Federal judge upholds PBC conversion therapy bans

Jane Musgrave
U.S. District Judge Robin Rosenberg. This photo was taken in 2012 when she was a Palm Beach County Circuit judge. She has since been elevated to the federal bench. [LANNIS WATERS/]

WEST PALM BEACH — Two Palm Beach County therapists have failed in their efforts to stop the enforcement of laws that prohibit them from offering so-called conversion therapy to teens who are struggling with their sexual orientation or gender identity.

In a decision that was hailed as a victory for the LGBTQ community and blasted as an assault on First Amendment rights, U.S. District Judge Robin Rosenberg ruled that the Palm Beach County Commission and Boca Raton City Council had good reason to ban conversion therapy, which has been linked to depression, social isolation and suicidal thoughts among young people.

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In a 60-page opinion released late Wednesday, Rosenberg said city and county lawmakers “relied upon extensive credible evidence of the damage that conversion therapy inflicts.” The evidence, she noted, “comes from well-known research organizations and subject matter experts.”

Noting that this is the first step in what will likely be a long legal battle, Rosenberg said Boca Raton therapist Robert Otto and Palm Beach Gardens counselor Julie Hamilton may ultimately prove that the laws are an unconstitutional infringement on their First Amendment rights.

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But, she said, the limited impact the laws have on their free speech rights wasn’t enough to grant their request for a preliminary injunction blocking Boca Raton and the county from enforcing the laws that also exist in at least seven other cities in the county and scores of others across the nation.

Otto and Hamilton can continue to talk publicly about the pros and cons of the therapy that is also known as sexual orientation change efforts, Rosenberg said. The law only blocks their ability to offer the therapy to young clients.

Liberty Counsel attorney Mathew Staver, who represents the two therapists, said Rosenberg’s ruling is fatally flawed. The founder of the non-profit law firm that is dedicated to protecting Christian values said he appealed Rosenberg’s decision to the 11th Circuit Court of Appeals less than an hour after he read it.

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“I think she’s flat-out wrong, with all due respect to the court,” he said.

In her opinion, Rosenberg relied on decisions made by federal appeals courts that upheld conversion therapy bans in New Jersey and California. In their rulings, both the Ninth and Third circuit courts ruled that the laws didn’t violate therapists’ First Amendment rights because the restrictions only affected their “professional speech.”

However, Staver said, the notion of professional speech has been rejected by the U.S. Supreme Court and the Atlanta-based 11th Circuit, which oversees federal courts in Florida. Deep in her opinion, Rosenberg acknowledged as much.

“It is incredible that the court side-stepped the prevailing precedent of the 11th Circuit Court of Appeals and the U.S. Supreme Court,” Staver said.

He predicted Rosenberg’s decision would be quickly overturned.

Attorney Rand Hoch, who urged the county commission, Boca and other cities throughout the state to ban conversion therapy, lauded Rosenberg’s decision. Not only is it legally sound, but it is morally right, said Hoch, founder and president of the Palm Beach County Human Rights Council.

“The good thing here in Palm Beach County, the kids are protected and they will continue to be protected,” Hoch said.

Like Staver, he agreed the legally complex issue will likely be decided by the U.S. Supreme Court.

Already, Staver said he has asked the nation’s highest court to consider whether New Jersey’s conversion therapy ban passes constitutional muster. While the court has refused to hear conversion therapy cases before, the growing number of state and local ordinances and the disagreement about professional speech could spur the court to intervene, he said.

Rosenberg was well aware of the raging legal controversy surrounding conversion therapy bans, Hoch said. That’s why her ruling is so long and detailed, he said. “She wanted to make sure she thoroughly analyzed all of the evidence,” Hoch said. “She knows her decision is not going to be the end of it.”