//  11/25/20  //  In-Depth Analysis

On Friday, the Eleventh Circuit struck down bans on anti-LGBTQ “conversion therapy” in a disturbing opinion holding that two Florida laws banning conversion therapy for children violate the First Amendment. “Conversion therapy” is a discredited, dangerous practice that tries to force queer and trans youth to become straight or cisgender — usually by subjecting LGBTQ youth to anti-queer propaganda and sometimes physical harm. Twenty states already bar therapists from subjecting children to anti-queer conversion therapy, which dramatically increases young people’s risk of suicide and depression. But on Friday, in an unprecedented opinion, two Trump-appointed judges announced these laws violated therapists’ speech rights.

As Mark Joseph Stern pointed out at Slate, the two city laws at issue in Otto v. Boca Raton were narrowly tailored. The laws applied only to state-licensed counselors, and it prohibited only inflicting conversion therapy on minors. Neither law applied to adults, unlicensed counselors, or the religious leaders who conduct the majority of conversion therapy. Despite these limitations, two licensed therapists challenged the laws under the First Amendment, arguing the law abridged their free speech rights to “cure” LGBTQ children. Eleventh Circuit judges Grant and Lagoa agreed, first holding (wrongly) that strict scrutiny applied — then holding (wrongly) that the government had no compelling state interest in ending a form of child abuse that is killing queer and trans children. Trump was reportedly considering Lagoa to replace Justice Ginsburg. Grant, a former Kavanaugh clerk, was confirmed to the Eleventh Circuit two years ago at the age of 40. Judge Martin, the third member of the panel, dissented.

First, Judges Grant and Lagoa held that bans on conversion therapy regulate speech, rather than conduct. These aren’t obvious conclusions: the Ninth Circuit held that bans on conversion therapy regulate conduct, rather than speech. Lots of prohibited acts involve some regulation of speech — like, say, verbal sexual harassment or a “only White people may apply” line in a rental ad — and the fact that they involve speech doesn’t mean the government can’t regulate them. As the Ninth Circuit held, bans on conversion therapy, just like any state law that bans doctors from using medical marijuana or LSD, fall well within states’ typical regulation of conduct subject only to rational basis review.

The majority then held that the bans regulated neither commercial nor professional speech. Not all regulations of speech are subject to strict scrutiny. Under the Supreme Court’s Central Hudson decision and its progeny, regulations of “commercial” speech (like consumer protection laws requiring tobacco companies to disclose health risks on cigarette packages) are subject to lesser scrutiny. Similarly, several circuit courts of appeal have long held that state regulations of “professional” speech (such as laws that sanction lawyers for sharing clients’ confidential information) are subject to intermediate scrutiny. As the Third Circuit explained when upholding bans on conversion therapy in 2014, bans on conversion therapy regulate professional speech — they regulate the practices that state-licensed psychologists’ can use in the course of their profession.

But in 2018, in NIFLA v. Becerra, the Supreme Court’s five conservatives struck down a California law regulating crisis pregnancy centers, anti-choice centers which pose as abortion clinics to deter patients from seeking abortions, often by misleading them. In the process, Justice Thomas’ majority opinion cast serious doubt on the future of the professional speech doctrine, saying that state regulations of licensed professionals were not necessarily subject to lower scrutiny than other speech — although SCOTUS didn’t reject the professional speech doctrine entirely.

Relying on this language in NIFLA, the Eleventh Circuit held that strict scrutiny applied to the case, writing that “[w]hat the [cities defending their laws] call a ‘medical procedure’ consists—entirely—of words.” Thus, the panel held, bans on conversion therapy, are subject to strict scrutiny. This result seems nonsensical — bans on conversion therapy regulate what state-licensed professionals can do in practicing their profession. Under the Eleventh Circuit’s rationale, all state regulations of therapy would regulate speech, jeopardizing the state’s ability to regulate therapists at all.

But now that Donald Trump has appointed more than a quarter of federal judges, more courts may soon take Justice Thomas up on his invitation to roll back the professional speech doctrine. If that happens, we may see a whole host of consumer protection laws challenged under the emerging deregulatory First Amendment. After all, laws barring doctors from giving quack medical advice to treat cancer or the coronavirus just regulate “words” too.

Reading this dry opinion about abrogating the professional speech doctrine, you would have no sense that queer kids subjected to conversion therapy are nearly twice as likely to attempt suicide as those who don’t. You might not know that research has repeatedly proved that conversion therapy does not work, or why the practice has been condemned by the American Psychiatric Association, the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American School Counselor Association, and the World Health Organization. You might think “sexual orientation change efforts,” as the court calls it, are simply controversial, rather than a discredited practice predicated on teaching LGBTQ kids that they are unworthy, unloved, and going to hell.

The Florida cities defending their bans on conversion therapy argued that, even if strict scrutiny applied to these bans, the ordinances were narrowly tailored to a compelling state interest. The Supreme Court has long held “that a State’s interest in safeguarding the physical and psychological well-being of a minor is compelling.” Overwhelming evidence proves that conversion therapy threatens the physical and psychological well-being of young people, by substantially increases depression, suicidal ideation, and attempts of suicide among the queer and trans people subject to it. But in its most disturbing passage, the Eleventh Circuit waved away this evidence, writing that they couldn’t “restrict the ideas'' to which children are exposed and discounting the uniform condemnation of mental health experts as mere “majority preferences.” The court flattens a fraudulent, lethal form of medical abuse which children are only forced to attend because their parents reject who they are into the mere exchange of ideas. By refusing to recognize the compelling state interest underlying Boca Raton’s law, the Eleventh Circuit may very well be leaving some queer kids in the city to die by suicide.

For decades, conservative jurists told LGBTQ activists and litigants to go to the democratic branches: judicial restraint counseled against expanding LGBTQ rights through the courts. But by overturning these laws on constitutional grounds, Judges Grant and Lagoa are foreclosing our ability to protect queer and trans people through the democratic process. Perversely, some courts have upheld state “mandatory counseling laws” that dictate the speech of abortion providers, finding that these laws do not abridge medical professionals’ free speech rights. This double standard — states can force abortion providers to falsely tell patients that abortion is linked to depression, but stop the democratic branches from banning conversion therapy, a barbaric practice that is actually linked to depression — suggests we may be looking at a future in which anti-choice and anti-LGBTQ judges can use novel First Amendment arguments as cover to impose their policy preferences. And, by creating a split with two circuits which have upheld conversion therapy bans, the 11th Circuit may well be sending the issue to the Supreme Court, accelerating the coming clash between the weaponized First Amendment, economic dignity, and civil rights law.


This post is authored by Sejal Singh and Anna Belkin. Sejal Singh (@Sej_Singh) is a Justice Catalyst Fellow at Public Citizen. Anna Belkin (@AnnaBelkin) is a Fiza Quraishi Fellow at the National Center for Youth Law.

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