A federal appeals court has blocked enforcement of local ordinances in Florida that ban conversion therapy that attempts to change the sexual orientation or gender identity of LGBTQ minors.
The court struck down measures passed in Palm Beach County and the city of Boca Raton that block the controversial practice of conversion therapy, saying the prohibitions violated the First Amendment and religious freedom.
In a 2-1 decision on Nov. 27, a panel of the 11th U.S. Circuit Court of Appeals sided with marriage and family therapists Robert Otto and Julie Hamilton, who challenged the constitutionality of the county and city ordinances.
Conversion therapy is a pseudo-scientific therapeutic practice that attempts to change a person’s sexual orientation or gender identity. It has been widely discredited, but remains legal for adults in every state and all but five countries. Germany banned the practice in May.
According to Lambda Legal, conversion therapy has been banned in 20 states and more than 70 municipalities within the U.S. Conversion therapy is banned statewide in New Jersey and Delaware and locally in Philadelphia and several other cities in Pennsylvania.
The Florida ordinances prohibited licensed counselors from “treating minors with ‘any counseling, practice or treatment performed with the goal of changing an individual’s sexual orientation or gender identity’” due to the health risk such treatment poses.
A federal district court had previously upheld those bans after several therapists sued Palm Beach and Boca Raton over the ordinances. The 11th Circuit Court of Appeals overturned that ruling, finding that the local Florida bans “violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”
Judges Britt C. Grant and Barbara Lagoa, both appointed by President Trump, wrote that while they “understand and appreciate that the therapy is highly controversial…the First Amendment has no carveout for controversial speech.” Lagoa was recently on Trump’s shortlist for the Supreme Court.
In their 27-page ruling, they wrote, “This decision allows speech that many find concerning — even dangerous.”
“But consider the alternative,” they wrote. “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.”
The therapists were represented by the Orlando-based Liberty Counsel, an organization that provides legal services on religious issues and is opposed to LGBTQ rights.
“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,” Liberty Counsel Chairman Mat Staver said in a media release. Staver is the former dean of Liberty University’s law school.
In their ruling, Grant and Lagoa also argued that there was no evidence proving conversion therapy is so harmful as to justify the free speech restrictions. They asserted that there has not been enough research done on conversion therapy and its impact to clearly indicate any real danger posed by the practice.
Their ruling states that the court “cannot rely” on professional organizations that oppose the practice, arguing that organizations “can do an about-face” on such views, citing the American Psychiatric Association’s reversal of its opposition to homosexuality.
In her 20-page dissent, Judge Beverly C. Martin wrote that the county and city “have validly identified a compelling government interest in protecting minors from a harmful medical practice.”
Martin asserted that the very research Grant and Lagoa demanded as “proof” of the dangers of conversion therapy “ignores the harm such studies would have on children,” and it “is not ethically permissible to conduct” studies proving the practice is damaging to minors.
Martin argued in her dissent that the Florida ordinances were “backed up by a mountain of rigorous evidence.” She cited the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association Council of Representatives, 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, saying all have found conversion therapy “pose[s] real risks of harm on children.”
But the majority argued for the First Amendment and religious free speech claim. Grant asserted, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Grant then stated, “The challenged ordinances violate that principle.”
Amit Paley, CEO and Executive Director of the Trevor Project, the leading national organization providing crisis intervention and suicide prevention services to LGBTQ people under 25, issued a statement on the ruling. Paley said, “Conversion therapy is fraud. No matter how hard you try, you cannot change a person’s sexual orientation or gender identity. This so-called therapy has only ever proven to produce negative mental health outcomes and increase the risk of suicide.”
Paley added, “This misguided decision sends a terrible message to the LGBTQ young people of Florida, who want nothing more than to be respected for who they are.”
Lambda Legal’s Born Perfect project states, “Conversion therapy professes to help lesbian, gay, bisexual, and transgender people to change or overcome their sexual orientation or gender identity. But this family of therapies has the opposite effect: reinforcing depression, low self-esteem, shame, addictive and compulsive behavior, loss of religious faith, self-harm, and suicidal tendencies. Conversion therapy also tears families apart, as it demands that youths erroneously blame their parents for their sexual orientation or gender identity.”
Lambda Legal says, “Conversion therapy is inherently harmful, unprofessional, unscientific, and fraudulent. Consequently, regional efforts to ban conversion therapy focus upon professional mental-health providers and their license to provide constructive, responsible, and professional care that is accepted and regulated by the mental-health science community.”
According to the Movement Advancement Project, conversion therapy has previously been subject to conflicting court rulings: bans on the therapy practice were previously upheld in federal appeals courts in New Jersey and California, but another Florida ban in Tampa was struck down by a federal court in 2019.
These conflicting rulings could lead inevitably to the U.S. Supreme Court. With the three new conservative justices ensconced by Trump, the court now has a 6-3 conservative edge. However, the Supreme Court declined to address this subject in 2017, leaving California’s law banning the practice in place.