Federal appeals court upholds block on “talk therapy” ban

An Atlanta federal appeals court on Wednesday declined to disturb a 2020 ruling by a three-judge panel of the court that struck down a ban by Florida’s Palm Beach County and Boca Raton on the so-called practice of conversion therapy.

Family therapists Robert Otto and Julie Hamilton sued the county and city over local laws prohibiting licensed counselors from talking with teens experiencing unwanted same-sex attraction or struggling with their God-given gender. In a 2-1 opinion in November 2020, a panel of the court struck down the bans as violating the constitutional guarantee of free speech.

In Wednesday’s en banc ruling, the 11-member court did not elaborate on its reasoning for not reviewing the panel decision. But in a dissenting opinion, joined in part by three other judges, Circuit Judge Adalberto Jordan, an Obama appointee, accused the panel of “ignoring and/or revising the district court’s factual findings and failing to apply the clear error standard.” He said such reasoning “is seemingly becoming habit in this circuit.” That included the panel’s finding that talk therapy aimed at sexual orientation change is not medical at all and not conduct but speech protected by the First Amendment.

A second 77-page dissent authored by Circuit Judge Robin Rosenbaum and joined by Circuit Judge Jill Pryor—both also Obama appointees—went further, accusing the panel majority of precluding all regulation of talk therapy, which would increase the risk of suicide. “That includes the practice this case is about—sexual-orientation change efforts (“SOCE”), which is associated with more than doubling suicide attempts in the many LGBTQ youths who have been subjected to it,” claimed Pryor.

That and other comments by the dissenters were disputed by Circuit Judge Britt Grant who, joined by Circuit Judges Elizabeth Branch and Barbara Lagoa—all Trump appointees—wrote a concurring opinion sharply responding to the dissenters’ arguments. “Today’s dissenters decry the result of the panel decision—namely, that speech they consider harmful is (or may be) constitutionally protected,” wrote Grant. “But to reach their preferred outcomes, they ask us to ignore settled First Amendment law.”

Grant called out dissenting Justice Rosenbaum for refusing to recognize the bans for what they are. “Make no mistake: these regulations are content-based restrictions of speech, not conduct,” wrote Grant. “Talk therapy is certainly a form of treatment. But it ‘consists—entirely—of words.’”

Grant upbraided dissenters for attempting to remove content-based “professional speech” from First Amendment protection. She also noted the irony of the dissent’s unqualified trust in professional associations that support the bans, noting that “only a few decades ago the exact set of ‘leading professional bodies’ that the dissent trusts to regulate speech—and the research they relied on—endorsed treating homosexuality as a mental disorder.”

Mat Staver, founder and chairman of the Orlando-based Liberty Counsel and one of the attorneys representing the counselors, said the ruling was the beginning of the end of a rash of copycat talk bans enacted by states and municipalities. And for those in Alabama, Georgia, and Florida, states over which the court has jurisdiction, it’s the death knell, as this ruling will be controlling precedent, said Staver.

Yet the speech-conduct distinction dismissed by the panel majority is one that was embraced by a federal district court in Washington state in August 2021 when it upheld a state law barring licensed Christian family therapist Brian Tingley from counseling anyone younger than 18 with the goal of seeking to change sexual orientation or gender identity. Tingley has appealed the ruling to a federal appeals court. Oral arguments on his case were held in May.

Attempts have also been made to extend such bans to unlicensed counselors. In February, an Indiana city abandoned a ban that would have affected unlicensed Biblical counselors after a local group, Lafayette Citizens for Freedom, mobilized to oppose it.

The Supreme Court may ultimately need to weigh in. In a sense, it already has, said Staver, pointing, as did concurring Judge Grant, to the court’s 2018 ruling in National Institute of Family & Life Advocates v. Becerra (NIFLA). In NIFLA, the court ruled that a California state law requiring pro-life pregnancy life care centers to provide information about abortion and contraception services likely violated the centers’ First Amendment rights. The court did so while “specifically criticizing other circuit courts’ approval of ‘professional speech’ bans just like the ones we now consider,” wrote Grant.

The municipalities have not yet indicated whether they will appeal the ruling to the Supreme Court.