Opponent of Conversion-Therapy Ban Faces Uphill Battle at Fourth Circuit

The Lewis F. Powell, Jr. Courthouse, home of the Fourth Circuit, in Richmond, Va. (Acroterion via Wikipedia)

RICHMOND, Va. (CN) — An advocate for so-called gay conversion therapy could lose his challenge to Maryland’s ban on the practice because he lacks standing to sue, appellate judges indicated at a Fourth Circuit hearing Monday afternoon.  

Christopher Doyle, a psychotherapist licensed in Maryland who challenged a state law banning him from treating minor clients who wish to change their sexual orientation or gender identity, would have preferred the hearing to focus on his First Amendment religious liberty claim, but the three-judge panel spent a majority of the videoconference hearing debating whether he had a right to file suit in the first place. 

“A governor can’t be enjoined to enforce his laws, nor the attorney general, where he has no specific statutory authority” over them, said U.S. Circuit Judge Paul Niemeyer, a George H. W. Bush appointee.

Niemeyer asked why Maryland Governor Larry Hogan was the defendant in the case and not the state’s licensing. His line of questioning was quickly buffed by other panel members who asked exactly who enforces the law: the state’s top lawyer or the unnamed board that traditionally oversees professional conduct issues.

Doyle’s attorney, Mathew D. Staver with the Orlando-based Liberty Counsel, said his client can amend his complaint to add the licensing board, “but that’s not going to change the issue for the client” receiving the care.

“The client is going to be ultimately disciplined because they can’t get the counseling they seek,” Staver said. “They have no relationship to the licensing board, they simply want the treatment they seek.” 

But even the Donald Trump-appointed U.S. Circuit Judge Julius Richardson appeared skeptical. 

“It’s a standing problem,” Richardson asserted. “Your injury is that you were chilled by the threat of discipline, [but state law] doesn’t give the attorney general any disciplinary authority.” 

“Assuming you get past 11th Amendment immunity, what would a court order do to redress the discipline you allege?” the judge added, referring to legal protections for state governments. “That’s the part of this I’m having trouble seeing.” 

Staver responded, “Our client is concerned about the discipline, but he’s just as concerned about the enforcement of that action.”

Kathleen A. Ellis, a Maryland assistant attorney general who defended the state law, pointed to similar standing concerns. 

“Under administrative codes the board makes the decision [to discipline the practitioner.] If the licensee challenges the board’s decision, it is processed through the state court system on judicial review of an administrative decision and the attorney general’s office defends the action,” she said. “But it’s the board that makes the decision.”

Despite questions of standing dominating the 40-minute hearing, Richardson, who joined the conservative legal organization the Federalist Society in 2017, opened the door to questioning the evidence provided to the lower court. 

“If we get to the merits, there appears to be some plausible disagreements of various studies,” he said, pointing to a report by the 120,000-member American Psychological Association condemning the practice of conversion therapy while also elevating the theory, espoused by Doyle, that the same report is based on anecdotal evidence that could and should be used against such a finding. 

“The legislature found in reviewing the reports that conversion therapy can be harmful to minors and that there was no evidence that it provided a benefit,” Ellis responded.

“Assume there is a plausible claim that there is some benefit,” she added. “There also is a claim… that it’s harmful, and when there’s disputed medical or health care-related issues, the U.S. Supreme Court has recognized that legislatures can choose which group of claims to follow.” 

U.S. Circuit Judge Diana Motz, a Bill Clinton appointee, rounded out the panel. The judges did not signal when they intend to issue a ruling.  

Doyle’s case began last year when he first filed suit in Maryland federal court claiming the law, passed and signed into law by Republican Governor Hogan in 2018, violated the “sacred trust between client and counselor, and run roughshod over the fundamental right of client self-determination and the counselors’ cherished First Amendment liberties.” 

U.S. District Judge Deborah K. Chasanow was not persuaded by his claim, however, and dismissed the case for lack of standing in late 2019.

“Plaintiff’s First Amendment rights are not implicated here,” she wrote in a 25-page opinion. “The statute is narrowly tailored and thus plaintiff’s arguments are without consequence.”

The lower court did not take issue with Doyle naming Hogan as a defendant instead of the licensing board.

Conversion therapy bans have popped up around the country in recent years as the LGBTQ movement has gained acceptance and organizations like the American Psychological Association have determined the practice does more harm than good. 

“Multiple scientific studies suggest that SOCE [sexual orientation change efforts] may lead to depression, suicidal ideation, anxiety, substance abuse, impotence and sexual dysfunction, nightmares, gastric distress, dehydration, social isolation, deterioration of relationships with friends and family, and an increase in high-risk sexual behaviors, as well as a number of indirect harms such as loss of time and money,” the APA and other health care groups wrote in an amici brief to the Fourth Circuit supporting Maryland’s law. 

President Trump, however, has made religious liberty, and the idea that laws affirming LGBTQ rights run afoul of that liberty, a priority for the duration of his presidency. According to a McClatchy report, Secretary of State Mike Pompeo spoke virtually at a pro-conversion therapy event held in early October. 

To that end Liberty Counsel has led the charge in filings that hope to roll back bans on conversation therapy. A case out of Florida, Otto v. City of Boca Raton, was heard before the 11th Circuit earlier this year and an opinion is expected at any time. Two Trump-appointed judges heard that case, which also involves a First Amendment challenge to a local ban.

Meanwhile a second challenge in Florida, Vazzo v. City of Tampa, challenges the authority of a locality to ban the practice and instead suggests only the state legislature can alter health care rules. Briefs have been filed before the 11th Circuit in that case with a hearing expected soon. 

LGBTQ advocate and lawyer Shannon Minter, legal director with National Center for Lesbian Rights, was glad to hear the standing issues in Doyle’s case were examined so thoroughly and hoped the judges’ conservative leanings might not taint their eventual opinion.

“Maryland’s law simply codifies the medical consensus that trying to change a young person’s sexual orientation or gender identity is unethical, can cause serious harm, and is never an appropriate treatment for minors,” he said in an emailed statement following Monday’s hearing.  “We are confident that if the panel reaches the constitutional issues, it will uphold the law.”

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