to believe that the court would justify disciplining a doctor on no evidence at all except proof that he has violated section 647, subdivision (b), of the Penal Code by propositioning a policewoman in “plain clothes,” though we could say with just as much substance that a doctor who seeks sexual gratification by way of a sidewalk pickup, is never without his “problem” and that his intimate contact with patients of the opposite sex provides him with “opportunity to falter.”
The simple fact is that men, loaded with machismo, covertly envy a doctor whose professional life brings him into intimate contact with women. *1020They identify with the physician, rather than the patients, for whose feelings they could not care less; but in the case of the homosexual doctor they identify with the male patient and don’t like the idea.3
As far as the psychiatrists’ reports are concerned, all they tell me is that appellant has a problem. Undoubtedly therapy may help. The point is not, however, that the condition of probation imposed by the board may prove beneficial to appellant. It is, rather, that he has been disciplined on no evidence that his problem affects the practice of his profession.
I am puzzled by the court’s reference to the fact that 10 of 11 members of the respondent board are licensed physicians. As a justification for their imposition of psychiatric treatment as a condition of probation, the point is quite unnecessary. (Cadilla v. Board of Medical Examiners, 26 Cal. App.3d 961, 966-967 [103 Cal.Rptr. 455].) On the other hand, if the reference is intended to justify the finding of guilt on which the basic decision to revoke appellant’s license necessarily depends, I must respectfully protest the implied holding that the expertise of licensees sitting on disciplinary boards may serve as a substitute for substantial evidence that the moral turpitude of an accused licensee affects his ability to practice his calling or profession. Morrison v. State Board of Education, 1 Cal.3d 214, 227-228, footnote 21 [82 Cal.Rptr. 175, 461 P.2d 375] contains a full listing of the various professional boards which have the power to discipline licensees on grounds of moral turpitude. If the expertise of their members can take the place of evidence, the courts might as well go out of business as far as reviewing their orders on grounds of moral turpitude is concerned. I am not ready to concede that the expertise of, say, the State Board of Barber Examiners or that of the State Board of Funeral Directors and Embalmers makes it impossible to review their decisions on what acts involving moral turpitude affect the ability to cut hair or embalm.
As for the teacher cases cited by the majority—for example Pettit v. State Board of Education, 10 Cal.3d 29 [109 Cal.Rptr. 665, 513 P.2d 889] and Moser v. State Bd. of Education, 22 Cal.App.3d 988 [101 Cal.Rptr. 86]—they are clearly distinguishable on the basis of a teacher’s role in our society. Parents may expect a teacher who, after all, stands in their place for several hours a day, to be an “exemplar.” (Pettit v. State Board of Education, supra, 10 Cal.3d at p. 36.) The gap between *1021a teacher’s personal morality and its impact on his ability to function may be very narrow. On the other hand we do not go to see a doctor because we expect to pattern our lives after his.4
I would reverse.
It is evident from the context of Grannis that the court did not use the words “private” in the sense of “non-public,” but rather as meaning “off the job.”
In spite of the authorities cited by the court, I find it difficult to attach any importance to the fact that appellant has apparently violated the criminal law. While a psychiatrist may find significance in the fact that appellant’s bent is such that he is willing to take the risk of exposure involved in a brush with the police, the mere fact that the Legislature has chosen to impose criminal sanctions for a particular manifestation of a doctor’s sex drive, should be of no significance to the central issue—his ability to practice medicine.
Obviously, if the circumstances of appellant’s brush with the law became public knowledge, his practice may suffer. No one can stop present or propective patients from sharing the court’s instinctive feeling that being treated by appellant may lead to unpleasantness. That is unavoidable. A patient may refuse to associate with a particular doctor for no reason at all. A disciplinary board or a court must act on evidence.
Pettit and Moser are also distinguishable on various technical, legal grounds. However, since the court has decided to affirm and it is my purpose to raise a fundamental problem with its decision, I see no point in pursuing technicalities.