Not so long ago, a consensus seemed to be emerging that the Constitution does not prohibit states from banning “conversion therapy” for gay and transgender minors. The U.S. Court of Appeals for the 3rd and 9th Circuits rejected First Amendment challenges to conversion therapy bans in New Jersey and California. The Supreme Court declined to hear both cases and no justices noted their concern with the rulings below. Fifteen states and the District of Columbia outlawed conversion therapy for minors, as did 50 cities and counties. Both Democratic and Republican governors signed bills forbidding the practice, which is essentially torture. There is widespread agreement among First Amendment scholars that these laws do not unlawfully infringe upon free speech.
The Supreme Court, however, unexpectedly fractured this consensus through its decision in 2018’s NIFLA v. Becerra. In an opinion invalidating disclosure requirements for California’s “crisis pregnancy centers,” Justice Clarence Thomas threw in a gratuitous passage that seemed designed to cast doubt on the constitutionality of conversion therapy bans. And on Wednesday, a federal magistrate judge seized on this language to recommend striking down Tampa, Florida’s ban on LGBTQ conversion therapy for minors. The seeds that Thomas planted last year have begun to sprout. And they are imperiling laws designed to protect the lives of some of America’s most vulnerable youth.
It is easy to understand why so many jurisdictions have barred medical practitioners from attempting to change minors’ sexual orientation or gender identity. The “treatment” is brutal and futile, sheer torment for children that contributes to depression and suicide. It does not work and is opposed by the American Medical Association, the American Psychiatric Association, the American Academy of Pediatrics, and every other mainstream medical organization in the United States. In New Jersey, a jury found one conversion therapy group guilty of consumer fraud after its victims revealed its techniques in graphic detail. Among other horrific activities, therapists forced children to take off their clothes and touch their genitals as counselors watched; engage in “group cuddling sessions”; beat effigies of their parents with a tennis racquet; and push through a human chain to grab two oranges, meant to represent testicles, while other “clients” shout gay slurs at them.
In light of the universal agreement among respected medical professionals that conversion therapy is both ineffectual and cruel, the 3rd and 9th Circuits did not hesitate to uphold laws that barred licensed therapists from inflicting it on children. Although each court’s rationale differed, both agreed that the government had broader leeway to regulate speech in the context of medical treatment. They noted that parents, churches, and religious counselors can still attempt to change LGBTQ minors’ sexual orientation or gender identity. The bans only apply to licensed therapists. And within the context of professional regulation, the government may prevent practitioners from offering “therapy” that is fruitless and even harmful.
Then came NIFLA. In that case, evangelical activists challenged a California law that compelled “crisis pregnancy centers” to disclose certain facts to patients. Unlicensed CPCs had to inform patients that they lacked a medical license; licensed CPCs had to provide information about low-cost reproductive services, including abortion care, offered by the state. In a 5–4 decision, the court struck down both requirements as a free speech violation. Writing for the majority, Thomas rejected the notion that “professional speech” generally receives less protection under the First Amendment. He asserted that governments have, throughout history, “manipulat[ed] the content of doctor-patient discourse” to “increase state power and suppress minorities.” Professional regulations that target the content of expression, Thomas concluded, must be subject to strict scrutiny—that is, they will be struck down unless they’re “narrowly tailored to serve compelling state interests.”
As examples of lower court rulings that fail to apply this principle, Thomas cited the 3rd and 9th Circuit decisions upholding LGBTQ conversion therapy bans for minors. As ThinkProgress’ Zack Ford pointed out at the time, the justice appeared to be laying the groundwork to overturn these laws by wiping out the legal basis for their constitutionality. And on Wednesday, federal magistrate Judge Amanda Arnold Sansone took up Thomas’ call to arms. In a sweeping opinion, Sansone recommended that William F. Jung, the presiding judge in the case, block the Tampa ban’s application on “non-coercive, non-aversive” LGBTQ conversion “talk therapy” for minors. (Jung, a Donald Trump appointee, is not obligated to adopt Sansone’s recommendations, but will take them into serious consideration.)
Sansone’s opinion attacks the Tampa law from every angle, repeatedly citing NIFLA. She argues that the ban suppresses speech on the basis of content and viewpoint, triggering strict scrutiny. And she claims it is unconstitutionally vague and overbroad, as well as an unlawful prior restraint on free speech. Never mind that Tampa therapists may engage in all the conversion therapy they like so long as they do so outside the confines of their licensed medical practice. Or that conversion “talk therapy” is extremely dangerous for young people, even when it does not involve physical abuse. Tampa, Sansone suggested, can only outlaw “involuntary” conversion therapy and “aversive” techniques “like electroshock therapy.” Under NIFLA, a total ban is constitutionally impermissible.
This reasoning makes little sense. As a group of First Amendment scholars argued in a brief defending the constitutionality of such bans, these laws should not be understood as a suppression of speech in the first place. Therapists remain free to discuss conversion therapy with patients and to advocate for it independently. The government targets only a kind of medical practice which—on the basis of mountain of evidence—it believes to be malpractice.
Everyone agrees that the government can prohibit malpractice. And just as doctors can be forbidden from “treating” a broken bone by reciting the Lord’s Prayer, they can be barred from “treating” LGBTQ identity by engaging in discredited coercion. As the First Amendment scholars write: “The First Amendment protects a doctor’s right to extol the virtues of snake oil in public discourse, but not to tell a patient to use it.”
But after NIFLA, judges skeptical of conversion therapy bans are armed with Supreme Court precedent they can use to knock down these laws. Justice Anthony Kennedy might have recognized the frailty of Sansone’s logic—but he has retired, and five hard-line conservatives now stand ready to use the First Amendment to halt social progress. Now, as lawmakers around the country recognize the horrors of conversion therapy, the courts stand poised to prevent states and cities from banning the practice. The lives of LGBTQ youth may soon be sacrificed in the name of free speech.