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11th Circuit Says Sexual Orientation Conversion Therapy For Kids Cannot Be Prohibited

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By Joseph Fawbush, Esq. on November 23, 2020 3:59 PM

The Eleventh Circuit Court of Appeals held in a 2-1 decision that "gay conversion therapy" bans violate the First Amendment rights of therapists. In overturning the lower court, the Eleventh Circuit panel splits from the Third and Ninth Circuits. As a result, sexual orientation change efforts (SOCE) therapy in Florida, Alabama, and Georgia cannot be prohibited.

A Content-Based Restriction on Speech

The two Trump-appointed judges to reverse the lower court, Judges Britt Grant and Barbara Lagoa, held that bans on sexual orientation change efforts in talk therapy are a form of content-based restrictions that deserve strict scrutiny, labeling it an "easy" decision. While the city of Boca Raton argued that the bans were a form of professional regulation, "[f]orbidding the government from choosing favored and disfavored messages is at the core of the First Amendment's free-speech guarantee," Judge Grant wrote. What's more, "professional speech is not a traditional category of speech that falls within an exception to normal First Amendment principles."

Having established that the ban was a content-based restriction on speech, the majority reasoned it could not survive strict scrutiny. Despite the government's legitimate interests in protecting the health and safety of children, the government cannot restrict the ideas to which children are exposed, according to Judge Grant. Even if it was, Judge Grant argued, the studies do not conclusively prove that gay conversion therapy is harmful, and overwhelming majorities can change their mind. Judge Grant pointed out that it was only in 1987 that the Diagnostic and Statistical Manual of Mental Disorders delisted homosexuality as a mental disorder.

Dissent Argues Ban Survives Strict Scrutiny

Judge Beverly Martin, and Obama appointee, dissented, writing that the government has a compelling interest in protecting youth from the harmful effects of sexual orientation change efforts. According to the American Psychological Association, juvenile patients who undergo therapy designed to change their sexual orientation experience significant medical issues such as anxiety, depression, suicide ideation, deteriorated relationships, sexual dysfunction, and poor self-image. Judge Martin noted that Boca Raton's ban didn't prohibit SOCE therapy for anyone over 18, did not prohibit therapists from advocating for it publicly or even recommending a child undergo such talk therapy when they turn 18.

Because Judge Martin believes that such a prohibition survives strict scrutiny, she wrote that the "difficult" question of whether the ordinance was a content-based restriction need not be resolved. Judge Martin wrote in a footnote that the majority was incorrect to label this an "easy" decision, as previously the Supreme Court has held that "[a]n intermediate form of scrutiny is appropriate for reasonable regulations on the practice of medicine."

No Indication of Appeal

Boca Raton has not indicated it will appeal. The Supreme Court has recently been extremely favorable to religious rights arguments. Should the Supreme Court take up the case, it could overturn the Third and Ninth Circuit's decisions upholding such bans as constitutional. Absent an en banc review, this may be the end of litigation for this case.

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