Federal judge says harmful conversion therapy is just ‘speech’ and shouldn’t be restricted – By Zack Ford (Thinkprogress) / Jan 31 2019
It’s the first shot across the bow against bans on the shame-based treatment.
A federal magistrate judge in Florida recommended Wednesday that Tampa’s ban on anti-LGBTQ conversion therapy for minors be halted, which would enable practitioners of the treatment to continue trying to shame kids out of their same-sex orientations.
The anti-LGBTQ hate group Liberty Counsel brought the complaint on behalf of two therapists and a Christian ministry that provide counseling to help “reduce or eliminate same-sex sexual attractions, behaviors or identity.” They argued that because all they provide is talk therapy, their sexual orientation change efforts (SOCE) constitute “speech” protected under the First Amendment that cannot be restricted by law. U.S. Magistrate judge Amanda Arnold Sansone agreed, recommending a preliminary injunction.
Sansone concluded that the city could have more narrowly tailored the ban to only restrict “involuntary” counseling, only ban “aversive” treatments like electroshock therapy, or require informed consent. She also agreed that Tampa was engaging in viewpoint discrimination and idea suppression because it “disagreed with the ideas expressed” in conversion therapy.
“The plaintiffs sufficiently demonstrated Ordinance 2017-47’s overbroad prohibition on non-coercive, non-aversive SOCE counseling consisting entirely of speech or ‘talk therapy’ is likely unconstitutional,” she wrote.
The problem with this ruling is that it completely ignores everything major medical organizations have said about conversion therapy. When the American Psychological Association issued its massive report on SOCE in 2009, it didn’t say that some SOCE is harmful and some isn’t. It said that any effort to try to help patients reject or change their sexual orientation risked harm.
Specifically addressing SOCE for minors, the report noted, “SOCE that focus on negative representations of homosexuality and lack a theoretical or evidence base provide no documented benefits and can pose harm through increasing sexual stigma and providing inaccurate information.” It instead recommended affirming treatments that work with families to help them accept their children for who they are and work to address how that sexual orientation intersects with their beliefs and values.
Likewise, even if a minor is given the option to consent, that doesn’t mean they aren’t being coerced into the treatment by their families. One of the primary reasons LGBTQ young people are vastly overrepresented among homeless youth is because they face rejection by their families, which can often take the form of ultimatums to pursue some form of conversion therapy.
Sansone’s ruling also cites the U.S. Supreme Court’s ruling last year in NIFLA v. Becerra, which protected so-called crisis pregnancy center’s ability to lie to women and gender minorities to try to convince them not to get abortions. Justice Clarence Thomas referenced previous appellate court rulings upholding conversion therapy bans (including one brought by one of the same therapists challenging Tampa’s) and suggested they were wrongly decided. “[T]his Court has not recognized ‘professional speech’ as a separate category of speech,” he wrote. “Speech is not unprotected merely because it is uttered by ‘professionals.’”
As ACLU attorney Joshua Block pointed out, First Amendment scholars have taken a very different position. In an amicus brief in one of those previous conversion therapy ban challenges, they explained that it’s one thing to express an opinion that SOCE works and quite another to subject a client to it. “The First Amendment protects a doctor’s right to extol the virtues of snake oil in public discourse, but not to tell a patient to use it,” they wrote, noting that courts could also impose liability for medical malpractice for offering SOCE.
Liberty Counsel, however, celebrated the decision. “This well-reasoned opinion underscores the serious First Amendment violations of laws that dictate what a counselor and client may discuss in the privacy of their counseling session,” said Mat Staver, the group’s chairman, in a statement. “The government has no business eavesdropping inside the counseling session between a counselor and client.”
The Alliance for Therapeutic Choice and Scientific Integrity, a professional network of conversion therapists (previously known as NARTH), also sent out an email celebrating “victory” in the case. “We express our gratitude and solicit your continued assistance as we continue our efforts to overturn the unconstitutional therapy bans that have already been passed and seek to prevent new therapy bans now being promoted in more than ten different states,” they wrote, soliciting donations.
Though previous challenges to these bans have failed, the NIFLA ruling has prompted several other new cases. In just the past month, Liberty Counsel filed a new suit challenging Maryland’s ban, and the Alliance Defending Freedom (ADF) joined the cause with a lawsuit challenging New York City’s.
Sansone’s recommendation does not immediately enjoin the Tampa’s ban, but the case now proceeds to a federal district judge for final consideration.
