Ruling scraps conversion therapy bans across Florida

  • Justin Utley, left, and Nathan Dalley hug following a news conference Jan. 22 about the discredited practice of conversion therapy for LGBTQ children. UTah became the 19th state to ban the practice in January; Utley and Dalley both underwent the therapy. AP

Miami Herald
Published: 11/28/2020 11:37:56 AM
Modified: 11/28/2020 11:37:46 AM

MIAMI — As a result of a federal appeals court ruling that struck down laws in Palm Beach County banning LGBTQ conversion therapy, other Florida municipalities with similar laws can no longer enforce such bans on therapies that attempt to change a minor’s sexual orientation or gender identity.

That’s according to attorney Rob Rosenwald of the city of Miami Beach, which in 2016 became the first city in Florida to pass a law banning licensed medical providers from practicing conversion therapy on a child.

The two laws struck down by a panel of the 11th Circuit Court of Appeals, in Palm Beach County and Boca Raton, share language cribbed from the Miami Beach ordinance, he said. So, too, do laws passed by the city of Miami, the village of El Portal, Bay Harbor Islands and North Bay Village.

Medical organizations have concluded that conversion therapy can lead to depression and suicidal thoughts among children. The practice is banned in 20 states and Washington, D.C., according to a study by the Williams Institute at UCLA School of Law.

In Miami Beach, which has two openly gay commissioners on its seven-member elected body, the ruling threatens to undo the city’s efforts to support the LGBTQ community.

Commissioner Michael Gongora, who as an openly gay man has advocated for LGBTQ protections, said the city will continue to fight to uphold its ban. If the appellate ruling is ultimately upheld, he said, the commission could attempt to craft a new ordinance that restricts the therapy while not running afoul of the law.

“This decision is legally and morally wrong,” he wrote in a statement. “There is no First Amendment right to practice junk science on LGBT minors, and the decision this week should be reversed before anyone else is harmed by this scientifically rejected practice.”

The 11th Circuit ruling can be challenged if attorneys for Boca Raton or Palm Beach seek a rehearing by the three-judge panel or an en banc review before the full court. If that request is denied, either party can seek U.S. Supreme Court review. The 11th Circuit split from the 9th and 3rd Circuit courts, which upheld conversion therapy bans in California and New Jersey in recent years.

Until a request for review is approved, the ruling remains in effect, nullifying all similar laws in Florida, Georgia and Alabama.

“The 11th Circuit decision is binding precedent throughout Florida, Georgia, and Alabama,” Rosenwald wrote in an email.

“Therefore, unless and until this decision is rectified, the City of Miami Beach cannot enforce its prohibition on conversion therapy for minors.”

The ruling stems from a 2018 lawsuit that argued that the bans infringe upon the right to free speech and religious liberty.

The Orlando-based nonprofit law firm Liberty Counsel, which advocates for Christian values, filed the lawsuit on their behalf.

Matthew Staver, the firm’s senior pastor and chief counsel in the case, said he objected to the use of the term “conversion therapy” to describe the practice.

“The counselor is like a GPS and the client has the right to choose the goal of counseling,” he wrote in an email. “Like a GPS, the counselors do not impose their predetermined course on the client.”

In 2019, a U.S. District Court judge rejected Liberty Counsel’s legal challenge. But the three-judge 11th Circuit panel ruled 2-1 to reverse the order and revoke the laws.

In her majority opinion, Judge Britt Grant wrote that the bans amounted to viewpoint discrimination.

Also in the majority was Miami-born Judge Barbara Lagoa, who had been reportedly considered by President Donald Trump for the Supreme Court vacancy left by the late Justice Ruth Bader Ginsburg. Trump appointed both judges to their seats on the appellate court.

“People have intense moral, religious and spiritual views about these matters — on all sides,” Grant said. “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.”

Judge Beverly Martin, an appointee of former President Barack Obama, wrote in her dissent that the laws do not prohibit a therapist from talking to a minor about conversion therapy or recommending the therapy.

Because protecting minors from a “harmful medical practice” is in the interest of the government, municipalities are legally permitted to narrowly restrict free speech in certain cases, she wrote.

“I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility,” she wrote.

In a statement, Mayor Dan Gelber asked that the appellate court uphold the ordinance to ensure the safety of the city’s LGBTQ youth.

“The city of Miami Beach works hard not to just check the box on keeping LGBT youth safe, but we pride ourselves on creating the boxes that other people get to just check off,” he wrote in a statement. “The protection of the health, safety and welfare of minors in our city is the core of our local government power, so we will continue to try to create new ways to stop conversion therapy within our city in order to make sure that we dutifully perform that duty.”

Commissioner David Richardson, who was the first openly gay Florida lawmaker, attempted to impose a statewide conversion therapy ban in 2016. He then pushed for the local bans in Miami Beach and Miami, which were located in his legislative district. The Beach ban was sponsored by former Commissioner John Elizabeth Aleman

“It’s incredibly important that we fight to keep this ban that will protect youth that might otherwise be subjected to this sort of therapy — that really isn’t therapy at all,” Richardson said.

In 2017, the Miami-Dade County Commission rejected a proposed ban on conversion therapy put forward by Commissioner Sally Heyman, who represents part of Miami Beach.

Orlando Gonzales, the executive director of the South Florida LGBTQ advocacy group SAVE, decried the 11th Circuit ruling as harmful to “vulnerable young people” otherwise protected by the laws.

“This is an extreme decision by two Trump-appointed judges that ignores science and puts vulnerable young people at risk,” he wrote. “All other federal appeals courts have upheld similar protections against conversion therapy by siding to protect children from the harm of conversion therapy.”




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