The Uncertain Future of "Conversion Therapy"
by Riley Martinez ‘23
On November 20th, 2020, the 11th U.S. Circuit Court of Appeals debated the constitutionality of conducting “conversion therapy” for minors in the case Otto v. City of Boca Raton (2020), a case regarding the constitutionality of certain Florida laws which prohibit licensed professional counselors from attempting to change a minor’s sexual orientation or gender identity—laws with the objective to avoid possible psychological harm to youth. Plaintiffs Otto and Hamilton brought Palm Beach County, Florida, and the city of Boca Raton to the U.S. Court of Appeals after previously losing their case in the United States District Court for the Southern District of Florida. The case was oriented around questions regarding the First Amendment since guarantees of free speech are applicable on a state and municipal level following Cruz v. Ferre (1985). The ordinances were defined as content-based regulations of speech, largely due to the professional nature that “conversion therapy” entails, and thus were required to satisfy the requirements of strict scrutiny in order to not impede upon freedom of speech. Strict scrutiny is the highest level of judicial review in which the burden is on the government to prove that the regulation satisfies a constitutionally compelling state interest and that the specific regulation is sufficiently targeted at said interest.
In a 2-1 vote, the majority sided with the plaintiffs and struck down the restrictions imposed by Boca Raton and Palm Beach county that prohibited therapists from conducting counseling or therapy with a “goal of changing a minor’s sexual orientation, reducing a minor’s sexual attraction… or changing minor’s gender identity or expression” because of violations surrounding the First Amendment. Simply put, the judges ruled that the ordinances did not narrowly address any compelling interests, overlooking the interest of protecting minors from psychological damage from such “conversion therapy”. The majority found the case to be a difference of opinion rather than a valid health reason that would allow the government to intervene in what they consider as religious expression. The judges in the majority chose to undermind the implications of potential harm created by “conversion therapy” and instead make multiple indirect arguments attacking the expansive precedent it could set, such as by stating on page 27 that:
“If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful. And the same goes for gender transition—counseling supporting a client’s gender identification could be banned.”
Judge Lagoa and Judge Grant were the two in the majority, both of which are a part of a long line of Trump appointed federal judges and the latter being approved by a narrow 52-46-2 vote in the U.S. Senate.
The opinion of the dissent, given by Judge Martin, centers on findings by the American Psychological Association which critique “conversion therapy” as psychologically damaging to minors as well as ineffective. Still, the majority determined that the evidence of the harmful effects of “conversion therapy” were not sufficient enough for the government to intervene on the matter with a ban created by the law. Judge Martin writes on page 37 of the ruling that:
“Despite these findings about the harm caused by SOCE, the majority opinion relies instead on a single statement in the Task Force Report that ‘rigorous recent prospective research’ on SOCE has not been done... But what studies have been done “show that enduring change to an individual’s sexual orientation is uncommon,’ and that there is, in fact, already ‘evidence to indicate that individuals experience harm from SOCE.’”
Perhaps most compelling, “conversion therapy” and increased rates of suicide are largely associated with one another according to the aforementioned critiques. The APA, who filed an amicus curiae brief for the case, has since commented on their distaste for the 11th Circuit ruling along with other psychological and protection agencies. Not only do these organizations and associations find the ruling to be misguided, but the piercing language supplied by many seem to indicate a greater disgust for the ruling.
As of January 4th, 2021, 20 states in total hold laws that ban “conversion therapy” for minors. In the most recent, Virginia, arguments for the ban aligned with the dissent present in this 11th Circuit case, indicating that their objective is to avoid placing an inherent fault in minors for identifying with the LGBTQ+ community instead of protecting their well-being. Although bans are not active in the majority of the U.S. states, they have only become more popular and have seen an increase in popularity following recent years; this is a trend found in multiple LGBTQ+ issues following the landmark case Obergefell v. Hodges (2015) which federally legalized same sex marriage and brought sexual orientation and gender identity issues into the national spotlight.
However, this recent ruling calls into question the constitutionality of the current bans, due to the circuit split that now exists within the federal Court of Appeals. The 3rd Circuit and 9th Circuit have heard similar cases, siding with the governments and their justifications for the bans. These U.S. Court of Appeals Circuits, in opposition to the 11th Circuit, agreed that this so-called “speech” which provides an institutional avenue to potentially harm and threaten youth under the guise of professional “therapy” is not justified under the First Amendment. Thus, SCOTUS is now far more likely to hear the case in order to resolve the current contradiction in previous rulings.
LGBTQ+ activists and protective organizations, such as the Trevor Project, are concerned with this case potentially reaching the nation’s highest court. As the court currently stands, there is a strong 6-3 conservative majority. The recent appointment of Justice Amy Coney Barrett, a staunch originalist and religious defender, forewarns an unfavorable court ruling to those seeking to protect LGBTQ+ youth. If SCOTUS follows the decisions made by the 11th Circuit this November, states would be forced to remove their bans; a new level of creativity would be required if they still wish to protect LGBTQ+ youth from processes with similar goals as “conversion therapy”. Additionally, a SCOTUS ruling would undoubtedly result in a highly publicized case. Thus, public reactions, if rooted in dissent to SCOTUS, could cause visible protests in the streets in attempts to voice their own opinions on a more human level rather than necessarily a legal one.
In summary, the only thing certain about the future of “conversion therapy” is that a large identity-based grouped will fervently disagree with whatever the outcome is. Although there has since been push back by the city of Boca Raton and Palm Beach County surrounding the decision, arguing that the 11th circuit overstepped their authority in the appeal, these efforts have yet to see fruitful change. The ruling on November 20th, 2020 will undoubtedly have real impacts on the future of LGBTQ+ youth treatment and thus real youths. It is necessary for both sides to refine their arguments as they prepare for a potential SCOTUS battle which could create a long-lasting, and potentially dangerous, precedent.