Appeals court strikes down Boca Raton’s ban on anti-gay conversion therapy
A federal appeals court struck down Boca Raton’s ban on conversion therapy for gay adolescents struggling to come to terms with their sexuality, calling the ban an infringement on the First Amendment rights of the teens and the counselors who try to treat them.
Licensed family therapists Robert Otto and Judy Hamilton sued the city for the right to talk to their juvenile clients about conversion if the clients had “unwanted” attraction to members of the same gender or “confusion” about their gender identity.
The city’s ordinance prohibited conversion therapy as harmful to the health and emotional development of lesbian, gay, bisexual, transgender and other youth. A district court upheld the law, but Otto and Hamilton appealed, backed by religious-liberty advocates at Liberty Counsel.
A three-judge panel at the Eleventh Circuit Court of Appeals in Atlanta overturned the earlier decision by a 2-1 vote. “We understand and appreciate that the therapy is highly controversial,” wrote Judge Britt Grant. “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.”
Finding that the type of therapy offered by Otto and Hamilton consisted entirely of speech, Grant wrote that government has no role to play in what the counselors can and cannot say.
“The only voices that should matter in the counseling session are the client’s and the counselor’s,” said Mat Staver, founder and chairman of Liberty Counsel. “This case is the beginning of the end of similar unconstitutional counseling bans around the country.”
A similar law passed by the Palm Beach County Commission also was struck down by Friday’s decision.
There are many other communities across South Florida that have passed ordinances, including Miami, Miami Beach, Wilton Manors, West Palm Beach, Lake Worth, Boynton Beach, Delray Beach, Tampa and Key West.
Washington D.C., Puerto Rico, and 20 states have bans on conversion therapy that may be affected by Friday’s ruling, Staver said.
Horatio G. Mihet, Otto’s attorney, embraced the legal victory. “We are glad that the Court has righted this wrong, and remain committed to safeguarding free speech as long and as high up as it takes,” Mihet said.
A Supreme Court showdown is expected.
“Today’s decision is a marked departure from precedent and an incredibly dangerous decision for our youth,” said Kevin Jennings, chief executive officer of Lambda Legal, attorney advocates for gay rights. “So-called ‘conversion therapy’ is nothing less than child abuse.
“It poses documented and proven critical health risks, including depression, shame, decreased self-esteem, social withdrawal, substance abuse, self-harm and suicide. Youth are often subjected to these practices at the insistence of parents who don’t know or don’t believe that the efforts are harmful and doomed to fail.”
Jamie Alan Cole, one of the attorneys representing Boca Raton, said the city is weighing its options.
“This is a difficult legal issue, as evidenced by the split decision,” Cole said. “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.”
Staff writer Lisa J. Huriash contributed to this report.
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