A federal appeals court blocked bans on LGBTQ “conversion therapy” for minors on Friday, finding that two Florida cities violate the First Amendment with laws that seek to protect children from the harmful and discredited practice. Both judges in the majority are Federalist Society members appointed by President Donald Trump. Their decision rejects the mountain of evidence that “conversion therapy” substantially increases young people’s risk of depression and suicide. Indeed, the majority explicitly found that the government lacks a compelling interest in protecting minors from the practice, dismissing the consensus among mainstream medical groups that “conversion therapy” is dangerous and ineffective.
Friday’s decision by the 11th U.S. Circuit Court of Appeals involves nearly identical laws passed by Boca Raton and Palm Beach County. Both measures prohibit licensed counselors from attempting to change a minor’s sexual orientation or gender identity. They do not apply to adult patients or unlicensed counselors, such as faith leaders or parents. Two licensed therapists challenged the laws, alleging that they violated their free speech rights. They argued that the First Amendment protects their ability to “convert” LGBTQ children without fear of losing their license.
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Two other federal appeals courts have rejected such arguments, finding no constitutional flaw in these laws. And today, “conversion therapy” bans are widespread: 20 states, the District of Columbia, Puerto Rico, and at least 83 municipalities have forbidden the practice for minors. By a 2–1 vote, however, the 11th Circuit declared that Boca Raton and Palm Beach County’s bans—and, by extension, all the rest—are unconstitutional. The two judges in the majority were Britt Grant and Barbara Lagoa.* Grant, who authored the opinion, found that the bans restrict speech on the basis of content and viewpoint, triggering strict scrutiny. Thus, the laws must be “narrowly tailored to serve a compelling interest.”
Grant then announced that shielding LGBTQ minors from “conversion therapy” is not a compelling interest under the First Amendment. Boca Raton, Palm Beach County, and multiple advocacy groups provided the court with studies documenting the harm that “conversion therapy” inflicts on children. Grant rejected this evidence as speculative. “When examined closely,” she wrote, “these documents offer assertions rather than evidence,” citing a “lack of empirical studies.” Grant concluded that America’s medical associations were really trying to impose their own pro-LGBTQ views on counselors, writing that “professional societies’ opposition to speech” cannot justify “censorship” of anti-LGBTQ therapists.
As Judge Beverly Martin, a Barack Obama appointee, noted in her dissent, Grant’s position creates a perverse quandary for the government. There are not more empirical studies of “conversion therapy” on minors because the American Psychological Association has found that such studies are “not ethically permissible.” As the APA explained, “to do such research with vulnerable minors who cannot themselves provide legal consent would be out of the question for institutional review boards to approve.” So, according to the majority, “conversion therapy” bans might be constitutional if they are supported by research that will never be conducted because it would hurt children. Until then, the government can do nothing to spare minors from this practice. As Martin put it, “one implication of the majority holding is that because [conversion therapy] is too dangerous to study, children can continue to be subjected to it.”
Martin also pointed out that, by denying the odious effects of “conversion therapy” on children, the majority ignored copious evidence that the practice is, indeed, terribly destructive. She listed the many “institutions of science, research, and practice” that have found conversion therapy “to pose real risks of harm on children.” These organizations include the APA, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association Council of Representatives, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, the American School Counselor Association, the U.S. Department of Health and Human Services, and the World Health Organization.
“When it comes to regulation of allegedly harmful medical practices,” Martin wrote, “the judgment of professional organizations strikes me as quite relevant.” But Grant disagreed, accusing these groups of ideological hostility to “conversion therapy” and insisting that their true goal is to suppress disfavored speech. According to the majority, this universal opposition among medical professionals simply reflects “majority preferences” and “cultural attitudes” that cannot justify “silencing speech.”
There are so many offensive and befuddling aspects of Grant’s opinion that it’s hard to know where to begin. She shrugged off the fact that these laws are designed to regulate the medical profession through licensure rules, asserting that the First Amendment limits the government’s authority to restrict quackery if it is conveyed through speech. “What the governments call a ‘medical procedure’ consists—entirely—of words,” Grant wrote. By flattening the distinction between conduct and speech, her opinion raises a host of questions: Can the government regulate any speech uttered by medical professionals in the course of their work? Could it revoke the license of a doctor who gave wildly irresponsible advice to a patient? Could it punish a surgeon who botches an operation and then falsely tells the patient the surgery was successful? Or an oncologist who tells a breast cancer patient to forgo chemotherapy for forsythia? How about an emergency room doctor who advises gunshot victims not to seek care because they might bolster the case for gun control? In each scenario, the doctor’s misconduct “consists—entirely—of words.” When is the harm severe enough to justify what most people call “regulation” but Grant derides as “censorship”?
These hypotheticals might sound absurd. But in reality, there is no more uncertainty over the effects of “conversion therapy” than there is over the consequences of other brazen fraud. Gay and bisexual people who undergo this “treatment” are twice as likely to attempt suicide. Transgender people who are exposed to it also experience severe psychological distress and a higher suicide risk. All of the research points in one direction: “Conversion therapy” does not achieve its goals, but it does kill its victims, and youth are especially vulnerable. It is a lethal fraud. By refusing to acknowledge the compelling interest behind these bans, Grant and Lagoa denied the dignity and worth of LGBTQ people.
Friday’s ruling effectively nullifies 21 other “conversion therapy” bans passed by cities and counties in Florida. It also heightens the odds that the Supreme Court will soon determine the fate of every “conversion therapy” ban, since it creates a split among federal appeals courts. There is good reason to believe the court will side with Grant. After all, SCOTUS’ conservative justices have already made it clear that they do not think the government can regulate medical professionals’ speech—with one major exception: The court has consistently permitted states to abridge the free speech of abortion providers, forcing them to recite government-scripted, unscientific propaganda designed to persuade patients out of terminating a pregnancy.
Free speech for anti-LGBTQ “conversion therapists,” but not for abortion providers—that’s what the law under Trump judges looks like. The ascendant jurisprudence does not only discount constitutional protections for LGBTQ people; it prohibits citizens from protecting LGBTQ people through the democratic process. Trump will leave office soon enough, but the dead hand of his malicious administration will continue to rule the country through judges like Grant and Lagoa.
Correction, Nov. 20, 2020: This article originally misidentified the author of the opinion. It was Britt Grant, not Lisa Branch.
