November 20, 2020 at 10:58 am PST | by Brody Levesque
Federal Appeals Court voids ban on Conversion Therapy
Elbert P. Tuttle U.S. Court of Appeals Building, Atlanta, Georgia (Photo: U.S. Government)

ATLANTA – The U.S. 11th Circuit Court of Appeals, in a 2-1 decision Friday, voided a pair of local ordinances that were passed by the city of Boca Raton, Florida and surrounding Palm Beach County that prohibited therapists from offering so-called conversion therapy to minors struggling with their sexual orientation or gender identity.

In its ruling the court held that the bans were unconstitutional violating First Amendment rights on content-cased speech and religious freedoms.

The suit had been brought by two therapists that the ordinances targeted prohibiting them as well as other licensed counselors from performing gay conversion therapy on minors. They were represented by vehemently anti-LGBTQ Mat Staver, founder of Orlando-based Liberty Counsel, a law firm that seeks out legislation or regulatory mandates which uphold LGBTQ rights and challenges them in courts across the United States to overturn them.

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.

Reporting on the lawsuit, Courthouse News this past February noted that the Palm Beach county regulation provides for a fine of $250 for performing conversion therapy on a minor, with a $500 fine for each additional violation. The laws define conversion therapy as the practice of attempting to change a patient’s sexual orientation or gender identity.

In court filings Staver argued that the clients of the two therapists claimed that those persons they counseled had expressed “sincerely held religious beliefs conflicting with homosexuality,” and sought counseling to conform their identities and behaviors with those beliefs.

A federal judge in Miami had ruled that the “plaintiffs have not met their burden of showing that the ordinances violate the Free Speech Clause of the First Amendment.”

In the special hearing before the three judge panel of the 11th Circuit last February, the therapists fought to dispel the notion that they were engaged in aggressive attempts to change patients’ sexual identity. Staver argued that the counselors used neither shaming nor punishment, instead relying solely on conversation as therapy.

Leading mental health professional organizations, the American Pediatrics and American Psychiatric Associations are opposed to what both have termed “the damaging effects of conversion therapy.” 

“There is no evidence that it is helpful and plenty of evidence that it is psychologically harmful to participants.  The practice must be banned in order to protect the mental and emotional well being of both children and adults,” a spokesperson for the American Pediatrics Association told the Blade. “It can be reasonably argued that members of the LGBTQ community experience suicide and assault at greater rates than the general population, in part, due to the continued authorization of conversion therapy.”

“The archaic idea that mental health providers can or should change someone’s gender expression or gender identity or their sexual orientation is based on a history of stigmatization and subjective, restrictive sexual identities. It increases the risk of suicide of our LGBTQ children from trauma via conversion therapy,” Dr. Katya Dobrynin told the Blade.

Staver hailed the decision against bans on conversion therapy in a statement as a win for free speech and predicting similar rulings would follow the Blade’s Chris Johnson reported.

“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.”

Representative Ted W. Lieu (D-Los Angeles County) who authored the first ban on youth conversion therapy in the nation as a California State Senator and who introduced proposed legislation for federal bans in Congress told the Blade in an emailed statement;

“I am disappointed and dismayed at this court decision. It’s wrong on the facts. Banning conversion therapy doesn’t concern free speech – it’s about fraud. Conversion therapy peddles treatments for an ailment that doesn’t exist. There is nothing wrong with being gay, lesbian, bisexual, trans or queer. Suggesting someone can sell a “cure” to being LGBTQ+ is harmful and dishonest.”

In an email Friday, Palm Beach County Attorney Helene Hvizd told the Blade; “Palm Beach County continues to review the majority and dissenting opinions as we weigh our options.”   

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 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.”

Shannon Minter, legal director for the National Center for Lesbian Rights, discouraged via email to the Blade any attempt to call for resolution of the issue before 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.”

The Eleventh Circuit decision creates a split among circuit courts on the constitutionality of bans on conversion therapy. The U.S. Third Circuit Court of Appeals and the U.S. Ninth Circuit Court of Appeals have previously upheld these bans as constitutional.

The spilt among the circuit courts on the issue may prompt the Supreme Court to take it up to resolve the constitutional issue on a nationwide basis — provided the municipalities submit a petition for review.

Both appellate judges in the majority of Friday’s ruling were appointed to the bench by President Trump, while the dissenting judge was appointed by President Obama.

Link to the ruling is here.

Additional reporting by Chris Johnson

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