The US Court of Appeals for the Eleventh Circuit heard oral arguments on Tuesday in a case filed by gay conversion therapists who argue that the practice should be protected by the First Amendment.
The Florida city of Boca Raton and Palm Beach County outlawed conversion therapy in 2017, part of a growing national and international trend. Opponents of the practice characterize it, as did Boca Raton’s attorney in court on Tuesday, as a “dangerous and ineffective medical procedure.”
The therapists’ complaint, however, argued that gay conversion regulations “storm the office doors of mental health professionals, thrust themselves into the therapeutic alliance, violate 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.” The plaintiffs in the Florida case contend that such rules “discriminate against [their] speech on the basis of the content of the message they offer.”
The district court denied their motion to enjoin the laws from taking effect. It was willing to see the bans as narrowly focused on a medical practice rather than a broad variety of speech. The governments “do ban efforts, through a medical intervention, by a licensed provider, to therapeutically change a minor’s sexual orientation,” the court wrote. But they “did not identify any problem with therapists providing coping strategies and support to children; they have identified problems with therapists providing” gay conversion treatment.
The therapists appealed the decision. Before the Eleventh Circuit on Tuesday, the plaintiffs’ attorney likened gay conversion therapy to a car’s GPS system, saying it was the patient, like the driver in a car, who asked for the therapist’s direction in overcoming homosexual attraction, not the therapist’s coercion controlling the patient. Asking the attorney to help delineate what aspects of the ban were at issue, one judge noted that it is the court’s job to determine “what is conduct and what is content” in terms of free speech in the medical sphere. The governments, she noted, had made efforts to narrow the scope of their rules to harmful conduct, such as by focusing on minor children only. In response, the therapists’ attorney characterized the bans as overly broad, prohibiting conversations essential to counseling in many situations with a transgender patient, for example.
Boca Raton’s counsel, in response, said that “there is not a single phrase or word that the ordinance prohibits these psychologists or anyone else from uttering.” Instead, he argued, it is a regulation of conduct by medical professionals, rather than speech. Under the ban, he said Psychologists can speak about and even recommend conversion therapy elsewhere, but if they are licensed and practicing in Boca Raton, they cannot themselves carry out the practice the city has extensive evidence is harmful. Their ability to cause harm as “trained professionals that learn methods and methodologies” capable of affecting their patients’ behavior, he said, renders them subject to regulation, unlike religious leaders or any person with “a soapbox on a street corner.”
The case is one of many lawsuits over gay conversion therapy currently occupying the courts, and many expect a high-profile example to reach the Supreme Court in the near future.