Court Strikes Down Speech Bans That Aimed to Fight 'Conversion Therapy'

AP Photo/Andre Penner

Last week, a panel on the 11th Circuit Court of Appeals effectively struck down two Florida bans on sexual orientation change efforts (SOCE) that sought to ban counselors from putting minors through “conversion therapy.” The court ruled that the laws violated the First Amendment by restricting free speech. While LGBT activists have rightly condemned the historic abuses of “conversion therapy” in the past, modern SOCE therapists use patient-directed talk therapy, not “shock therapy.”

When the City of Boca Raton and the County of Palm Beach banned SOCE counseling, licensed marriage and family therapists Robert Otto and Julie Hamilton sued, seeking an injunction to prevent the city and county from enacting their bans.

“Both therapists disclaim any ability to ‘change’ any person’s sexual orientation; they believe, however, that through speech-based therapy, their clients who wish to do so can reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity,” Judge Britt Grant wrote in her Otto v. Boca Raton (2020) ruling granting the injunction.

The therapists argue that “their clients typically have ’sincerely held religious beliefs conflicting with homosexuality, and voluntarily seek SOCE counseling 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.'”

Boca Raton banned “any counseling, practice or treatment performed with the goal of changing an individual’s sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions toward individuals of the same gender or sex.” Both this ordinance and the Palm Beach version contained one carveout: they allowed “counseling that provides support and assistance to a person undergoing gender transition.”

As Judge Grant wrote, “The ordinances thus codify a particular viewpoint—sexual orientation is immutable, but gender is not— and prohibit the therapists from advancing any other perspective when counseling clients.”

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This involves an unconstitutional restriction of free speech. “Whether therapy is prohibited depends only on the content of the words used in that therapy, and the ban on that content is because the government disagrees with it. And whether the government’s disagreement is for good reasons, great reasons, or terrible reasons has nothing at all to do with it. All that matters is that a therapist’s speech to a minor client is legal or illegal under the ordinances based solely on its content,” she wrote.

The city and county argued that the speech ban only applies to “professional conduct,” but Grant cited NIFLA v. Becerra (2018), in which the Supreme Court “rejected an attempt to regulate speech by recharacterizing it as professional conduct.”

Judge Grant ruled that the counseling bans do not satisfy the requirements of the strict scrutiny test, in which a government restriction on speech must be “narrowly tailored to serve compelling state interests.” Therefore, she granted the preliminary injunction.

Professional organizations have opposed SOCE talk therapy. However, even an American Psychological Association report — which the city and county cited to defend their bans — admits that “nonaversive and recent approaches to SOCE have not been rigorously evaluated.”

Judge Grant admitted that her ruling may seem “concerning—even dangerous” to many people. So she concluded the argument by encouraging LGBT activists to 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,” she argued. “People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.”

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Psychotherapists should have the freedom to explore a wide range of issues in therapy. Unwanted same-sex attraction or gender confusion often has psychological roots. People who previously identified as transgender but grew to reject that identity discovered that abuse in childhood had contributed to their gender confusion.

Yet LGBT activists stigmatize therapy that seeks to address issues behind unwanted same-sex attraction or gender dysphoria. The term “conversion therapy” is itself a weapon against therapy freedom.

Arthur Goldberg, founder of the therapy referral service Jews Offering New Alternatives for Healing (JONAH) objected to the term. “Conversion therapy is not even a term of art. It’s a misnomer. It’s a pejorative term that talks about emotional trauma and physical trauma,” he told PJ Media. JONAH did not recommend or carry out so-called “conversion therapy.” It gave people “references for therapy for underlying issues which may result in same-sex attraction.”

As ex-gay leader Christopher Doyle explains in his book The War on Psychotherapy, “One of the strategies that far-left advocacy and gay activist organizations use to smear professional psychotherapists assisting clients distressed by sexual and gender identity conflicts is to intentionally conflate professional therapy with religious practice and/or unlicensed, unregulated counseling. They do this by labeling all efforts—therapeutic, religious, or otherwise—to help clients distressed by sexual and gender identity conflicts [as] ‘conversion therapy.’”

Lawsuits against “conversion therapy” bans received a new lease on life thanks to NIFLA v. Becerra. In that decision, Justice Clarence Thomas explicitly struck down California’s law forcing crisis pregnancy centers to advertise abortion under the argument that states can regulate “professional speech.” In striking down California’s law, Thomas referenced a case (King v. Governor of New Jersey) involving bans on sexual orientation change efforts.

Otto v. Boca Raton represents a landmark case for therapy freedom. Just as pro-LGBT therapists should be allowed to use mainstream nonaversive talk therapy to help patients who want to reaffirm their LGBT identities, so Orthodox Jewish and conservative Christian therapists should be able to use the same kinds of therapy to help patients who struggle with same-sex attraction or gender confusion.

Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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