A federal appellate court last week struck down local bans in Florida on psychotherapy aimed at changing the sexual identity or orientation of minors.
The ruling increases the odds of the “conversion therapy” issue ending up in the U.S. Supreme Court because other federal judicial circuits in California and elsewhere have ruled the opposite way on the issue. In those decisions, judges said they were convinced by the results of multiple psychological studies finding the therapy harmful to kids.
Rather, the 11th Circuit U.S. Court of Appeals found that ordinances banning conversion therapy in Boca Raton, Florida, and Palm Beach County found that the science was not compelling enough to overcome therapists’ constitutional right to free speech under the First Amendment.
The judges who wrote the majority opinion for the appeals court, Trump appointees Britt C. Grant and Barbara Lagoa, conceded that conversion therapy is “highly controversial,” but that “the First Amendment has no carveout for controversial speech.”
In their view, it wouldn’t be wise to rely on the many professional organizations that oppose the practice because those groups might “do an about-face” if more research changes their thinking. They pointed to the American Psychiatric Association (APA), which in 1973 reversed its stance and removed homosexuality from its list of mental illnesses – seen as a major milestone for LGBTQ equality.
In 2015, the APA applauded the federal government’s call for an end to the practice of conversion therapy on children.
“This important report makes it clear that conversion therapy is not appropriate for dealing with sexual orientation or gender identities in children and youth,” said Judith M. Glassgold, APA associate executive director for public interest government relations at the time.
Judge Beverly C. Martin rejected the notion that the science on conversion therapy was not solid enough to rely on, saying there was a “mountain of rigorous evidence” showing that it “pose[s] real risks of harm on children.” Among the harms cited in a Cornell University study, those harms include depression, suicidality, anxiety, social isolation and a decreased capacity for intimacy.
And even if someone did want to do additional research to confirm whether the therapy is truly harmful, Martin wrote in her dissent, it would be unethical at this point to risk subjecting children to that harm.
One prominent critic of the ruling, Amit Paley, CEO and executive director of The Trevor Project, called conversion therapy “fraud” in a statement, saying sexual orientation and gender identity can’t be changed “no matter how hard you try.”
“This misguided decision sends a terrible message to the LGBTQ young people of Florida, who want nothing more than to be respected for who they are,” Paley said.
If the issue does go to the Supreme Court to resolve the conflicting appellate level rulings, those who favor the 11th Circuit’s view probably like their chances with the current makeup of the Supreme Court, as the recent confirmation of Justice Amy Coney Barrett gives conservatives a 6-3 majority there. The high court declined to decide the issue in 2017 based on California case that had upheld a ban on conversion therapy.