When the U.S. Court of Appeals for the 11th Circuit recently considered so-called “conversion therapy” bans stemming from Palm Beach County, Florida, the court had little hesitation finding that the bans violated the First Amendment. To anyone familiar with what these laws actually say, the court’s conclusion that they were unconstitutional came as no surprise.
Specifics on what constitutes “conversion therapy” are far from clear. “Electroconvulsive shock therapy” is repeatedly fronted as justification for these laws, but without evidence that such methods have been used for this purpose in many decades. And the laws are actually far broader in scope, extending to any efforts, including counseling, that might seek to help a patient change any aspect of sexual behavior or attractions.
The clear problem with this approach is that it inserts the government into the counseling room and seeks to regulate what can and cannot be said. In reality, these are not “conversion therapy” bans, but “counseling censorship laws” that intentionally restrict the right of both patients and counselors to engage in conversations they want to have, and to hear or express ideas they believe to be true. And in restricting speech, the government is actively taking a side on an issue that has multiple, strongly held perspectives and opinions.
While these counseling bans—promoted by activist groups—pass quickly through some legislative chambers as symbols of political correctness, they are running into trouble in courts since the Supreme Court reemphasized important principles of free speech in its famous NIFLA v. Becerra decision in 2018. Late last year, New York City was forced to repeal a counseling censorship law when it was challenged by an Orthodox Jewish psychotherapist with the assistance of civil rights organization Alliance Defending Freedom. The 11th Circuit has now struck down a similar ban for the same central reason: The government has no right to censor conversations between therapists and their patients.
The facts of the 11th Circuit case are revealing. The plaintiffs are licensed marriage and family therapists who have practiced for many years. They make no promises that they can “change” a person’s sexual orientation, but they are willing to support patients, through ordinary conversational therapy, who wish to pursue change in this area so that they can live in accordance with the moral teachings of their faith. But these private and intensely personal client-therapist conversations fall foul of the expansive wording of the Palm Beach bans. This meant that the therapists faced criminal consequences if they continued to provide the support their clients want.
Observing that the therapists’ speech in this context fell squarely within the protections of the First Amendment, the court emphasized that the government rarely has power to restrict expression because it disapproves of its content. The court rejected the assertion that bans were justified on the basis that they safeguarded the physical and psychological well-being of minors. In reviewing extensive documentation submitted by the authorities and third-party intervenors to substantiate that claim, the court came to the stark conclusion that they offered only assertions, not evidence. It further observed that there was a “complete lack” of rigorous recent research on the issue, failing to reveal harm at all.
Acknowledging the position of several professional medical associations which opposed even speech-based therapy, the court said the views of those organizations are irrelevant to the free speech rights of patients and therapists. “Although we have no reason to doubt that these groups are composed of educated men and women acting in good faith,” the court said, “their institutional positions cannot define the boundaries of constitutional rights. They may hit the right mark—but they may also miss it.”
The court went on to remind those who might be upset — perhaps even outraged — by its judgment, that even-handed protection of freedom of speech protects us all. If the government can regulate the content of therapists’ speech in the way the bans proposed, the court noted that it could equally ban therapists from validating a person’s same-sex attractions. “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 court said.
For anyone who believes in the importance of ensuring that the government cannot step in to censor speech that it does not like, this is a ruling to be welcomed.
But while this new opinion is generating a lot of waves, the truth is that the Court of Appeals was not so much breaking new ground as taking up the baton from the U.S. Supreme Court’s decision in NIFLA. There, the Supreme Court expressed clear disapproval of prior circuit court judgments that restricted the free speech rights of professionals. As a result of this new and categorical decision from the 11th Circuit, we can expect to see more and more “conversion therapy bans” — censorship laws, really — falling as they are challenged in court.