Eleventh Circuit Opinions on the First Amendment and Bans on "Conversion Therapy" for Minors

In November 2020, a 2-1 Eleventh Circuit panel decision in Otto v. City of Boca Raton concluded:

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…. 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.

(See Jonathan Adler's post on the case.) Today, the Eleventh Circuit denied en banc rehearing, with several judges writing to concur or to dissent on that point; I'm slammed right now and can't quickly summarize or excerpt the opinions (which take up 110 pages), but I thought I'd link to them for the benefit of readers who are interested in looking through them.

Comments

[DaivdBehar]

Lawsuit abuse.

https://www.tmz.com/2022/07/19/sesame-place-family-black-girl-lawyer-ignore-rosita/

[DaivdBehar]

Just as leftist abominations in the class are persuading kindergarten students to switch genders, so can a therapist persuade them to switch back. This is a duty of therapists, since switching genders is associated with hideous health consequences and with fatal mental consequences like suicide.

[DaivdBehar]

It has become a fashion in kindergarten to be trans. Even prior to this groomer campaign, 80% of sincere kids never went on to stay trans with age.

[Rev. Arthur L. Kirkland]

Two Trump nominees, Federalist Society throwbacks who contend that wrapping bigotry in superstition somehow improves the bigotry, or -- a miracle! -- transforms it into something other than bigotry.

[Scooter]

NPC Alert/

[DaivdBehar]

Rev. Can you tell the class where you went to law school. That is great legal analysis. Exemplary, bruh.

[Michael Ejercito]

You must have flunked health class.

[Cheerio]

I don't think they actually took a position on whether or not it's bigotry (as that's not a judge's proper role).

But in any case, we have plenty of unanimous (and near-unanimous) SCOTUS rulings affirming that *even* if there's a *consensus* that something is bigotry, that is utterly irrelevant to 1A analysis.

[Bored Lawyer]

Yes, freedom of speech is only for those who agree with RAK.

[Rev. Arthur L. Kirkland]

Conservative bigots — of all of the many bigoted right-wing stripes — have rights, too.

But not the right to avoid being labeled as bigots. Racists. Superstitious gay-bashers. Immigrant-haters. Misogynists. Islamophobes. Christian dominionists. White nationalists. Bigotty, bigoted, Republican, conservative bigots.

[Seamus]

Yeah, it's bigoted to talk to kids in an effort to change their sexual orientation, so we need to ban that, but it's perfectly OK to lop off their body parts and give them drugs with irreversible physical effects in an effort to change their sex. Right, Rev?

[Longtobefree]

"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 . . . "

So it's anti-trans?

[BravoCharlieDelta]

I like how the Left thinks that if a little boy doesn’t want to be a boy that it’s so critically important that parent rights be abandoned and the entire world must be turned upside down.

But if that same little doesn’t want to be attracted to boys, then holy hell fuck him and the horse he road in on, no doctor not even their parents (in Canada) can help him in anyway try to be normal.

The Left are objectively evil. What they do and want to do to children is universally repugnant.

Satan is real and the Democrats are his subhuman minions.

[DaivdBehar]

Democrats are groomers, teaching the highly technical details of butt banging to our students.

[Sarcastr0]

If it worked at all, maybe.

Right now there is little evidence it is more than torture, physical and psychological.

The Left are objectively evil. What they do and want to do to children is universally repugnant.
Jesus Christ you drama queen. Start killing liberals if that's your worldview - make the world a better place.

Except you won't because you don't believe that - you just play an asshole on the Internet for reasons I cannot fathom.

[BravoCharlieDelta]

Do you think there's more evidence of harm for conversion therapy on children or for gender-affirming therapy?

[BravoCharlieDelta]

Except you won't because you don't believe that - you just play an asshole on the Internet for reasons I cannot fathom.

I do believe it. I evangelize on the internet and spread the news of Satan and his Democrat bootlickers to open the eyes of others so they can see it too, then believe it for themselves.

I'm pretty sure that viewpoint has reached a plurality.

[Nisiiko]

No, they won't because there's not enough people who support wiping the leftist vermin off the earth yet. Until you have a critical mass, you're just a terrorist.

[Rev. Arthur L. Kirkland]

How are those civility standards you claimed to be enforcing when censoring liberals coming along, Prof. Volokh?

[TwelveInchPianist]

"Jesus Christ you drama queen."

