11th Circuit panel rules against county's ban on conversion therapy

Three years ago, Palm Beach County banned conversion therapy, arguing that the practice harmed LGBTQ children. A pair of therapists fought back.

Wayne Washington
Palm Beach Post
Julie Hamilton, one of two plaintiffs who sued the county and Boca Raton over their bans on conversion therapy, speaks at the July 12, 2016, Palm Beach County Commission meeting to oppose a ban on "conversion therapy."

A three-judge panel of the 11th Circuit Court of Appeals has ruled against Palm Beach County's ban on the controversial practice of conversion therapy.

In its 2-1 ruling, the panel determined that the ban violates the free speech rights of therapists who offer minors counseling services they say help them align their attractions, behaviors and gender identities to their religious beliefs. Opponents of such therapy say it harms and stigmatizes gay, lesbian and transgender children.

"People have intense moral, religious, and spiritual views about these matters — on all sides," the judges write in their ruling. "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." 

Three years ago, Palm Beach County became the first county in Florida to ban conversion therapy. Several cities, including Boca Raton, Wellington and West Palm Beach, had already banned it, as did Tampa.

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But the Tampa ban triggered a legal challenge, and Palm Beach County Attorney Denise Nieman warned commissioners not to approve an ordinance banning conversion therapy but to await the outcome of the Tampa case.

Commissioners did not follow that advice, approving their ordinance 5-2 after contentious, emotional hearings on the issue.

A pair of therapists, Robert Otto and Julie Hamilton, sued Boca Raton and the county, arguing that the bans violated their First Amendment rights to free speech.

Their efforts to get an injunction from the district court were unsuccessful, but they appealed to the 11th Circuit, which on Friday ruled in their favor.

"Speech does not need to be popular in order to be allowed," Judge Britt Grant wrote for the majority. "The First Amendment exists precisely so that speakers with unpopular ideas do not have to lobby the government for permission before they speak.”

“This decision allows speech that many find concerning — even dangerous. But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. It comes down to this: if the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere."

Judge Beverly Martin dissented, writing that conversion therapy is "known to be a harmful therapeutic practice."

Martin added: "The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws’ narrow focus on licensed therapists practicing on patients who are minors."

Martin was appointed to the U.S. District Court by former President Bill Clinton and elevated to the 11th Circuit by former President Barack Obama. The two judges who ruled against the ban, Grant and Judge Barbara Lagoa, were appointed to the 11th Circuit by President Donald Trump. 

More:Palm Beach County takes step to ban conversion therapy for gay minors

Otto and Hamilton were represented by Liberty Counsel, an Orlando-based non-profit organization that describes its mission as protecting human life and religious freedom. The Southern Poverty Law Center says Liberty Counsel backs LGBTQ bigotry under the guise of religious freedom. 

Liberty Counsel's chairman and founder, Mat Staver, hailed Friday's ruling as a "a huge victory for counselors and their clients to choose the counsel of their choice free of political censorship from government ideologues. This case is the beginning of the end of similar unconstitutional counseling bans around the country.”

It's unclear what the ruling means for the county and for cities that had passed ordinances banning conversion therapy.

"This is a difficult legal issue, as evidenced by the split decision," said Jamie Alan Cole, an attorney who represented Boca Raton in the case. "The city is disappointed with the majority decision, but agrees with the well-written and well-reasoned dissent. The city is analyzing the decision to determine how to proceed."

More:Historic LGBTQ bar paid salaries over insurance. Then it caught fire.

Nieman shared news of the decision with commissioners, telling them the county could accept the ruling and end the case or ask for a rehearing before the full circuit.

"In considering these options, we are aware that the same attorneys who litigated (against the county) also litigated a similar case in Tampa in which they were successful, and for which they are seeking over $525,000 in trial level attorney’s fees," Nieman told commissioners. "In our case, additional appellate fees would also be recoverable on the claims raised."

Even a victory before the full 11th Circuit Court would not end the case, Nieman predicted.

"Our opponents would likely appeal the decision to the U.S. Supreme Court, where a favorable result would be uncertain," she said.

Rand Hoch, president and founder of the Palm Beach County Human Rights Council, a non-profit group set up to fight discrimination based on sexual orientation, gender identity and expression, said going to the Supreme Court might not be the smartest move.

Some 20 states have laws banning conversion therapy, Hoch said, and a Supreme Court ruling could eliminate those bans.

He said he had some hope the 11th Circuit would consider research showing that conversion therapy is harmful to LGBTQ children.

"Now, these therapists have carte blanche to see kids week after week to tell them they are unloved," he said. "That is abuse."