Editor’s note:
The Boca Raton City Council at a special Aug. 5 meeting unanimously repealed an ordinance that prohibits the use of conversion therapy on minors. Because council members acted on an emergency basis, the repeal is temporary. They will make it permanent at an Aug. 23 council meeting, when they are also expected to adopt a resolution that opposes conversion therapy for minors.
*****
By Mary Hladky
Boca Raton City Council members and Palm Beach County commissioners are being advised to repeal their bans on the controversial practice of conversion therapy.
The actions come shortly after a federal appeals court declined to reconsider a decision that struck down both the city’s and county’s ordinances.
The Atlanta-based 11th U.S. Circuit Court of Appeals on July 20 turned down the city’s and county’s requests that the entire court scrutinize a 2020 ruling by a three-judge panel that the bans were unconstitutional because they violated the free speech rights of two Palm Beach County therapists.
Since the ruling conflicts with decisions rejecting free speech challenges to bans by other federal appellate courts, the city and county potentially could appeal the decision to the U.S. Supreme Court.
Yet an adverse ruling by the high court would jeopardize other conversion therapy bans enacted by 21 states and about 100 cities and counties outside Florida that are not bound by the 11th Circuit’s decision, said Rand Hoch, president of the Palm Beach County Human Rights Council, who helped draft an ordinance that local governments could use as a model to prohibit use of the therapy on minors.
To avoid that outcome from a Supreme Court dominated by conservative justices, Hoch emailed county commissioners and Boca council members on July 28, asking that they repeal their ordinances and replace them with resolutions saying they oppose practicing conversion therapy on minors.
With the ordinances repealed, he said there will be no legal issue for the courts to decide.
The Human Rights Council, which supports LGBTQ youth, “does not want to jeopardize the existing conversion therapy bans,” he wrote.
County Attorney Denise Coffman, also on July 28, emailed county commissioners that she did not believe the county could win an appeal before the Supreme Court. She recommended the county end its legal defense of the ordinance and repeal it.
A Boca Raton spokeswoman said the city is aware of Coffman’s recommendation and that the city is “certainly disappointed” by the 11th Circuit’s ruling.
Boca Raton City Attorney Diana Grub Frieser has requested a private meeting with council members on the matter, but it had not been scheduled as of July 29. Such closed sessions are permitted to discuss litigation.
Conversion therapy seeks to change a person’s gender identity or sexual orientation. Many professional medical organizations, including the American Psychological Association and the American Academy of Pediatrics, have found it causes anger, anxiety, depression, guilt, hopelessness and suicide.
States, counties and cities have passed ordinances similar to Boca Raton’s and the county’s on grounds that conversion therapy not only causes psychological harm but also wrongly presumes that homosexuality and gender nonconformity are mental disorders that can be cured.
After the 11th Circuit’s panel issued its 2-1 decision, 25 cities and counties across the country supported Boca Raton’s and the county’s legal effort by signing a friend-of-the-court brief written by attorneys for Miami Beach.
Other signers in South Florida included Broward County, Boynton Beach, Delray Beach, Fort Lauderdale, Lake Worth Beach, Miami Beach, Oakland Park, Riviera Beach and West Palm Beach.
As is customary, the 11th Circuit judges in the recent ruling did not say why a majority would not grant an en banc rehearing by the full 11-member court.
While their decision not to rehear the case was stated in one sentence, it drew heated and sharply worded concurring and dissenting opinions that ran to 110 pages. In a concurring opinion, Judge Britt Grant, joined by Judges Elizabeth Branch and Barbara Lagoa — all appointed to the court by President Donald Trump — said the ordinances violated the First Amendment and called them “content-based restrictions of speech, not conduct.”
“The perspective enforced by these local policies is extremely popular in many communities. 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,” Grant wrote.
“What this Circuit has done — indeed all it has done — is uphold the protections of the First Amendment for unpopular speech,” she concluded. “That can be hard to do. But if the First Amendment only protected speech that judges and politicians approved of, it would not be of much use. We concur with the Court’s decision not to rehear this case en banc.”
In a 78-page dissenting opinion, Judge Robin Rosenbaum, joined by Judge Jill Pryor — both appointed by President Barack Obama — said that “every leading medical and mental-health organization” that has addressed conversion therapy “has uniformly denounced it.”
The concurring opinion incorrectly labeled “talk therapy” as “conversation” and “not medical at all,” she wrote. As a result, “no state or local government can require licensed mental-healthcare professionals to comply with any substantive standard of care at all in administering talk therapy. And no state or local government can even discipline licensed mental-healthcare professionals who violate the standard of care in administering talk therapy — no matter how incompetent or dangerous a practitioner’s practice of psychotherapy may be.
“That cannot be right. For that reason alone, this case demands en banc review.
“But that is not the only reason. Because the panel opinion effectively precludes all regulation of substantive talk therapy, it necessarily ensures that government cannot regulate types of talk therapy that significantly increase the risk of suicide and have never been shown to be efficacious.”
Comments