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A First: Appeals Court Overturns Bans on Therapy for Unwanted Same-Sex Attraction

Michael Foust | Contributor | Monday, November 23, 2020
A First: Appeals Court Overturns Bans on Therapy for Unwanted Same-Sex Attraction

A First: Appeals Court Overturns Bans on Therapy for Unwanted Same-Sex Attraction

A federal appeals court on Friday issued a landmark free speech ruling by striking down two local Florida ordinances that prohibit a type of therapy for children and teens who have unwanted same-sex attractions.

It was the first ruling of its kind by a federal appeals court.

At issue are ordinances in Boca Raton and Palm Beach County that prohibit therapists from engaging in counseling with the goal of reducing or changing a minor’s same-sex attractions. Liberty Counsel represented two licensed therapists who sued the city and county, asserting the laws violate the First Amendment right to free speech. The therapists said their clients typically have religious and Bible-based beliefs conflicting with homosexuality. The therapy is sometimes called “conversion” therapy.

In a 2-1 decision, the U.S. 11th Circuit Court of Appeals sided with the therapists in reversing a lower court’s ruling that had upheld the bans.

The bans are unconstitutional, the appeals court said.

“We understand and appreciate that the therapy is highly controversial,” Judge Britt C. Grant wrote for the majority. “But the 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.”

The two ordinances ban therapies for minors that seek to change “an individual’s sexual orientation or gender identity, including but not limited to efforts to change behaviors, gender identity, or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.”

Grant, in his decision, noted that both ordinances allow “counseling that provides support and assistance to a person undergoing gender transition.”

The ordinances, he said, discriminate against those who have a traditional view of sexuality. He labeled the ordinances an “egregious form of content discrimination.”

The First Amendment “protects speech itself, no matter how disagreeable that speech might be to the government,” Grant wrote.

“This decision allows speech that many find concerning – even dangerous,” Grant wrote. “But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful. And the same goes for gender transition – counseling supporting a client’s gender identification could be banned. It comes down to this: if the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere. People have intense moral, religious, and spiritual views about these matters – on all sides. 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.”

The two judges in the majority, Grant and Barbara Lagoa, were nominated by President Trump. Judge Beverly B. Martin, who dissented, was nominated by President Obama.

Martin called the therapy “dangerous.”

“The majority opinion has the result of inviting unethical research that is nowhere to be found in First Amendment jurisprudence,” she wrote.

Liberty Counsel applauded the majority 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,” said Liberty Counsel founder and chairman Mat Staver. “This case is the beginning of the end of similar unconstitutional counseling bans around the country.”

Photo courtesy: Rawpixel/Unsplash

Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chroniclethe Toronto Star and the Knoxville News-Sentinel.