Federal Judge: Court Should Block Enforcement of Tampa 'Conversion Therapy' Ban
On Wednesday, a federal judge urged the district court to temporarily suspend the city of Tampa's ban on so-called "conversion therapy" — counseling efforts to help clients overcome unwanted same-sex attraction or gender dysphoria. Licensed marriage and family therapists Robert Vazzo and David Pickup, along with the Christian group New Hearts Outreach, sued Tampa for violating their free speech rights, in addition to other claims, back in December 2017.
U.S. Magistrate Judge Amanda Arnold Sansone issued a ruling urging the court to "preliminarily enjoin the enforcement of Ordinance 2017-47 to the extent the City may not enforce the ordinance against mental health professionals who provide non-coercive, non-aversive, SOCE counseling — which consists entirely of speech, or 'talk therapy' — to minors within the city limits."
The ban, adopted on April 10, 2017, outlaws counseling involving sexual orientation change efforts (SOCE) along with strategies to help patients overcome unwanted same-sex attraction or the persistent sense of identifying with the gender opposite their biological sex.
According to Judge Sansone's ruling, therapists Vazzo and Pickup testified that they never use "aversive" therapies — unpleasant stimuli to change behavior through punishment, such as "electroshock therapy" — and would not have filed the lawsuit if the city ordinance only banned such therapies. The therapists have testified that "clients, including minors, initiate SOCE counseling by giving their informed consent."
LGBT activists broadly oppose SOCE and many advocate laws that ban all forms of such therapy on the grounds that people cannot change their same-sex attraction or gender dysphoria and that any attempts to do so are by definition harmful, even if they are voluntary.
Therapists have sued to block such laws, however, since they restrict freedom of speech as protected in the First Amendment. When the Supreme Court struck down the idea of unprotected "professional speech" in the case NIFLA v. Becerra last year, challenges to SOCE bans received a new lease on life.
“The city of Tampa has no authority to prohibit counselors from providing counsel which their clients seek," Mat Staver, founder and chairman of the Christian law firm Liberty Counsel, which is representing Vazzo, Pickup, and New Hearts, said in a statement Wednesday. "Our counseling clients engage in 'talk therapy,' which is the common practice of counselors. This well-reasoned opinion underscores the serious First Amendment violations of laws that dictate what a counselor and client may discuss in the privacy of their counseling session."
"The government has no business eavesdropping inside the counseling session between a counselor and client," Staver declared.
Judge Sansone ruled that Vazzo, Pickup, and New Hearts have First Amendment free speech claims that entitle them to an injunction of the Tampa ordinance. The plaintiffs argue that the ordinance is unconstitutional because it is a content restriction that is not narrowly tailored; constitutes viewpoint discrimination; is unconstitutionally overbroad; bans speech before it is spoken; and is unconstitutionally vague.
If the ban were to come into effect, Vazzo and Pickup would be subject to a $1,000 fine for the first violation and a $5,000 fine for each following violation, regardless of whether or not the clients requested SOCE and regardless of whether the counselors used aversive methods, which they say they do not. This constitutes irreparable harm and justifies a temporary block on the ban, Judge Sansone argued.
Last week, Orthodox Jewish therapist Dr. David Schwartz filed his own lawsuit against New York City for its ban, which Schwartz aptly described as a "counseling censorship law."
"There's very, very clear censorship of speech being imposed here," Jeana Hallock, an attorney with Alliance Defending Freedom (ADF), the law firm representing Schwartz, told PJ Media last week. She quoted the NIFLA decision, saying, "The people lose when the government is deciding which ideas should prevail, and that's what the city council is trying to do here."
Earlier this month, ex-gay psychotherapist Christopher Doyle sued Gov. Larry Hogan (R-Md.) and Maryland Attorney General Brian Frosh over Senate Bill 1028, Maryland's law banning sexual orientation change therapy for minors, the Christian Post's Michael Gryboski reported. In addition to the Tampa therapists, Liberty Counsel is also representing Doyle, along with two other cases in Florida and California.
These "conversion therapy" bans are "all very similar," Staver told PJ Media last week. "They've all prohibited counselors from providing — and clients from receiving — any counsel to change their unwanted same-sex attractions, behavior, or identity, or gender confusion."
"This forces counselors to override the objective and autonomous will of the client when the client asks them to help counsel them to change behavior and address their unwanted feelings," Staver explained.
Contrary to the fears of LGBT activists, "counselors don't push clients in a direction they don't want to go," the Liberty Counsel chairman insisted. "They're kind of like a GPS. The client sets the destination, and the counselor guides them to it."
Judge Sansone's ruling is a limited win for the free speech argument against counseling censorship laws but the district court still has to decide whether or not to grant the Tampa counselors relief from the censorship law.
Follow the author of this article on Twitter at @Tyler2ONeil.