By Mary Hladky
A three-judge panel of the 11th Circuit Court of Appeals has struck down as unconstitutional Boca Raton’s and Palm Beach County’s bans on the controversial practice of conversion therapy.
The 2-1 ruling on Nov. 20 held that the bans violate the free speech rights of therapists who offer “talk therapy” to children who have “unwanted same-sex attraction or unwanted gender identity issues.”
“This decision allows speech that many find concerning — even dangerous,” Judge Britt Grant wrote for the majority. “But consider the alternative. If 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.
“People have intense moral, religious and spiritual views about these matters — on all sides,” she wrote. “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 wrote that conversion therapy — which seeks to change a person’s gender identity or sexual orientation — is known to be harmful. She cited many professional medical organizations that have warned it causes anger, anxiety, depression, guilt and hopelessness.
“It was reasonable for the localities to enact the ordinances based on the existing evidentiary record as to harm,” she wrote, while also noting that the ordinances were narrowly written to apply only to children.
Grant and Judge Barbara Lagoa were appointed to the 11th Circuit by President Donald Trump. Martin was elevated to the court by President Barack Obama.
Jamie Cole, an attorney representing Boca Raton, said the city “is analyzing the decision to determine how to proceed.”
“This is a difficult legal issue, as evidenced by the split decision,” he said. “The city is disappointed with the majority decision but agrees with the well-written and well-reasoned dissent.”
County Attorney Denise Nieman told commissioners they could accept the ruling or ask for a hearing before the entire 12-judge federal appellate court, The Palm Beach Post reported. If the plaintiffs lost there, she predicted they would appeal to the U.S. Supreme Court.
Boca Raton passed its ordinance, proposed by then-Mayor Susan Haynie, in 2017. It was based on a model ordinance drafted by the Palm Beach County Human Rights Council.
Two therapists, Robert Otto and Julie Hamilton, sued the city and county, arguing the laws violated their free speech rights. U.S. District Judge Robin Rosenberg did not grant their request for an injunction, and they appealed to the 11th Circuit.
Otto and Hamilton were represented by Orlando-based Liberty Council, a religious liberty organization that provides legal services on religious issues and is opposed to LGBTQ rights.
Twenty states and many cities, including Delray Beach, have passed similar ordinances on grounds that conversion therapy not only causes psychological harm but wrongly presumes that homosexuality and gender nonconformity are mental disorders that can be “cured.” Ú
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