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Trump-Appointed Judges Find Conversion Therapy Bans Unconstitutional

Eleventh Circuit courthouse

A federal appeals court has blocked enforcement of two Florida laws banning the use of conversion therapy on minors.

The bans in the city of Boca Raton and Palm Beach County, which includes the city, violate the guarantee of free speech under the First Amendment to the U.S. Constitution, says a 2-1 ruling from the U.S. Court of Appeals for the Eleventh Circuit, issued Friday. Other courts have upheld such bans to date, including two at the federal appeals level, and the judges who ruled against the Florida bans were both appointees of Donald Trump. The decision applies only to Florida, Georgia, and Alabama — the states in the Eleventh Circuit. No cities or counties in Georgia or Alabama have such a ban, and none of the states has a statewide ban, so as a practical matter it affects only the municipalities in Florida that have adopted such laws.

“We understand and appreciate that the therapy is highly controversial,” the ruling reads. “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.”

Conversion therapy is designed to turn LGBTQ+ people straight or cisgender, and it has been condemned as ineffective and harmful by every major medical and mental health organization in the U.S. Twenty states have barred licensed therapists from subjecting minors to the practice, which is associated with heightened risks of depression and suicide.

But two therapists who practice in Boca Raton and Palm Beach County, Robert Otto and Julie Hamilton, had sued over the local laws, claiming free speech violations. They said they do not claim to be able to change a client’s sexual orientation, but that they “can reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity,” the ruling notes. They said any of their clients have “sincerely held religious beliefs conflicting with homosexuality, and voluntarily seek [sexual orientation change] counseling in order to live in congruence with their faith and to conform their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.” They are represented by Liberty Counsel, an anti-LGBTQ+ legal nonprofit organization.

A trial court had denied their request for a preliminary injunction to block enforcement of the laws, but the appeals court granted it. In a decision by a three-judge panel of the appeals court, two judges appointed by Trump ruled in favor of the injunction, one appointed by President Barack Obama against. The city and county could accept the ruling, effectively ending the case, or seek a rehearing by the full court of appeals, according to a message sent by Palm Beach County Attorney Denise Marie Nieman to the County Board of County Commissioners. She said she is continuing to review the ruling.

The judges ruling for the injunction said that banning the therapists’ viewpoint means governmental bodies could ban the opposite viewpoint. “This decision allows speech that many find concerning — even dangerous,” Judge Britt Grant wrote for the majority, 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.” Lagoa had been on Trump's shortlist for the Supreme Court position eventually filled by Amy Coney Barrett.

Judge Beverly Martin, who dissented, said the city and county’s restrictions were narrow enough to be legal. “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.”

LGBTQ+ organizations denounced the ruling. “Laws prohibiting this dangerous practice have withstood legal challenges in numerous courts,” said a statement from Lambda Legal CEO Kevin Jennings. “Today’s decision is a marked departure from precedent and an incredibly dangerous decision for our youth. So-called ‘conversion therapy’ is nothing less than child abuse. 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.

“Both judges joining today’s decision were appointed by President Trump. 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. The damage done by this misguided opinion is incalculable and puts young people in danger.”

“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,” said a statement from Amit Paley, CEO and executive director of the Trevor Project. “According to the Trevor Project's research, LGBTQ youth who had undergone conversion therapy were more than twice as likely to report having attempted suicide as those who did not. That’s why this dangerous practice has been discredited by major medical associations and prohibited by several Florida localities. 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. 

“It’s also worth noting that this decision is an outlier. All other federal appeals courts have upheld similar protections against conversion therapy. And 20 states and more than 80 localities have enacted similar laws with strong bipartisan support. At the Trevor Project, we will continue working to correct this wrong decision and to remind all LGBTQ young people that they deserve love and support.”

Shannon Minter, legal director of the National Center for Lesbian Rights, likewise noted that the ruling deviates from others. “The majority decision is an outlier and takes an extreme view of the First Amendment, holding that any regulation of talk therapy must survive strict scrutiny,” he said. “Similar laws have been reviewed and upheld by two other federal courts of appeal, both of which held that these laws regulate the provision of mental health care and are valid exercises of the government’s authority to protect public health and safety. As the dissent in today’s ruling pointed out, the majority opinion ignores a ‘mountain of rigorous evidence’ that conversion therapy puts minors at risk of serious harm. 

“Some commentators have noted that because there is now a circuit split on the constitutionality of these laws, the Supreme Court might hear this case. While that could happen, it is not clear that the defendants, in this case, two Florida localities, will seek Supreme Court review.  Given how out of step this decision is, they are more likely to consider asking the Eleventh Circuit as a whole to reconsider this case. But even if this issue were to reach the Supreme Court, there are strong precedents supporting the authority of state and local governments to regulate licensed health care providers and to pass laws to protect public health and safety.” 

“Every person in this country should be concerned by federal courts ignoring science and striking down laws that protect vulnerable young people from dangerous and unethical practices by licensed mental health providers,” noted Matthew Shurka, strategist for NCLR's Born Perfect campaign. “Today’s decision showed a shocking disregard for the overwhelming medical consensus that conversion therapy is harmful and dangerous, and that no young person should ever be subjected to this practice under any circumstances. We will continue to push for these laws and to help cities and states defend them when they are challenged.”  

Q Christian Fellowship issued a statement on behalf of LGBTQ+ people of faith: “We must vehemently condemn the Eleventh Circuit's flawed and dangerous ruling. It is imperative that LGBTQ+ Christians and allies — particularly those with public platforms — join us in speaking out against today’s ruling and standing in solidarity with victims of conversion and reparative therapies.”

“The practice of 'conversion therapy' is actually not a clinically tested medical therapy at all, and has been tragically shown to lead to depression, anxiety, drug use, homelessness, self-harm, and suicide, especially when practiced on children and teenagers,” added Orlando Gonzales, executive director of Florida-based Safeguarding American Values for Everyone. “We are committed to continuing to fight against this dangerous practice across Florida.”

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