In a big victory for free speech on Friday, the Eleventh Circuit Court of Appeals struck down bans on counseling for LGBT individuals seeking help for unwanted same-sex attraction or gender confusion. The court ruled that such bans violate the First Amendment’s free speech clause, ergo are unconstitutional.
These cases began after the City of Boca Raton, Florida and Palm Beach County, Florida enacted ordinances prohibiting counselors from providing talk therapy with minor clients who wish to reduce or eliminate their unwanted same-sex attraction or unwanted gender identity issues.
Robert Otto and Julie Hamilton are both licensed marriage and family therapists who provide “counseling to minors who have unwanted same-sex attraction or unwanted gender identity issues” along with other services in Boca Raton and Palm Beach. As the court notes in its decision, both counselors provide talk therapy, “therapy conducted solely through speech.”
The two therapists filed a lawsuit, with the help of First Amendment lawyers at Liberty Counsel, arguing that the city and county’s ordinances prohibiting their speech violates their First Amendment rights.
Two Trump-appointed judges, Britt Grant and Barbara Lagoa, formed a 2-1 majority in the decision, with Obama-appointed Judge Beverly Martin in dissent.
Judge Grant authored the court’s opinion.
“We understand and appreciate that the therapy is highly controversial,” Judge Grant wrote.
“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.”
“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,” Judge Grant added.
The judge also noted that under the ordinances, “support and assistance to a person undergoing gender transition is specifically permitted.”
Under the therapy bans, if a minor wished to begin hormone therapy, take puberty blockers that disrupt the natural, biological progression of puberty, or undergo harmful surgeries that mar properly functioning reproductive organs, counseling in favor of these harmful procedures would have been permitted.
However, talk therapy, which takes place without harmful hormones or surgeries, was banned.
Liberty Counsel, which represents Otto and Hamilton, argued against this discrimination based on the viewpoint of the counselor.
“Under the laws that were struck down, a counselor could encourage a client to take life-altering hormone drugs or even undergo invasive surgery to remove healthy body parts, but could not help a client who seeks to overcome unwanted same-sex attractions, behavior, or confusion,” the press release noted.
According to the Eleventh Circuit, laws that pick and choose what speech is acceptable, and what is not, are presumptively unconstitutional.
“Forbidding the government from choosing favored and disfavored messages is at the core of the First Amendment’s free-speech guarantee,” Judge Grant wrote.
“This is a huge victory for counselors and their clients to choose the counsel of their choice free of political censorship from government ideologues,” Liberty Counsel Founder and Chairman Mat Staver said in a statement to The Daily Citizen. “This case is the beginning of the end of similar unconstitutional counseling bans around the country.”
The Eleventh Circuit is now the first one to rule that bans on talk therapy violate the Constitution. Two other courts, the Third Circuit and the Ninth Circuit, have upheld bans on talk therapy within the last decade.
According to the pro-LGBT advocacy group Family Equality, 20 states currently have laws on the books banning talk therapy along with other cities and counties.
Since today’s decision creates a split between the circuit courts, if the Eleventh Circuit’s ruling is appealed to the U.S. Supreme Court, it is increasingly likely the high court will take up the case in order to restore a uniform rule of law nationwide.
The case is Robert W. Otto, Julie H. Hamilton vs. City of Boca Raton, County of Palm Beach.
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