Not so much. Your side favors castration and double mastectomies of healthy children. That's evil.

And you're trying to ban the treatment that would prevent it.

[Sarcastr0]

Well, then, if you think that strawman is real, you should start The Purge as well.

Foolishness.

[TwelveInchPianist]

Not a strawman.

[TwelveInchPianist]

"Right now there is little evidence it is more than torture, physical and psychological."

Say a little girl goes to a psychologist and says she thinks she's a man trapped in a woman's body. The shrink says her symptoms indicate she's more likely suffering from depression instead, why would you want to ban him from talking about that, and treating her?

[Sarcastr0]

More like you want to bring up some off topic drama you don't seem to have really looked into but want to rage about.

Yeah, misdiagnosing depression is bad. Great point.

Do some research beyond whatever rot you got that from says because I don't know a lot about the area, but I do know you're wrong about how gender dysphoria is diagnosed and treated.

[TwelveInchPianist]

"Yeah, misdiagnosing depression is bad. Great point."

Thank you. I'm against laws that require that, myself.

"Do some research beyond whatever rot you got that from says because I don't know a lot about the area, but I do know you're wrong about how gender dysphoria is diagnosed and treated."

Diagnosed? You go to your GP, or planned parenthood, and tell them that you identify as a gender other than your biological sex.

They give you hormones, and you may or may not have a few follow up phone calls or visits.

Then you schedule surgery on the time frame you see fit.

[Joe_dallas]

Sarcastro - the vast majority of transgender is misdiagnosing a mental illness .

Screwing up a misdiagnosis of depression is bad - misdiagnosing a mental illness as transgender becomes irreversible -

It should be obvious that the transgender movement/advocacy a pseudo treatment for the mentally ill

[Joe_dallas]

Sarcastr0
July.20.2022 at 7:50 pm
Flag Comment Mute User
If it worked at all, maybe.

Right now there is little evidence it is more than torture, physical and psychological."

concur - currently there is strong evidence that the transgender movement embraced by the advocates is nothing more that torture to the mentally ill - foisting a false belief that transgender treatment will cure their mental illness when the treatment is nothing more than physical and psychological torture.

[Eric VonSalzen]

Sorry, did I miss the part of the provision that said these things couldn't be done "without the consent of the parents"?

[AmosArch]

ILLEGAL and worthy of censure including an entire genre of horror movies: trying to talk the gay out of someone, not even a consenting adult.

LEGAL and worthy of celebration including an entire genre of uplifting drama movies: the complete opposite ie trying to convince someone they are gay/transgender/whatever and plying them with surgery and sex change drugs. Including and especially children.

[Rev. Arthur L. Kirkland]

Bigotry seems to have become the driving force at this white, male, right-wing blog.

Good luck with persuading modern, educated, accomplished, reasoning Americans to embrace conservative and Republican positions, clingers.

[Cheerio]

The obsession with the demographics of the bloggers here is quite tiresome. Offer evidence of discrimination, or give it up already.

[BravoCharlieDelta]

The Rev. is a bot. A very, very, very incredibly stupid bot.

[The original jack burton]

Soros is not getting much value for his money with AK

[Rev. Arthur L. Kirkland]

My comments are tiresome from your perspective. The bigotry that saturates this blog is tiresome from my perspective. And, I sense, that of readers who are not disaffected right-wing culture war losers.

May the better ideas continues to win in modern, improved America.

[Seamus]

1st

[Seamus]

Don't know how that got there. (Reason, please get an edit feature for comments.)

[DaivdBehar]

Rev. Tell the class what law school you attended. That is an awesome legal analysis.

[Michael Ejercito]

So gender "affirming" pure speech therapy is protected, according to the 11th Circuit's logic.

[AmosArch]

Yes as the article states its expressly permitted so the law as well as many other laws across the country and world are blatant viewpoint dependent prohibitions.

[Cheerio]

We really need a consistent standard for when parents are allowed to make controversial decisions for their children that could have long-term impact on their physical or mental health. The left wants parents to be able to make some very controversial and life-altering decisions for their children (some of which they even want to *force* healthcare providers to provide against their will...), and then they want to turn around and *ban* other practices from even being an option.

Either we let parents make controversial healthcare decisions for their kids, or we don't.

[Josh R]

If 90% of the people oppose a medical practice, is that controversial? How about 10%? Can we ban the former without banning the latter? What if the numbers were 80% and 20% respectively. Or, 55% and 45% respectively?

