A federal court struck down laws that prohibit mental health professionals from counseling children and teens who are troubled by unwanted same-sex attractions or gender dysphoria.
On Friday, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit found in the case of Otto v. City of Boca Raton, FL, that such laws violate the First Amendment right to free speech.
Christian nonprofit litigation firm Liberty Counsel represents Drs. Robert Otto and Julie Hamilton, both licensed marriage and family therapists, and their minor clients who challenged ordinances enacted in Boca Raton and Palm Beach County that ban minors from seeking counseling regarding same-sex attractions or gender dysphoria from licensed therapists.
In the 2-1 opinion that reversed a lower court ruling, Judge Britt Grant, a President Trump appointee, wrote, “[T]he First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”
Nor can the local governments evade the First Amendment’s ordinary presumption against content-based speech restrictions by saying that the plaintiffs’ speech is actually conduct. We can understand why they would make this claim; if the ordinances restricted only non-expressive conduct, and not speech, then they would not implicate the First Amendment at all. Our Court, though, has already rejected the practice of relabeling controversial speech as conduct. In a case quite similar to this one, we laid down an important marker: “the enterprise of labeling certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation.”
The judge said the First Amendment “protects speech itself,” not “the right to speak about banned speech,” adding:
And what good would it do for a therapist whose client sought SOCE [sexual orientation change efforts] therapy to tell the client that she thought the therapy could be helpful, but could not offer it? It only matters that some words about sexuality and gender are allowed, and others are not. … But speech does not need to be popular in order to be allowed. The First Amendment exists precisely so that speakers with unpopular ideas do not have to lobby the government for permission before they speak.
Judge Barbara Lagoa, also a Trump appointee, joined Grant in the decision.
“This is a huge victory for counselors and their clients to choose the counsel of their choice free of political censorship from government ideologues,” Liberty Counsel chairman Mat Staver said in a statement. “This case is the beginning of the end of similar unconstitutional counseling bans around the country.”
LGBT activists and writers condemned the decision:
🚨11th Circuit rules that bans on anti-LGBTQ "conversion therapy" violate the First Amendment. 2–1 decision, both judges in the majority appointed by Trump. A really awful and frightening decision. https://t.co/7mMlM7zgiU
— Mark Joseph Stern (@mjs_DC) November 20, 2020
Conversion therapy is nothing less than child abuse.
— Lambda Legal (@LambdaLegal) November 20, 2020
Currently, 20 states and the District of Columbia have bans against what LGBTQ activists call “conversion therapy,” which they describe as “harmful” practices “that attempt to change [minors’] sexual orientation or gender identity.”
Gender ideology supporters claim therapists who do not immediately affirm the perception of young people claiming to be a gender that is incompatible with their biological sex are “harmful” and “abusive.”
In April 2019, an anonymous writer at The Federalist, who described herself as a mother of a gender-dysphoric teen, said she was writing to warn other parents that it was fast becoming “nearly impossible” to find a mental health professional willing to help children with sexual orientation/gender identity issues.
“I quickly discovered that it is nearly impossible to find therapists who do this kind of work,” wrote the mother. “If a girl presents as transgender today, the vast majority of therapists will immediately affirm the girl’s declared gender identity and ask her what steps she would like to take toward transition.”
Many mental health professionals from the states in which such therapy bans have passed are not willing to help a child explore his or her feelings or perceptions about sexual orientation or gender identity.
The anonymous mother wrote:
I interviewed at least a dozen therapists in search of one who could help my daughter examine her feelings and motivations. I finally resorted to paying out-of-pocket for my daughter to talk online to a therapist who lives in another state. I know I am not alone. I belong to an online support group of nearly 1,500 parents of gender dysphoric youth. Finding therapists who provide standard mental health therapy rather than automatic affirmation is a frustration for most of us.
Mental health professionals who work with children in states in which the LGBTQ activists have successfully banned traditional therapy with children would be risking their licenses and their livelihood if they took on such cases.
Walt Heyer, the founder of Sex Change Regret, referred to LGBTQ activists’ attempts to control the confidential discussions between children and teens and their therapists as “child abuse.”
“We need to be calling it what it is,” he said, as the Christian Post reported. “It’s not affirming a child. It’s causing them to be depressed and anxious about who they are.”
“The only reason I am able to speak to you today is because after 46 years dealing with this issue, I was able to de-transition in 1990 after I had psychotherapy, the very same psychotherapy [transgender activists] are trying to prevent people from having,” he explained. “Why? Because they don’t want them to de-transition.”