Local Governments, Groups Urge Rehearing on ‘Conversion Therapy’

By Jim Saunders, The News Service of Florida

TALLAHASSEE — Cities, counties and groups from Florida and other parts of the country are trying to help sway a federal appeals court to reconsider a potentially far-reaching decision that blocked bans on the controversial practice known as “conversion therapy.” 

The local governments and groups have filed requests during the past week to submit briefs in support of Palm Beach County and the city of Boca Raton, which sought a rehearing after a panel of the 11th U.S. Circuit Court of Appeals last month ruled that ordinances banning conversion therapy violated the First Amendment.

The Palm Beach County and Boca Raton ordinances barred therapists from providing treatment or counseling that is designed to change minors’ sexual orientation or gender identity. Critics of such therapy say it harms minors who are lesbian, gay, bisexual or transgender.

Motions to file friend-of-the-court briefs have come from groups such as the Florida Psychological Association, the Florida Chapter of the American Academy of Pediatrics and the American Foundation for Suicide Prevention.

A joint motion, filed by attorneys for Miami and Miami Beach, is backed by 25 cities and counties in Florida and other parts of the country that have approved similar ordinances. Among the Florida local governments signing on were Alachua County, Broward County, Fort Lauderdale, Gainesville, Tallahassee and West Palm Beach. Local governments from other parts of the country include St. Louis, St. Paul, Minn., and Pima County, Ariz.

The local governments’ joint motion said the appeals court panel’s decision “calls into question the long-recognized ability of states and municipalities to regulate medical professions.”

“The ordinances enacted by (the local governments filing the motion), like the ordinances challenged in this case, protect minors from a specific medical treatment that is widely recognized as harmful to the health of minor patients,” the motion said. “The panel opinion fails both to recognize government authority to regulate harmful medical treatments and to give appropriate deference to the substantial body of evidence that being subjected to conversion therapy puts minors at a dramatically increased risk of suicidality and other serious harms.”

The panel of the Atlanta-based appeals court, in a 2-1 decision, sided Nov. 20 with marriage and family therapists Robert Otto and Julie Hamilton, who challenged the constitutionality of the Palm Beach County and Boca Raton ordinances.

While acknowledging the controversy of the issue, the majority opinion said the ordinances violated the First Amendment rights of therapists who want to provide such treatment or counseling.

“This decision allows speech that many find concerning — even dangerous,” said the 27-page majority opinion, written by Judge Britt Grant and joined by Judge Barbara Lagoa. “But 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. And the same goes for gender transition — counseling supporting a client’s gender identification could be banned. It comes down to this: If the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere. 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.”

But attorneys for Palm Beach County and Boca Raton filed a petition Dec. 11 seeking a rehearing by the full appellate court — a request known as seeking an “en banc” hearing — or by the panel. The panel’s decision overturned a lower-court ruling and ordered that preliminary injunctions be entered against the Palm Beach County and Boca Raton ordinances.

In the motions to file briefs in support of a rehearing, the local governments and other groups raised a series of issues, with the Florida Psychological Association and the Florida Chapter of the American Academy of Pediatrics saying they have “grave concerns about the effect of the panel majority’s opinion on the ability of mental health-care professions to maintain baseline standards of evidence-based and ethical treatment.”

“If the panel majority’s ruling remains in place, and state and local governments are powerless to regulate this unscientific and harmful practice merely because — like the vast majority of psychiatric and psychological counseling — it is largely conducted through verbal communication, FPA and FCAAP (the Florida Psychological Association and the Florida Chapter of the American Academy of Pediatrics) are concerned that virtually all professional regulation of mental health treatment will be vulnerable to constitutional challenge,” the motion said.