The state of Florida doesn’t ban conversion therapy statewide, but the city of Boca Raton and Palm Beach County passed ordinances in 2017 that banned licensed professionals from treating minors with “any counseling, practice or treatment performed with the goal of changing an individual’s sexual orientation or gender identity.
Two anti-LGBT conversion therapists sued, arguing that the therapy they provided is voluntary, offered to clients who wish to reduce their attraction to individuals of the same sex or to reduce feelings of being the wrong gender. They claimed that the therapy they were providing consisted entirely of speech, and is therefore protected by the First Amendment.
Despite the fact that the American Psychological Association has found that sexual orientation change efforts have not been shown to be effective or safe in a 47-page decision for Otto v. City of Boca Raton, a circuit panel of the U.S. Court of Appeals for the 11th Circuit ruled, 2-1, (the 2 votes to overturn Judge Barbara Lagoa and Judge Britt Grant are both Republicans and Donald Trump appointees) that this conversion therapy is, indeed, protected speech under the First Amendment.
This decision allows speech that many find concerning—even dangerous. But consider the alternative. 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. It comes down to this: if the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere. People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). The challenged ordinances violate that principle, and the district court should have enjoined their enforcement. We therefore REVERSE the district court’s order and REMAND for entry of a preliminary injunction consistent with this opinion”
The ruling has now created a circuit court split. In 2013, the U.S. Court of Appeals for the 9th Circuit ruled that California’s law banning conversion therapy for minors did not violate the First Amendment. Because of this the debate over whether conversion therapy is a form of protected speech may ultimately end up before the now conservative heavy Supreme Court.
The lawsuit for Robert Otto and Julie Hamilton against Boca Raton was brought forth bt the anti-LGBT hate group The Liberty Counsel.