A divided federal appeals court Friday struck down measures passed in Palm Beach County and the city of Boca Raton that blocked the controversial practice known as “conversion therapy,” saying the prohibitions violated the First Amendment.
A panel of the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, sided with marriage and family therapists Robert Otto and Julie Hamilton, who challenged the constitutionality of the county and city ordinances.
The ordinances barred therapists from providing treatment or counseling that is designed to change minors’ sexual orientation or gender identity. Critics of such therapy say it harms minors who are lesbian, gay, bisexual or transgender.
While acknowledging the controversy of the issue, the majority opinion said the ordinances violated the First Amendment rights of therapists who want to provide such treatment or counseling.
“This decision allows speech that many find concerning — even dangerous,” said the 27-page majority opinion, written by Judge Britt Grant and joined by Judge Barbara Lagoa. “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.”
But Judge Beverly Martin, in a 20-page dissent, wrote that the county and city “have validly identified a compelling government interest in protecting minors from a harmful medical practice.”
“The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech. Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist,” Martin wrote. “I believe the localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility.”
Kevin Jennings, chief executive officer of Lambda Legal, an organization that focuses on civil-rights issues involving LGBTQ people, issued a statement saying the majority opinion is a “marked departure from precedent and an incredibly dangerous decision for our youth.”
“So-called ‘conversion therapy’ is nothing less than child abuse,” Jennings said. “It poses documented and proven critical health risks, including depression, shame, decreased self-esteem, social withdrawal, substance abuse, self-harm and suicide. Youth are often subjected to these practices at the insistence of parents who don’t know or don’t believe that the efforts are harmful and doomed to fail: When these efforts predictably fail to produce the expected result, many LGBTQ children are kicked out of their homes.”
The majority opinion overturned a lower-court decision and ordered that preliminary injunctions be entered against the ordinances. Grant and Lagoa, a former Florida Supreme Court justice, were appointed to the Atlanta-based appeals court by President Donald Trump. Martin was appointed by former President Barack Obama.
In the majority opinion, Grant wrote that the ordinances included an exception that permitted therapists to assist people undergoing gender transition. She said that no “such carveout exists for sexual orientation.”
“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,” Grant wrote. “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.”