In a 2-1 decision, the appeals court ruled that ordinances in the city Boca Raton and Palm Beach County banning “conversion therapy,” also known as sexual orientation change effort (SOCE) therapy, violate the U.S. Constitution’s protection of free speech and freedom of religion.
Circuit Judge Britt Grant stated that the First Amendment “does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.” This is even if enjoining the laws “allows speech that many find concerning – even dangerous.”
Bans overturned after challenge from therapists
The decision came after two licensed marriage and family therapists sued the two local governments. Julie Hamilton and Robert Otto argued that the ordinances “infringe on their constitutional right to speak freely with clients.” The two therapists also stated that their clients had “sincerely held religious beliefs conflicting with homosexuality” and had approached them seeking counseling to conform their identities and behaviors with those beliefs.
Both Grant and Judge Barbara Lagoa sided with the plaintiffs, while Judge Barbara Martin took the side of the local governments.
In making her decision, Grant quoted the Supreme Court decision in Texas v. Johnson, saying that “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.”
Mat Staver, who represented the therapists, called the decision “a huge victory” that enabled people to choose counseling free of government censorship.
As the lone dissenting judge, Martin argued that SOCE therapy is “known to be harmful 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,” she wrote. “Although I am mindful of the free-speech concerns the majority expresses, I respectfully dissent from the decision to enjoin these laws.”
SOCE remains controversial even after claims of harmful practices were debunked
Opponents of SOCE therapy argue that such therapy is emotionally harmful to patients, claiming that it leads to suicides, and therefore, governments need to ban the practice.
“We understand and appreciate that the therapy is highly controversial,” said Grant. “But the First Amendment has no carveout for controversial speech”
The defendants also raised concerns that SOCE therapy includes such practices as electric shock therapy, exposure to pornography, forced separation from loved ones and even extreme public shaming. But none of those practices were part of the methods used by Hamilton and Otto.
In an op-ed in The Christian Post, Liz Flaherty, author of “Discover Eden: Empowering Christian Women to Walk in Sexual Liberty,” wrote last year that these alleged practices were simply part of a “straw man” argument by those opposed to SOCE therapy – most therapists who practice SOCE actually consider these unethical.
“However, the greater health care community, including those with faith-based practices, already considers these methods barbaric and unethical,” wrote Flaherty. “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.”
Despite these, SOCE still remains a controversial practice. Licensed health care professionals remain banned from conducting it on children in a number of states and Washington, D.C., according to a June study by the Williams Institute at the University of California, Los Angeles School of Law. (Related: Utah bans “conversion therapy” for minor children who may have no idea what ‘LGBTQ’ even is.)
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