US appeals court rules bans on therapy for unwanted same-sex attraction unconstitutional

Reuters/Ben Nelms
Reuters/Ben Nelms

A federal appeals court on Friday ruled that bans on therapy for minors struggling with unwanted same-sex attraction violate the First Amendment of the U.S. Constitution.

In a 2-1 decision, the U.S. Court of Appeals for the 11th Circuit declared unconstitutional two ordinances banning sexual orientation change efforts therapy — which is often derisively called "conversion therapy" — in the city of Boca Raton and Palm Beach County, Florida. 

The court noted in its decision that in late 2017, Palm Beach County and Boca Raton had joined "a growing list of states and municipalities that prohibit controversial therapies called sexual orientation change efforts."

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Judge Britt Grant and Judge Barbara Lagoa, both of whom were appointed by President Donald Trump, sided with the plaintiffs, therapists Robert W. Otto and Julie H. Hamilton, licensed marriage and family therapists who provide counseling to minors who have unwanted same-sex attraction or unwanted gender identity issues.

The therapists argued that "the ordinances infringe on their constitutional right to speak
freely with clients" and violate, among other things, Florida’s Religious Freedom Restoration Act and their patients’ First Amendment right to receive information. 

“People have intense moral, religious, and spiritual views about these matters — on all sides,” Grant said. “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.”

The judge also quoted a previous Supreme Court judgment, Texas v. Johnson, adding, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Grant added: “We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”

In their majority ruling, justices Bitt and Lagoa noted that both the city’s and county’s ordinances were similar, except that the city had an exemption for clergy.

While both ordinances banned SOCE therapy that might “eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex,” they also contained a significant carveout to allow trans-affirmative therapy. Both “expressly allow counseling that provides support and assistance to a person undergoing gender transition.”

In their suit, the therapists explained 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.”

The dissenting justice, Judge Barbara Martin, appointed by former President Barack Obama, argued that SOCE therapy “is known to be a harmful therapeutic practice.”

“The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws’ narrow focus on licensed therapists practicing on patients who are minors,” Martin wrote. “Although I am mindful of the free-speech concerns the majority expresses, I respectfully dissent from the decision to enjoin these laws.”

For their part, the therapists stressed that their counseling involves “talk therapy,” conducted solely through speech, and doesn't involve shock treatments or other since abandoned practices deemed harmful. 

In an op-ed for The Christian Post, Liz Flaherty, author of Discover Eden: Empowering Christian Women to Walk in Sexual Liberty, wrote last year that some of the examples of conversion therapy described in hearings included such harmful practices as electric shock therapy, exposure to pornography, forced separation from loved ones, and extreme public shaming.

“However, the greater health care community, including those with faith-based practices, already considers these methods barbaric and unethical. Blasted by the media, this kind of conversion therapy has become a straw man, erected with the intent of advocating one-sided and biased counseling methods that support an ideology that sexuality is completely fixed,” she wrote.

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