Tampa’s ban on conversion therapy struck down by federal judge

It’s not the city’s job to regulate health care treatments like therapy, says the judge, who also expressed concern about the violation of parents’ rights.
A federal judge has struck down Tampa's 2017 ban on so-called conversion therapy. The practice has been promoted by some religious groups as a way to a way to change someone’s sexual orientation or gender identity.
A federal judge has struck down Tampa's 2017 ban on so-called conversion therapy. The practice has been promoted by some religious groups as a way to a way to change someone’s sexual orientation or gender identity. [ Times ]
Published Oct. 4, 2019|Updated Oct. 4, 2019

TAMPA — A federal judge has struck down Tampa’s ban on so-called conversion therapy, a treatment promoted by some religious groups as a way to change a person’s sexual orientation or gender identity.

U.S. District Judge William Jung ruled Friday that the law, enacted in 2017, may conflict with a patient’s right to privacy and a parent’s right to choose health care for their children. Jung said state medical boards that oversee the licensing of mental health professionals already serve as a check on any malpractice.

“Substantive regulation of psychotherapy is a state, not a municipal concern,” Jung wrote in a 50-page opinion.

The law, enacted by City Council in 2017, was intended to protect young people from the practice, typically used on children who come out as gay or who identify as a gender different from the one assigned to them at birth.

Related: RELATED STORY: Lawsuit attempts to end conversion therapy ban in Tampa

It was challenged by Liberty Counsel, a Christian evangelical legal advocacy group based in Orlando. It sued the city in December 2017 on behalf of two licensed therapists, one of whom was later dismissed from the case because he did not practice in Florida. It is also challenging similar bans in Boca Raton and Palm Beach County.

“Regulating health care is above the pay grade of local municipalities,” Mat Staver, Liberty Counsel’s founder and chairman, said in a statement. “This ruling dooms every municipality in Florida and is the beginning of the end of more than 50 similar local laws around the country.”

Tampa City Attorney Gina Grimes said the city will consult with its outside counsel before deciding whether to appeal the ruling. She said its ban was modeled on one in Boca Raton, which was upheld after a similar legal challenge. That case is headed to an appellate court.

“The court did not rule on the constitutionality of the city’s ordinance prohibiting conversion therapy. Instead, it found that the states’ health care regulations prevent municipalities from regulating this type of counseling,” Grimes said.

Tampa City Attorney Gina Grimes.
Tampa City Attorney Gina Grimes. [ CITY OF TAMPA ]

Liberty is also behind a legal challenge to a statewide ban enacted in Maryland. A federal judge dismissed that lawsuit last month, leaving the ban intact. The group also represented Kim Davis, the Kentucky court clerk who made headlines in 2015 after refusing to issue marriage licenses to gay couples.

Conversion therapy has been deemed ineffective by mental health experts and broadly derided as potentially harmful. In some cases, it has been reinforced with electric shock therapy.

The American Academy of Pediatrics,the American Counseling Association, the National Education Association, the National Association of School Psychologists and the Child Welfare League of America are among the groups that have backed laws to protect children from the practice that some reports suggest increases the risk of suicide.

Related: Tampa’s ban on ‘conversion therapy’ has its day in court

But Jung, the judge, cited a 2009 American Psychological Association Task Force report that concluded that no study has come up with a clear picture of whether the practice produces either beneficial or harmful outcomes. And Tampa does not regulate similar health care related services such as massage therapy, acupuncture, optometry, tattoo parlors and medical labs, he wrote.

Tampa’s law was intended to target cases where therapists have a predetermined goal of converting children into being heterosexual or to the gender identity assigned to them at birth.

Therapists and counselors who offer the therapy to minors would have faced a $1,000 fine for a first offense and a $5,000 penalty for subsequent violations. It would have been enforced by city code enforcement officers.

The United States Supreme Court has previously upheld an appellate court decision allowing New Jersey’s anti-conversion therapy law to remain in effect. It also refused to hear challenges to California’s ban.

Nadine Smith, executive director of Equality Florida.
Nadine Smith, executive director of Equality Florida.

Friday’s ruling still leaves open the right for Florida lawmakers to enact a statewide ban on the therapy, said Nadine Smith, the executive director of Equality Florida, a group that advocates for the rights of Florida’s lesbian, gay, bisexual, transgender and queer community.

“What is clear from this ruling is that conversion therapy bans that protect children from this dangerous quackery are not unconstitutional," she said. “Florida should join the states that have eliminated this debunked and dangerous practice."