Challenge to Gay Conversion Bans Hits 11th Circuit

MIAMI (CN) – The constitutionality of South Florida bans on juvenile gay conversion therapy is hanging in the balance in the 11th Circuit, where attorneys jousted Tuesday over whether the bans violate therapists’ free speech rights.

At issue is a lawsuit filed by two therapists challenging local laws that prohibit them and other licensed counselors from performing gay conversion therapy on minors. The local ordinances were passed by the city of Boca Raton and surrounding Palm Beach County.

The James Lawrence King Federal Justice Building, home of the 11th Circuit Court of Appeals’ Miami office.

The 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.

Last year, the district court denied the therapists’ request to halt the bans. The judge wrote that the “plaintiffs have not met their burden of showing that the ordinances violate the Free Speech Clause of the First Amendment.”

On appeal Tuesday in a special Miami hearing of the Atlanta-based 11th Circuit, the therapists’ attorney Mathew Staver urged the three-judge panel to overturn the lower court’s decision. The debate was focused on whether the gay conversion bans represent a regulation of professional medical treatment versus a curtailing of speech.

“[The laws] are unconstitutional content-based regulations that don’t survive strict scrutiny,” Staver told the court.

Under the strict scrutiny standard, a government body whose law’s constitutionality is challenged in court has the burden of showing that lawmakers narrowly tailored the law, had a “compelling interest” in passing it, and could not serve that interest through less restrictive measures. Staver claims the lower court incorrectly stopped short of applying strict scrutiny.

Boca Raton’s attorney Daniel Abbott bit back. He argued that if opposing counsel’s line of logic on free speech were followed, government bodies would end up having no power to regulate psychologists and counselors since their treatments consist primarily of speaking to patients.

“Wouldn’t it all be prior restraint?” Abbott asked rhetorically.

Abbott insisted that counselors are “not just speakers” during therapy sessions. They are carrying out a professional activity subject to government regulation, he argued.

“The government can end a practice that has been found to be harmful,” Abbott said.

U.S. Circuit Judge Beverly Martin pushed the therapists’ attorneys on where to draw the line between professional conduct and free speech.

“Our job as a court, whether we want to or not, is to develop these categories of what is conduct and what is speech. … Why is [gay conversion therapy] not conduct?” the Barack Obama appointee asked.

Staver responded by pointing to the U.S. Supreme Court’s decision in NIFLA v. Becerra. In that case — filed in part by anti-abortion group National Institute of Family and Life Advocates — 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.

In NIFLA, Justice Clarence Thomas wrote for the majority: “This Court has not recognized ‘professional speech’ as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by professionals.”

Thomas noted in the June 2018 decision that the Supreme Court has offered less than full protection for a professional’s speech in instances where that speech is incidentally restricted under a state regulation on professional conduct.

Both sides of the Florida case have used the NIFLA decision to try to bolster their arguments on whether the gay conversion therapy bans are constitutional.

Throughout Tuesday’s hearing, the therapists fought to dispel the notion that they were engaged in aggressive attempts to change patients’ sexual identity. Their attorney Staver claimed the counselors used neither shaming nor punishment, instead relying solely on conversation as therapy.

Palm Beach County’s attorney Helene Hvizd responded: “There is plenty of evidence in front of this court … that conversion therapy is harmful.”

Hvizd pointed to a study published in the Journal of Homosexuality, which found high rates of depression and suicide among gay youths whose parents sent them to conversion therapy.

Staver maintained that the plaintiff counselors “don’t set the direction” of the therapy, meaning they don’t encourage kids to change sexual orientation unless the children express a personal desire to do so.

Boca Raton’s brief to the 11th Circuit says there is strong consensus among medical organizations that conversion therapy is harmful. The brief cites an American Academy of Pediatrics statement: “Therapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation.”

Judge Martin was joined on the panel by U.S. Circuit Judges Britt Grant and Barbara Lagoa, who were both appointed by President Donald Trump.

The appellant therapists are Robert Otto and Julie H. Hamilton.

According to Boca Raton and Palm Beach County, the Third and Ninth Circuits have upheld laws in New Jersey and California, respectively, prohibiting conversion therapy on minors.

A Tampa ban on conversion therapy on minors was overturned by a district court judge last October. That litigation is on appeal in the 11th Circuit as well.

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