A federal appeals court has issued a major blow against bans on conversion therapy for youth by ruling they violate the First Amendment, setting up a split within the judiciary that could lead the U.S. Supreme Court to adjudicate the issue on a nationwide basis.
In a 2-1 decision written by U.S. Circuit Judge Britt Grant, a three-judge panel on the U.S. 11th Circuit Court of Appeals in Atlanta determined municipal bans on conversion therapy for youth in the cities of Boca Raton and Palm Beach in Florida contravene the freedom of speech under the First Amendment.
"We understand and appreciate that the therapy is highly controversial," Grant writes. "But the First Amendment has no carveout 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."
Joining Grant in the opinion was U.S. Circuit Judge Barbara Lagoa, both of whom are Trump-appointed judges. Logoa was on the short-list of President Trump's potential choices to replace the late U.S. Associate Justice Ruth Bader Ginsburg on the Supreme Court before he ended up choosing Amy Coney Barrett.
Grant takes pain to show bans on conversion therapy should be subject to strict scrutiny because they are content-based restrictions, and neither the local government's insistence their professional regulations nor claims the speech is actually conduct can lower that bar.
"The First Amendment does not protect the right to speak about banned speech; it protects speech itself, no matter how disagreeable that speech might be to the government," Grant writes. "And what good would it do for a therapist whose client sought SOCE therapy to tell the client that she thought the therapy could be helpful, but could not offer it? It only matters that some words about sexuality and gender are allowed, and others are not."
The practice of therapy aimed at changing an individual's sexual orientation or transgender status is considered ineffectual at best and harmful at worst. Major medical and psychological institutions, including the American Psychological Association, the World Health Organization, the American Medical Association and the American Academy of Pediatrics, widely reject conversion therapy.
As a result of the decision, the three-judge panel reverses the preliminary injunction from U.S. District Judge Robin Lee Rosenberg in December upholding the bans on conversion therapy Boca Raton and Palm Beach counties. Further, the appeals court remands the case back to Rosenberg for review to deliver a new ruling consistent with guidance on the First Amendment.
Dissenting to the opinion was U.S. Circuit Judge Beverly Martin, an Obama appointee who concluded the majority's opinion on freedom of speech is off the mark.
"The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech," Martin writes. "Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist. I believe the localities' narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility."
Because of the 11th Circuit decision, any state or municipality within the jurisdiction — which constitutes Alabama, Georgia and Florida — would be unable to enact bans on conversion therapy. Moreover, existing bans on conversion therapy in Florida — which exist in around two dozen municipalities, including Miami, Tampa and Wilton Manors — are unconstitutional.
Kevin Jennings, CEO of the LGBT legal group Lambda Legal, condemned the decision in a statement as "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."
Jennings also pointed out the ruling came from Trump-appointed judges, accusing the Trump administration of having packed the judiciary at a time when progressives are calling for the expansion of the court under the Biden administration, which has been criticized by the other side as an attempt at court-packing.
"We fear that today's decision may be the tip of the iceberg in terms of the harm that may come from a federal judiciary that has been packed for the last four years with dangerous ideologues," Jennings said. "The damage done by this misguided opinion is incalculable and puts young people in danger."
Robert Otto and Julie Hamilton, who have engaged in conversion therapy with minors in Florida despite warnings against the practice, had challenged the municipal ordinances in the litigation and were represented by the Liberty Counsel, an anti-LGBTQ legal group.
Mat Staver, chair of the Liberty Counsel, hailed the decision against bans on conversion therapy in a statement as a win for free speech and predicting similar rulings would follow.
"This is a huge victory for counselors and their clients to choose the counsel of their choice free of political censorship from government ideologues," Staver said. "This case is the beginning of the end of similar unconstitutional counseling bans around the country."
Conversion therapy for youth is banned in D.C., Puerto Rico and 20 states: Connecticut, California, Delaware, Nevada, New Jersey, Oregon, Illinois, Vermont, New Mexico, Rhode Island, Washington State, Maryland, Hawaii, Virginia, Utah, Massachusetts, Colorado, New York, Maine and New Hampshire.
Will the cities seek Supreme Court review?
The cities of Boca Raton and Palm Beach have two options to appeal the decision and could either seek "en banc" review before the full 11th Circuit or petition the U.S. Supreme Court for review.
Jamie Cole, a partner with Weiss Serota Helfman Cole & Bierman P.L. and co-counsel for the City of Boca Raton, said via email to the Washington Blade the legal team is weighing its next steps.
"This is a difficult legal issue, as evidenced by the split decision," Cole said. "The city is disappointed with the majority decision but agrees with the well-written and well-reasoned dissent. The city is analyzing the decision to determine how to proceed."
Helene Hvisd, senior assistant county attorney for Palm Beach County, said the municipality "continues to review the majority and dissenting opinions as we weigh our options."
The 11th Circuit decision creates a split among circuit courts on the constitutionality of bans on conversion therapy. The U.S. 3rd Circuit Court of Appeals and the U.S. 9th Circuit Court of Appeals have previously upheld these bans as constitutional.
The split among the circuits on the issue may prompt the Supreme Court to take up the issue to resolve the constitutional issue on a nationwide basis — provided the municipalities submit a petition for review.
Shannon Minter, legal director of the National Center for Lesbian Rights, discouraged via email to the Washington Blade any attempt to call for resolution of the issue before the Supreme Court, which now has a 6-3 conservative majority as a result of Trump-appointed picks.
"I do not think this issue is ripe for Supreme Court review," Minter said. "Today's ruling is an outlier by two Trump-appointed judges. As the dissent points out, the decision is not well-grounded in precedent and ignores what the dissent rightly describes as a "mountain of rigorous evidence" that conversion therapy puts minors at risk of serious harms."
Minter urged the municipalities to take another course of action, saying "because the majority opinion here is so off track, seeking en banc review would be more appropriate than seeking Supreme Court review."
This article originally appeared in the Washington Blade and is made available in partnership with the National LGBT Media Association.