‘The First Amendment has no carveout for controversial speech…’
By Dorothy Cummings McLean
FLORIDA, November 20, 2020 (LifeSiteNews) — The United States Court of Appeals for the 11th Circuit has ruled that a ban on therapy for unwanted sexual attractions violates the First Amendment of the U.S. Constitution.
In today’s decision, two of three justices, U.S. Circuit Judge Britt Grant and Circuit Judge Barbara Lagoa, agreed with the plaintiffs, therapists Robert W. Otto and Julie H. Hamilton, that a prohibition on therapy aimed at “reducing a minor’s sexual or romantic attraction (at least to others of the same gender or sex), or changing a minor’s gender identity or expression” violates their “constitutional right to speak freely with clients.”
“We understand and appreciate that the therapy is highly controversial,” wrote Circuit Judge Grant. “But the First Amendment has no carveout for controversial speech.”
“We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”
The decision recalls that in 2017 Palm Beach County, Florida, and the City of Boca Raton, Florida “joined a growing list” of states and towns that prohibit therapies the court called “sexual orientation change efforts.” It recognized that plaintiffs reject the term “conversion therapy,” “which they associate with shock treatments, involuntary camps, and other chimerical or long-abandoned practices.”
The City of Boca Raton forbid any professional counsellor, save clergy, from treating minors with “any counseling, practice or treatment performed with the goal of changing an individual’s sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.”
Palm Beach County banned “the practice of seeking to change an individual’s sexual orientation or gender identity, including but not limited to efforts to change behaviors, gender identity, or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.”
However, as the Court underscored, both ordinances allowed counsellors to influence minors to change their biological sex.
“But both ordinances contain a significant carveout: they expressly allow ‘counseling that provides support and assistance to a person undergoing gender transition,’” the majority justices noted.
The plaintiffs provide counselling to minors coping with unwanted same-sex attractions and gender issues through “talk therapy.” According to the judgement, Otto and Hamilton do not claim to be able to change a sexual orientation, but they have been able to help clients “reduce” their same-sex sexual behavior and attraction and also to “eliminate” confusion over gender identity. Their clients seek the treatment of their own volition, typically because they wish to live in conformity with their religious beliefs.
When the plaintiffs first filed against the new ordinances against reparative therapy, the district court denied the motion.
“This is a case about what speech the First Amendment allows the government to ban, and under what circumstances,” the majority justices wrote.
They were particularly interested in the question from the point of view of speech “content.” They noted that the “First Amendment exists precisely so that speakers with unpopular ideas do not have to lobby the government for permission before they speak.” However, both the City and the County ordinances specifically banned the content of speech, that is, anything that helps the client not to act on same-sex desires or not to seek a sex change.
“So the ordinances discriminate on the basis of content—at a minimum,” the majority justices ruled.
“They also discriminate on the basis of viewpoint. After all, the plaintiffs’ counseling practices are grounded in a particular viewpoint about sex, gender, and sexual ethics,” they continued.
“The defendant governments obviously hold an opposing viewpoint—one that they surely have the right to promote. But they cannot engage in ‘bias, censorship or preference regarding [another] speaker’s point of view’.”
It is obvious that this is what the governments were doing because they made an exception for professional therapists who support minors in their wish to “change” their sex.
“The exception expressly allows ‘counseling that provides support and assistance to a person undergoing gender transition,’” the majority justices observed.
“No such carveout exists for sexual orientation. The ordinances thus codify a particular viewpoint—sexual orientation is immutable, but gender is not—and prohibit the therapists from advancing any other perspective when counseling clients,” they continued.
“That viewpoint may be widely shared in the communities that passed the ordinances, but widespread agreement is beside the point; the question is whether a speaker’s viewpoint determines his license to speak. Here, the answer is yes.”
The majority judges stated that viewpoint-based regulations are “an egregious form of content discrimination” and that there is an argument that they are in themselves unconstitutional.
“The Supreme Court has said that ‘the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others,” they wrote.
Grant and Lagoa were appointed to the bench by President Donald Trump. Lagoa is on Trump’s list of possible Supreme Court nominees, and was rumored to be a frontrunner to replace the late Justice Ruth Bader Ginsburg before Trump officially nominated now-Justice Amy Coney Barrett.
Circuit Judge Beverly B. Martin, who was appointed by former President Barack Obama, dissented from the decsion. She believes that talk therapy aimed at helping clients reduce their same-sex desires or gender confusion is a “harmful medical practice.”
“The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech,” Martin wrote.
“Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist,” she continued.
“I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility.”
This article has been updated.