In a 2-to-1 decision, a federal appeals court panel held that Boca Raton and Palm Beach County ordinances banning counseling aimed at changing a minor’s gender identity or sexual orientation violate the First Amendment.
Judge Britt Grant’s majority opinion from the 11th U.S. Circuit Court of Appeals said the “talk therapy” of therapists Robert Otto and Julie Hamilton was protected under the First Amendment – and concluded that ordinances such as the one on the books in Boca Raton are unconstitutional.
A dissent by Judge Barbara Martin, however, notes that sexual orientation change efforts (SOCE) pose serious behavioral risks to both children and adolescents. Indeed, some studies correlate the therapists’ counseling efforts with increased risks of depression and suicide.
“This is a difficult legal issue, as evidenced by the split decision,” said Jamie Cole, an attorney with Weiss, Serota, Helfman, Cole & Bierman P.L. in Fort Lauderdale and part of the team that represented Boca Raton in the litigation. “The city is disappointed with the majority decision but agrees with the well-written and well-reasoned dissent. The city is analyzing the decision to determine how to proceed.”
The majority opinion notes that the therapists who sought an injunction against the local ordinances have clients who voluntarily participate in the sessions. The clients often hold religious beliefs that reject homosexuality, and they seek out speech-based counseling to reduce same-sex attraction and end confusion over their gender identity, the opinion states.
“People have intense moral, religious and spiritual views about these matters – on all sides,” Judge Grant 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.”
If the local governments’ position were affirmed, local communities would also be able to approve ordinances that prevent therapists from allowing talk therapy that supports and encourages the person undergoing a gender transition, the decision says.
Judge Martin’s dissent acknowledges that the case before the 11th Circuit revolves around the sensitive topic of when government agencies may regulate speech. Allowable restrictions on free speech, which must be narrowly constructed to address a compelling issue, are infrequent, but they exist, Martin said.
“I believe the localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility,” Martin wrote. “I would therefore affirm the district court’s denial of a preliminary injunction on the therapists’ free speech claim.”