The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, in Otto v. Boca Raton, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit concluded that local bans on "sexual orientation change efforts (SOCE)" (aka "conversion therapy") are unconstitutional under the First Amendment. The laws in question, which had been adopted by Boca Raton and Palm Beach County, Florida, prohibited (in the words of the latter ordinance):
the practice of seeking 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.
The ordinances exempted clergy and "counseling that provides support and assistance to a person undergoing gender transition."
Splitting 2-1, the Eleventh Circuit panel concluded these laws were content- and viewpoint-based restrictions on speech that could not satisfy the requirements of strict scrutiny. The panel majority also rejected the localities' arguments that the laws were permissible regulations of "professional speech." (Note that the restrictions at issue were not imposed by the state licensing board, but by individual localities.]
Judge Grant wrote the opinion for the court, joined by Judge Lagoa. Judge Grant's opinion begins:
Boca Raton and Palm Beach County prohibit therapists from engaging in counseling or any therapy with a goal of changing a minor's sexual orientation, reducing a minor's sexual or romantic attractions (at least to others of the same gender or sex), or changing a minor's gender identity or expression—though support and assistance to a person undergoing gender transition is specifically permitted. These restrictions apply even to purely speech-based therapy. Two therapists argue that the ordinances infringe on their constitutional right to speak freely with clients. They appeal the district court's denial of their motion for a preliminary injunction. We understand and appreciate that the therapy is highly controversial. 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 that cannot survive strict scrutiny.
On whether the ordinances were content-based and viewpoint-based restrictions, Judge Grant wrote:
We cannot see how the regulations here can be applied without considering the content of the banned speech. Indeed, and as we said in Wollschlaeger, "this is not a hard case in that respect." 848 F.3d at 1307. The regulations are plainly "speaker-focused and content-based restrictions on speech": they limit a category of people—therapists—from communicating a particular message. Id. Consider again the similarities to Wollschlaeger. There, a Florida law prevented doctors from speaking to their patients about firearm ownership. See id. at 1302–03. Whether a doctor violated that law turned solely on the content of the message conveyed to the patient. Here too. Whether therapy is prohibited depends only on the content of the words used in that therapy, and the ban on that content is because the government disagrees with it. And whether the government's disagreement is for good reasons, great reasons, or terrible reasons has nothing at all to do with it. All that matters is that a therapist's speech to a minor client is legal or illegal under the ordinances based solely on its content. . . .
So the ordinances discriminate on the basis of content—at a minimum. They also discriminate on the basis of viewpoint. After all, the plaintiffs' counseling practices are grounded in a particular viewpoint about sex, gender, and sexual ethics. The defendant governments obviously hold an opposing viewpoint—one that they surely have the right to promote. . . . But they cannot engage in "bias, censorship or preference regarding [another] speaker's point of view." . . .
That the defendants did precisely that becomes even more obvious when considering the "exception" outlined in both ordinances. The exception expressly allows "counseling that provides support and assistance to a person undergoing gender transition." No such carveout exists for sexual orientation. The ordinances thus codify a particular viewpoint—sexual orientation is immutable, but gender is not—and prohibit the therapists from advancing any other perspective when counseling clients. That viewpoint may be widely shared in the communities that passed the ordinances, but widespread agreement is beside the point; the question is whether a speaker's viewpoint determines his license to speak. Here, the answer is yes.
Judge Grant's opinion concludes:
This decision allows speech that many find concerning—even dangerous. 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.
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). The challenged ordinances violate that principle, and the district court should have enjoined their enforcement. We therefore REVERSE the district court's order and REMAND for entry of a preliminary injunction consistent with this opinion.
Judge Martin dissented from the Court's decision. Her dissent began:
Today's majority opinion puts a stop to municipal efforts to regulate "sexual orientation change efforts" (commonly known as "conversion therapy"), which is known to be a harmful therapeutic practice. The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws' narrow focus on licensed therapists practicing on patients who are minors. Although I am mindful of the free-speech concerns the majority expresses, I respectfully dissent from the decision to enjoin these laws.
Later on, she writes:
The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech. Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist. See Williams-Yulee, 575 U.S. at 444, 135 S. Ct. at 1665–66. I believe the Localities' narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility. I would therefore affirm the District Court's denial of a preliminary injunction on the Therapists' free speech claim.
Given that laws prohibiting various forms of conversion therapy have been upheld in other circuits, there is now a circuit split on the constitutionality of such laws. This means that if a petition for certiorari is filed, it should stand a reasonable likelihood of being granted. If the localities here do not wish to pursue the issue, however, the existence of a circuit split should make it easier for others to bring this question before the Supreme Court.