Ban on therapy to change sexual orientation in minors violates First Amendment, 11th Circuit rules
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A federal appeals court on Friday blocked two ordinances on First Amendment grounds in Florida that ban licensed therapists from providing “conversion therapy” to minors.
In a 2-1 decision, the 11th U.S. Circuit Court of Appeals at Atlanta enjoined bans on the therapy by Boca Raton and Palm Beach County. Conversion therapy seeks to change sexual orientation for gay people and gender identity that is different from sex assigned at birth.
“The First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender,” Circuit Judge Britt Grant wrote in the majority opinion.
Bans on the therapy are content-based restrictions that can’t survive strict scrutiny, she said.
Grant referred to the therapy as “sexual orientation change efforts,” or SOCE. She noted that the plaintiffs had objected to the term “conversion therapy,” which they associate with “shock treatments, involuntary camps and other chimerical or long-abandoned practices.”
Grant is an appointee of President Donald Trump. Her opinion was joined by Judge Barbara Lagoa, a Trump appointee who was said to have been a top contender for the U.S. Supreme Court before Trump nominated Judge Amy Coney Barrett to fill the seat vacated by the death of Justice Ruth Bader Ginsburg.
Two other federal appeals courts have upheld bans on conversion therapy, according to Slate and Courthouse News Service. They are the 9th Circuit at San Francisco and the 3rd Circuit at Philadelphia. Twenty states ban the therapy for minors, along with Washington, D.C., and at least 83 municipalities, according to Slate.
Represented by Liberty Counsel, therapists Robert Otto and Julie Hamilton had challenged the therapy bans in the Florida communities as infringing on their constitutional right to speak freely with clients. They said their clients typically have sincerely held religious beliefs conflicting with homosexuality and voluntarily seek counseling.
Grant said the therapy is “highly controversial,” but “the First Amendment has no carveout for controversial speech.”
“This decision allows speech that many find concerning—even dangerous. But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. … It comes down to this: If the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere.”
Judge Beverly Martin, a circuit appointee of President Barack Obama, wrote a dissent.
“The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws’ narrow focus on licensed therapists practicing on patients who are minors,” Martin wrote.
The case is Otto v. City of Boca Raton.
Hat tip to @MJS_DC.