The Elbert P. Tuttle U.S. Courthouse in Atlanta, home to the U.S. Court of Appeals for the 11th Circuit. Credit: Wikimedia Commons
A divided panel of a federal appeals court has barred enforcement of ordinances in Boca Raton and Palm Beach County forbidding therapists to conduct “conversion therapy” to help minors change their sexual orientation, citing the protections of the First Amendment.
The local governments approved the ordinances, which exempted similar efforts conducted by religious organizations, in light of overwhelming condemnation of the practice by medical, psychiatric, and psychological organizations as both harmful to children and adolescents and ineffective.
However, in a ruling written by Judge Britt Grant and joined by Judge Barbara Lagoa of Florida, the U.S. Court of Appeals for the 11th Circuit ruled, 2-1, that the ordinances attempt to ban counselors’ speech because the governments don’t like its content, and that that is not allowed under the U.S. Constitution.
“We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carve-out for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny,” Grant wrote.
Judge Beverly Martin dissented, pointing to condemnations of the practice by the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, the American School Counselor Association, the U.S. Department of Health and Human Services, and the World Health Organization.
“Today’s majority opinion puts a stop to municipal efforts to regulate ‘sexual orientation change efforts’ (commonly known as ‘conversion therapy’), which is known to be a harmful therapeutic practice,” Martin wrote.
“The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws’ narrow focus on licensed therapists practicing on patients who are minors. Although I am mindful of the free-speech concerns the majority expresses, I respectfully dissent from the decision to enjoin these laws.”
Matt Staver, founder and chairman of Liberty Counsel, the conservative legal organization that represented two counselors who challenged the ordinance, welcomed the ruling.
“This is a huge victory for counselors and their clients to choose the counsel of their choice free of political censorship from government ideologues. This case is the beginning of the end of similar unconstitutional counseling bans around the country,” he said in a written statement.
The plaintiffs were Robert Otto and Julie Hamilton, licensed marriage and family therapists who wanted to practice ostensibly noncoercive “talk therapy” with minors suffering depression and anxiety because of internal conflicts over their sexual orientation or gender identity. They didn’t promise to make patients straight but believed “their clients who wish to do so can reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity,” Grant wrote.
U.S. District Judge Robin Rosenberg rejected their request to enjoin enforcement of the ordinances in February 2019. It was among a number of Florida battles over efforts to protect minors from conversion therapy. In October, a federal judge struck down a similar ordinance in Tampa on the ground that it improperly usurped the state’s responsibility to regulate health care. Proposed legislation to ban these ordinances died in the Florida Legislature earlier this year, as WUSF News reported.
The ordinances at issue in this case specifically allowed therapy for minors who wanted to change their gender expression.
The majority rejected the local governments’ arguments that the ordinances amounted to professional regulations and that the activity targeted was conduct, not speech.
It cited precedents including an 11th Circuit ruling in 2017 striking down a Florida law that attempted to prevent doctors from discussing the danger of guns with patients and a 2010 ruling by the U.S. Supreme Court striking down a Pennsylvania law outlawing commercial trade in videos depicting animal abuse.
“If adorable videos of puppies are allowed and horrifying videos of puppy abuse are not, that restriction is based on content, no matter how desirable it may be. And if Florida doctors may ask their patients about ownership of anything other than a firearm, that too is a content-based restriction. Those rules were obviously content-based because they regulated certain subject matters but not others,” Grant wrote.
In this case, “Whether therapy is prohibited depends only on the content of the words used in that therapy, and the ban on that content is because the government disagrees with it. And whether the government’s disagreement is for good reasons, great reasons, or terrible reasons has nothing at all to do with it. All that matters is that a therapist’s speech to a minor client is legal or illegal under the ordinances based solely on its content.”
The majority seized on the carve-out for gender identity counseling.
“The ordinances thus codify a particular viewpoint — sexual orientation is immutable, but gender is not — and prohibit the therapists from advancing any other perspective when counseling clients. That viewpoint may be widely shared in the communities that passed the ordinances, but widespread agreement is beside the point; the question is whether a speaker’s viewpoint determines his license to speak. Here, the answer is yes,” Grant wrote.
She waived aside evidence that the therapy is harmful as inconclusive, even pointing to the American Psychiatric Association’s decision decades ago to delist homosexuality as a mental illness.
“The association’s abandoned position is, to put it mildly, broadly disfavored today. But the change itself shows why we cannot rely on professional organizations’ judgments — it would have been horribly wrong to allow the old professional consensus against homosexuality to justify a ban on counseling that affirmed it,” Grant wrote.
“This decision allows speech that many find concerning — even dangerous,” she conceded.
“But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful. And the same goes for gender transition — counseling supporting a client’s gender identification could be banned.
“It comes down to this: If the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere. People have intense moral, religious, and spiritual views about these matters — on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.”
Martin gave the evidence of harm more credence, citing an American Psychological Association report concluding the practice instills “anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.”
That same organization concluded that “results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through [sexual orientation change efforts].”
That notwithstanding, Martin concluded that the religious exemption in the ordinances “was reasonable” and evidenced an effort to draw the ordinances as narrowly as possible.
“Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist,” she wrote.
“I believe the localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility. I would therefore affirm the district court’s denial of a preliminary injunction on the therapists’ free speech claim.
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