Trump Appeals Panel Nixes Conversion Therapy Bans
Alarming 11th Circuit ruling could send issue’s fate nationwide to risky SCOTUS outcome
BY ARTHUR S. LEONARD
A three-judge panel of
the federal 11th Circuit
Court of Appeals
ruled on November 20
that ordinances enacted by Boca
Raton and Palm Beach County,
Florida, prohibiting licensed therapists
from performing conversion
therapy on minors violate the
therapists’ First Amendment free
speech rights.
The panel voted 2-1, with the majority
made up of judges appointed
by President Donald Trump —
Britt Grant and Barbara Lagoa.
Judge Beverly Martin, appointed
by Barack Obama, dissented.
Both laws at issue were enacted
in 2017, after the Florida localities
reviewed the voluminous professional
literature condemning
“sexual orientation change efforts”
(SOCE), commonly called “conversion
therapy,” as being fraudulent
and causing potential harm to minors.
Since local governments do not
have authority over professional
licenses granted by the state, instead
they authorized fi nes for licensed
counselors found to have
performed such “therapy.” The local
laws do not apply to unlicensed
counselors, such as religious counselors.
Nobody has actually been prosecuted
under either law, but two licensed
counselors, Robert W. Otto
and Julie H. Hamilton, represented
by lawyers from Liberty Counsel,
an anti-LGBTQ legal organization,
fi led lawsuits claiming the therapy
they provide consists entirely of
speech (rather than older coercive
aversion techniques) which cannot
be outlawed by the government.
Both asserted that they do not
claim they can change a person’s
sexual orientation, but that their
therapy is aimed at helping their
clients “reduce same-sex behavior
and attraction and eliminate what
they term confusion over gender
identity.” They also asserted their
patients “typically” have religious
beliefs that confl ict with homosexuality
and “seek SOCE counseling
11th Circuit Court of Appeals Judge Britt Grant, appointed by President Donald Trump in 2018 and seen
here with Georgia Republican Senator David Perdue, wrote the majority opinion against two local
ordinances in Florida banning conversion therapy as practiced on minors by licensed professionals.
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.”
Their appeal to the 11th Circuit
for a preliminary injunction
— pending a ruling on the merits
— against enforcement of the ordinances
sought to overturn a district
court ruling against them on
that point.
Similar laws passed by several
states and other localities have
been upheld against First Amendment
claims. Both the Third Circuit
Court of Appeals and the
Ninth Circuit, ruling on statutes
in New Jersey and California, respectively,
rejected the argument
that the First Amendment shields
“talk therapy” from state regulation.
Both decisions found that the
incidental burden on therapists’
speech was justifi ed by the government’s
legitimate role in regulating
the practices of licensed professionals.
The Third Circuit specifi -
cally held that when therapists are
using speech to provide “therapy,”
that is professional speech that
comes within the scope of regulatory
authority. Both courts recognized
the compelling interest of
states in protecting minors from
harm.
In 2018, the Supreme Court
OFFICE OF SENATOR DAVID PERDUE
ruled that a California law requiring
reproductive health clinics that
do not provide abortion services to
provide their clients with information
about the availability of such
services elsewhere was an unconstitutional
imposition of a speech
requirement at odds with the First
Amendment. California sought to
defend its law by invoking the concept
of “professional speech” as falling
within the state’s jurisdiction.
Writing for the court in that case,
Justice Clarence Thomas rejected
the idea that speech employed in
providing healthcare was a separate
category to be evaluated differently
from other forms of speech
that receive full First Amendment
protection. Thomas specifi cally
criticized the Third and Ninth Circuit
conversion therapy opinions.
Following Thomas’ lead, the
11th Circuit majority in this case
held that the local laws should be
reviewed under the “strict scrutiny”
standard, as a content-based
and viewpoint-based restriction on
speech. This means that the laws
would be treated as presumptively
unconstitutional, placing the burden
on the government to prove
they were necessary in achieving a
compelling state interest and were
narrowly tailored to avoid imposing
unnecessary burdens on free
speech.
HEALTH
Using that standard, the majority
concluded the laws were unconstitutional.
Although Judge
Grant, writing for the majority,
acknowledged that protecting children
from harm is a compelling
state interest, she rejected the argument
that harm to children had
been suffi ciently shown to justify
abridging free speech.
Pointing to the studies considered
by the Florida communities,
Grant wrote, “When examined
closely, these documents offer assertions
rather than evidence, at
least regarding the effects of purely
speech-based SOCE. Indeed, a
2009 report from the American
Psychological Association relied on
by the defendants, concedes that
‘non-aversive and recent approaches
to SOCE have not been rigorously
evaluated.’ In fact, it found a
‘complete lack’ of ‘rigorous recent
prospective research’ on SOCE.”
Grant noted that the same report
stated that “there are individuals
who perceive they have been
harmed and others who perceived
they have benefi ted from non-aversive
SOCE.’ What’s more, because
of this ‘complete lack’ of rigorous
recent research, the report concludes
that it has ‘no clear indication
of the prevalence of harmful
outcomes among people who have
undergone’ SOCE.”
She concluded, “We fail to see
how, even completely crediting the
report, such equivocal conclusions
can satisfy strict scrutiny and
overcome the strong presumption
against content-based limitations
on speech.”
Grant argued that people who
claim harm from SOCE practitioners
can bring malpractice claims
or fi le complaints with state regulators.
The panel reversed the district
court’s decision and sent it back
there, directing it to impose a preliminary
injunction pending the
case’s resolution on the merits.
Martin, the dissenting judge,
conceded that the ordinances are
subject to “strict scrutiny.” Given
➤ CONVERSION THERAPY, continued on p.20
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