Florida city's efforts to ban controversial 'conversion therapy' remains blocked

The county and city sought a rehearing before the full Atlanta-based court.

click to enlarge Florida city's efforts to ban controversial 'conversion therapy' remains blocked
Dave Decker
A federal appeals court Wednesday refused to reconsider a decision that struck down measures passed in Palm Beach County and Boca Raton to ban the controversial practice known as “conversion therapy.”

The 11th U.S. Circuit Court of Appeals rejected a request by the county and city for a rehearing after a three-judge panel of the court in 2020 ruled that the bans violated the First Amendment. The county and city sought a rehearing before the full Atlanta-based court.

Wednesday’s decision was effectively a victory for marriage and family therapists Robert Otto and Julie Hamilton, who challenged ordinances that barred therapists from providing treatment or counseling designed to change minors’ sexual orientation or gender identity. Critics of such therapy say it harms LGBTQ youths.

While the overall court did not explain its reasons for declining to rehear the case, the decision drew heated concurring and dissenting opinions. Judge Britt Grant, in a concurring opinion joined by Judges Elizabeth Branch and Barbara Lagoa, said the ordinances violated the First Amendment, describing them as “content-based restrictions of speech, not conduct.”

“The perspective enforced by these local policies is extremely popular in many communities,” Grant wrote. “And the speech barred by these ordinances is rejected by many as wrong, and even dangerous. But the First Amendment applies even to — especially to — speech that is widely unpopular.”

Judge Robin Rosenbaum, however, wrote a 77-page dissent that said the government has the authority to regulate standards of health care, including what she described as “talk therapy” provided by mental-health professionals.

“The states’ police power to protect the public health and safety would mean little if the healthcare professionals they license — thereby giving their stamp of approval — could regularly practice substandard care and inflict serious harm and even death on their clients without even a reprimand,” Rosenbaum wrote in the dissent joined by Judge Jill Pryor. “Contrary to the panel opinion, the government’s ability to regulate licensed substandard healthcare providers does not change just because the vehicle for administering the treatment technique happens to be words.”

The three-judge panel’s November 2020 decision ordered that preliminary injunctions be entered against the Palm Beach County and Boca Raton ordinances. The county and city quickly asked for what is known as an “en banc” hearing before the full court and drew support from numerous other local governments in Florida and across the country.

As is common, the order Wednesday denying a rehearing did not detail how all of the judges voted on the issue. But concurring and dissenting opinions made clear that Grant, Branch and Lagoa were in the majority, while Rosenbaum, Pryor and Judges Adalberto Jordan and Charles Wilson were in the minority.

The concurring and dissenting opinions offered a glimpse of sharp disagreements, with Grant writing, for example, that the court’s role is to “apply the precedents that bind us, and Judge Rosenbaum’s attempts to justify the ordinances only reveal that it is impossible to do so under existing law.”

“This country’s guarantee of free expression has fostered many political, social, and religious debates, with our citizens encouraging one another to consider and reconsider the consensus position,” Grant wrote. “It has never been the judiciary’s role to moderate those debates, and we should not start now.”

Rosenbaum fired back, pointing to research that indicates the controversial therapy can increase the risk of suicide among LGBTQ youths.

“The sole purpose of administering a healthcare treatment technique — whether with a scalpel, drugs, or words — is to improve the client’s health, not to engage in ‘social, political, and religious debates,’” Rosenbaum wrote. “And it is antithetical to that purpose for licensed professionals to engage in a practice on their young clients that has repeatedly been shown to be associated with more than doubling the risk of death and has not been shown to be efficacious.”