(CN) — The 11th Circuit on Friday struck down bans on juvenile gay conversion therapy in South Florida, finding that therapists' free speech rights trump medical consensus about the harms associated with trying to change teenagers' sexual orientation.
Creating a split with the Ninth and Third Circuits, a divided panel ruled that a pair of South Florida laws that fined therapists for performing gay conversion therapy on kids were unconstitutional.
Palm Beach County and Boca Raton, a city within the county's boundaries, had enacted the laws in 2017, citing studies warning that juvenile gay conversion therapy poses a risk of psychological harm.
U.S. Circuit Judge Britt Grant, a Donald Trump appointee, discounted findings from what she referred to as "professional societies" including the American Academy of Pediatrics, which found that gay conversion therapy "can provoke guilt and anxiety while having little or no potential for achieving changes" in sexual orientation.
"Although we have no reason to doubt that these groups are composed of educated men and women acting in good faith, their institutional positions cannot define the boundaries of constitutional rights," Grant wrote for the majority.
Grant rejected the local governments' argument that they have broad authority to regulate therapists' conversations with patients as professional conduct.
The governments had argued that if therapist sessions were protected by the same free-speech rights as those imparted to the general public, there would be no way to regulate therapists at all since their treatment consists entirely of talking to patients.
Grant wrote in response: "If speaking to clients is not speech, the world is truly upside down. These ordinances sanction speech directly, not incidentally."
The 11th Circuit decision tosses out a lower court ruling that upheld the gay conversion bans.
The decision is binding on federal courts in the 11th Circuit's jurisdiction of Florida, Alabama and Georgia. So similar bans on speech-based gay conversion therapy in those states will now be deemed unconstitutional under case law.
The plaintiffs in the case were Robert Otto and Julie Hamilton, a pair of licensed South Florida therapists. They claim they do not use harsh methods such as a shaming in their conversion therapy sessions. According to their attorney, they "don’t set the direction” of the therapy, meaning they don’t encourage kids to change sexual orientation unless the children express a desire to do so.
Grant was joined in the majority by U.S. Circuit Judge Barbara Lagoa, another Trump appointee. Their decision hinged largely on a 2009 American Psychological Association report that found more research is needed to determine the psychological effects of so-called "non-aversive" gay conversion therapy, which supposedly avoids attaching negative connotations to homosexuality.
The APA's current stance is that "there is insufficient evidence to support the use of psychological interventions to change sexual orientation." After completing the 2009 assessment, the organization noted that patients' "hope of sexual orientation change followed by the failure of the treatment was identified as a significant cause of distress and negative self-image."
Grant acknowledged that the court's 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. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful," the judge wrote.
U.S. Circuit Judge Beverly Martin penned a dissent, saying she would uphold the bans regardless of whether the therapists' gay conversion therapy sessions are considered speech or professional conduct.
Martin, a Barack Obama appointee, wrote that regulation of "a harmful medical practice affecting vulnerable minors" falls within the narrow range of permissibility where government can curtail speech.
Martin said there is a "mountain of rigorous evidence" on the dangers of performing gay conversion therapy on youths.
"The [APA] Task Force Report catalogued recent studies reporting that patients who undergo [sexual orientation change therapy] experience negative consequences including 'anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family, loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction,'” the judge wrote.
Martin wrote that controlled, clinical studies on juvenile gay conversion therapy – the kind Grant says are lacking – would be unethical to perform since the practice is so widely deemed to be harmful.
Jamie Alan Cole, an attorney for the city of Boca Raton, declined to comment on the specifics of the case when reached by Courthouse News. He said "this is a difficult legal issue, as evidenced by the split decision."
"The city is analyzing the decision to determine how to proceed," Cole said.
Sister courts in the Ninth and Third Circuits in 2014 upheld similar bans on juvenile gay conversion therapy. Those decisions were handed down before the Supreme Court's ruling in NIFLA v. Becerra.
In that case, the high court struck down a California law requiring that pregnancy counseling centers give patients notice that the state has public programs providing free or low-cost contraception and abortion. Justice Clarence Thomas wrote for the majority that the Supreme Court "has not recognized ‘professional speech’ as a separate category of speech subject to different rules."
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