'Conversion therapy' will continue after court rules against Palm Beach County, Boca Raton

A federal ruling last week is allowing "conversion therapy" to continue in Palm Beach County and Boca Raton.

Palm Beach County and the city of Boca Raton tried to reverse a decision preventing them from banning the controversial practice by some therapists of providing counseling aimed at changing the sexual orientation or gender identity of minors.

The 11th U.S. Circuit Court of Appeals denied a request for a rehearing of preliminary injunctions entered against the county and the city in November 2020 by a three-judge panel that prevented them from enforcing the bans. The city and county were seeking a review by the entire Atlanta-based court.

Palm Beach County and Boca Raton passed ordinances in late 2017. They apply only to minors. Other cities, including West Palm Beach, Lake Worth Beach and Delray Beach have similar ordinances. They remain in effect, at least for now.

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“If they don’t repeal those right away … they will become targets in a lawsuit which they won’t win because, this is binding precedent on three states – Florida, Georgia and Alabama,” said Mathew Staver, chairman and co-founder of Liberty Counsel. It’s a Christian ministry and law practice that sued Boca Raton and the county.

“They would end up having to pay attorneys’ fees and costs because they are bound by this decision," Staver said.

How conversion therapy ended up in the court system

Conversion therapy is the practice of attempting to change a person’s sexual orientation or identity to conform to heterosexual norms. It can entail counseling or “talk therapy,” psychoanalysis and spiritual intervention. It has been widely denounced by medical groups and its practice on minors is barred in 20 states, as well as many cities and counties.

Marriage and family therapists Julie Hamilton, in Palm Beach Gardens, and Robert Otto, in Boca Raton, challenged the Palm Beach County and Boca Raton ordinances. Liberty Counsel, which has engaged in anti-LGBTQ rights and anti-abortion rights litigation, sued on their behalf in federal court. They lost, then appealed.

The appellate court’s recent ruling didn’t reveal how all the judges voted. But Judge Britt Grant, in a concurring opinion joined by two other judges, wrote that the ordinances violated the First Amendment, which “applies even to – especially to – speech that is widely unpopular. Make no mistake: These regulations are content-based restrictions of speech, not conduct.”

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Judge Robin Rosenbaum, joined by one other judge, wrote a 77-page dissent. She cited annual surveys of LGBTQ youth from 2019 to 2021 that showed those who were subjected to sexual orientation change efforts reported more than twice the rate of attempting suicide the previous year as those who were not.

“Contrary to the panel opinion, the government’s ability to regulate licensed substandard health care providers does not change because the vehicle for administering the treatment technique happens to be words,” she wrote. “(The) government’s interest in protecting the lives or those already walking this earth – especially children – is perhaps the preeminent compelling government interest.”

Rosenbaum added, “A single young person who tries to kill themselves is one too many; it cannot be the case that thousands of kids must be sacrificed in the name of the First Amendment.”

Grant contended that Rosenbaum’s dissent creates an unconstitutional free speech exception for licensed professionals regarding life-threatening treatment techniques. “It privileges the current views of certain professional organizations,” she wrote. “As a ‘category,’ this misses the constitutional mark by a mile.”

Rosenbaum countered, “The sole purpose of administering a health care treatment technique – whether with a scalpel, drugs, or words – is to improve the client’s health, not to engage in ‘social, political, and religious debates.’ And it is antithetical to that purpose for licensed professionals to engage in a practice on their young clients that has repeatedly been shown to be associated with more than doubling the risk of death.”