By Mary Hladky
Boca Raton and Palm Beach County are pushing back against a federal appellate court ruling by a three-judge panel that struck down their bans on the controversial practice of conversion therapy.
The city and county filed a petition on Dec. 11 that seeks a rehearing of the case by the entire 11th Circuit Court of Appeals.
Cities and counties across Florida and in other states rushed to support Boca Raton’s and the county’s effort by signing on to a friend-of-the-court brief written by the city of Miami that had to be filed by Dec. 18. They include Delray Beach, Boynton Beach, West Palm Beach, Wilton Manors and Miami Beach.
“We are definitely expecting more from around the country and Palm Beach County,” said Rand Hoch, president and founder of the Palm Beach County Human Rights Council, which drafted a model ordinance that cities in Palm Beach County have used to enact their own conversion therapy bans.
Conversion therapy seeks to change a person’s gender identity or sexual orientation. The American Psychological Association and American Academy of Pediatrics, among others, have found it causes anger, anxiety, depression, guilt, hopelessness and self-harm.
Two marriage and family therapists — Robert W. Otto of Boca Raton and Julie Hamilton of Palm Beach Gardens — sued Boca Raton and the county in 2018, arguing that the bans violated their free speech rights.
U.S. District Judge Robin Rosenberg did not grant their request for an injunction that would have allowed them to continue providing conversion therapy while the court case was pending. They appealed to the 11th Circuit.
That court’s panel agreed that the bans violate the therapists’ free speech rights and directed Rosenberg to issue the injunction.
“People have intense moral, religious and spiritual views about these matters — on all sides,” Judge Britt Grant wrote for the majority. “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.”
In her dissent, Judge Beverly Martin cited many medical organizations that had warned conversion therapy causes harm, and that it was reasonable to enact bans. She noted that the city and county bans were narrowly written to apply only to counseling children.
In their petition for rehearing, the city and county argued that the ruling suggested it was a final decision in the case, even though the panel was simply reviewing the denial of a preliminary injunction.
They also contended the ruling did not give proper deference to Rosenberg’s factual finding that damage done by conversion therapy to LGBTQ youth “comes from well-known research organizations and subject matter experts.”
“The panel of the court purports to say we have decided the case without trial. That is the problem,” Hoch said.
“We want our day in court,” he said.
The 11th Circuit has long been viewed by lawyers as a conservative court. In recent years, it has become more so. Six of its 12 judges were appointed by President Donald Trump.
Two judges who struck down the bans as unconstitutional are Trump appointees.
Even so, Hoch doesn’t think this case is doomed.
The issue before the 11th Circuit is not conversion therapy, he said. Rather, it is whether Rosenberg ruled correctly in denying the injunction. That is a non-ideological matter for which the court has plenty of precedent.
Twenty states and more than 80 counties and cities have enacted laws prohibiting conversion therapy on minors.
Hoch said the bans in Palm Beach County have not been enforced because no children have come forward to say they have undergone the therapy and suffered because of it.
Even so, Hoch said, “it has been a deterrent.”
Jane Smith contributed to this story.