[BravoCharlieDelta]

The Left wants children to make those decisions and actively try to hide these things from their parents.

[AmosArch]

It depends. If a 12 year old wants to transition and their parents don't its 'STUNNING AND BRAVE'. OTOH if its the parents clearly driving the narrative that a 4 year old 'wants to transition'. Its also 'STUNNING AND BRAVE'

[TwelveInchPianist]

Yup. In some states schools can put kids on antidepressants and other drugs without parent's notification or consent, and according to some sources minors can have unnecessary castration and mastectomies without parental knowledge or consent.

[Sarcastr0]

Some sources! Talk radio opinion writer doing some legal analysis.

Don't turn off your critical thinking skills like that, chief.

[TwelveInchPianist]

Uh, you're saying that his analysis is wrong because he's a talk radio opinion writer, and that I shouldn't turn off my critical thinking skills?

Um, OK.

[Joe_dallas]

BravoCharlieDelta
July.20.2022 at 7:21 pm
Flag Comment Mute User
"The Left wants children to make those decisions and actively try to hide these things from their parents."

the left wants to push a permanent irreversible pseudo treatment upon the mentally ill and hide that mengele style treatment from the parents

[F.D. Wolf]

Under current Leftist dogma, telling a boy who claims he is gay that he is not gay is insidious, dangerous, will lead to suicide, and must be banned.

Conversely, telling a boy who says he is a girl that he is indeed a girl, mutilating his genitals, and prescribing a lifetime of hormone treatments is "affirming" medical care, cannot possibly have any long-term consequences, and must not only never be banned, but must be compelled if the boy requests it.

[Rev. Arthur L. Kirkland]

How do superstition-warped conservative bigots see it?

[Ben_]

We can call it the “Don’t say straight" law.

[Martinned]

Even apart from the ridiculousness of treating speech therapy as speech for 1A purposes, if a ban on conversion therapy doesn't pass strict scrutiny, nothing does. In that case, why even bother with the pretense?

[TwelveInchPianist]

"Even apart from the ridiculousness of treating speech therapy as speech for 1A purposes..."

Why wouldn't it? It's speech.

"if a ban on conversion therapy doesn't pass strict scrutiny, nothing does."

Huh? Even if you buy that there's some sort to compelling state interest here, the ban isn't narrowly tailored to speech shown to be harmful, and has an exception for politically favored transitions.

[Martinned]

Well, it's talking.

an exception for politically favored transitions.

Those are "politically favoured" because they're not harmful. Weird, that.

[Seamus]

Lopping healthy body parts isn't harmful? You learn something new every day.

[TwelveInchPianist]

"Well, it's talking."

Yeah, that's totally different.

[Joe_dallas]

Martinned
July.21.2022 at 8:32 am
Flag Comment Mute User
Well, it's talking.

an exception for politically favored transitions.

"Those are "politically favoured" because they're not harmful.
Weird, that."

Martineed - "not Harmful" ? seriously - did you get that belief from josef mengelee's playbook? or do just seriously believe that its not harmfull

[Krayt]

In the larger picture, claiming speech may be banned because someone waves their hands and declares it medical speech leading to harm is a political trick.

The issue is none of my business. I follow no imagined god who thinks this all so terribly evil. But we can't allow this crack in free speech, as other nations, dictatorships and not, regularly ban "harmful" speech, ending with speech that hurts the government's efforts to service The People, which is, of course, banning speech against the elected officials.

So let these people be assholes. There are bigger problems at stake.

[EscherEnigma]

So to recap...

Stopping doctors from using a specific kind of therapy that has been proven, over and over again, to increase depression, suicide risk, doesn't succeed at what it claims to do, and overall lead to a long litany of truly awful outcomes, is unconstitutional.

A law mandating that doctors lie about abortion access, outcomes from abortion, and in general require that doctors spread state-mandated misinformation, is constitutional.

Well, as Reba said, "don't trust no southern lawyer".

[Ben of Houston]

Except it's overbroad. Strong conversion therapy where you try to force someone to not be gay is little better than an exorcism. However, this can be read at attempting to ban any question of the matter.

Also, according to a very precious ruling to the left, what occurs between a patient and doctor is protected by an extreme right to privacy that overrides all other rights and the government may not interfere in this.

If Roe has any validity, no medical procedures may be banned.