By LJSJ Staff
Earlier this year, Virginia became the most recent state in the United States (and the first in the South) to ban licensed mental health therapists from performing conversion therapy on minors.[1] “Conversion Therapy” refers to a wide range of (discredited) practices which attempt to change the sexual orientation, gender identity, or gender expression of LGBTQ+ individuals.[2] The methods used by its practitioners range from talk-based “therapy” to physical aversion treatments (such as inducing nausea or utilizing electric shocks).[3] These practices are ultimately united by the resounding and uniform condemnation of prominent psychological and counseling associations, which consider conversion therapy unnecessary, ineffective, and potentially harmful.[4] Sadly, outcomes such as depression, self-hatred, increase in substance abuse, and even suicidality have been associated with conversion therapy. [5]
Twenty states have passed bans on the practice of conversion therapy on minors by licensed mental health professionals.[6] The history of the bans is relatively brief, with the first state to pass such a law being California in 2012, and the vast majority of other state bans coming within the past five years.[7] In several states without such bans, counties and cities have enacted their own local ordinances prohibiting licensed medical professionals from engaging in conversion therapy with minors.[8]
Despite the proliferation of these bans, and public support for them, there have been constitutional challenges by practitioners of conversion therapy who claim such laws infringe upon their Free Speech rights.[9] The most recent of these challenges is currently on appeal with the Eleventh Circuit in Otto v. City of Boca Raton.[10] This case could become particularly salient to the question of the constitutionality of conversion therapy bans, as it is the first case to go to the circuit level on this issue after National Institute of Family and Life Advocates v. Becerra (NIFLA).[11] NIFLA itself was not about conversion therapy; it dealt with the legality of disclosures California law required pregnancy crisis centers to make.[12] However, NIFLA did disrupt the prominent case law on conversion therapy bans at the time. [13]
Prior to 2018, two circuits had dealt with this question of what (if any) First Amendment protection conversion therapists could claim.[14] Both courts concluded, through different reasoning, that such bans were constitutional.[15] The Ninth Circuit in Pickup v. Brown held that conversion therapy is not really “speech” as much as it is a kind of conduct to which speech is only incidental.[16] The court explained that there is a continuum, with purely expressive speech at one end (receiving the most constitutional protection), mere conduct on the other (receiving the least), and between them a category of “professional speech.”[17]
The Third Circuit fleshed this concept out more in King v. Governor of the State of New Jersey, where it determined that intermediate scrutiny was the appropriate standard for assessing whether restrictions on professional speech were legal.[18] The court in King disagreed with the holding in Pickup in that it determined conversion therapy efforts to be speech (rather than conduct), but that its status as professional speech entitled it only to intermediate scrutiny.[19] The Third Circuit held that the ban furthered a legitimate government interest, and that it was not more extensive than necessary in securing that interest.[20] It is important to note that both Pickup and King were unambiguous about the potential harm of conversion therapy, as well as the legitimacy of the states’ interest in restricting it.[21]
However the Supreme Court abrogated much of the reasoning in Pickup and King through its NIFLA decision.[22] The Court held that “professional speech” did not exist as a category in constitutional jurisprudence.[[23]] Content-based speech restrictions could not use professional context to avoid strict scrutiny.[24] The majority also placed significant value on “preserving an uninhibited marketplace of ideas” among varying professions, including doctors.[25]
NIFLA’s impact on King was clear; professional speech was central to the Third Circuit’s ruling.[26] It’s impact on Pickup is more difficult to define. A restrictive reading of NIFLA might not be fatal to the idea that conversion therapy is still conduct, but the opinion’s tone casts serious doubt on the idea that the Supreme Court would envision speech based therapy to be entitled to lesser protection than “professional” speech.[27] Less than a month after the Supreme Court decided NIFLA, two therapists practicing conversion therapy in Florida filed a complaint requesting a preliminary injunction against the city of Boca Raton and Palm Beach County to prevent enforcement of their conversion therapy bans.[28]
The district court in Otto v. City of Boca Raton acknowledged that after NIFLA, “the landscape of relevant First Amendment precedent is a morass when trying to address the specific facts in this case.”[29] The opinion meticulously walks through a series of questions in trying to understand what standard of review is appropriate for these bans.[30] The court walks through whether the bans regulate “speech” or “conduct” (finding the former), then asks whether the bans are content neutral or content based (finding the latter), and finally tries to establish whether this is a content based regulation which requires strict scrutiny, or allows for intermediate scrutiny.[31]
At this juncture, Otto takes an interesting turn. The court suggests that talk-based therapy is akin to a “prescription” carried out verbally, and that a strict scrutiny approach to these bans may be inappropriate.[32] However, all the court does is suggest intermediate scrutiny, and it admits that it does not have an answer regarding what standard of review to use.[33] The court believes the standard should be higher than rational basis, but beyond that leaves the question open.[34] After analyzing how the court believes the bans would survive each standard, it finds that they would likely pass rational basis and intermediate scrutiny, and that the question of strict scrutiny is too close to call.[35] However, since this is a preliminary injunction, the court determines that the conversion “therapists” failed to show “substantial likelihood on the merits” of their free speech claim.[36]For whatever reason, the district court declined to fully answer the question in this case. Now that the case is on appeal, it may fall on the Eleventh Circuit to find an answer.
Otto’s importance should not be overstated; even if the Eleventh Circuit holds these bans as unconstitutional speech infringement, it would not invalidate bans outside of that circuit (Florida is the only state with any municipal bans in that circuit).[37] However, because judicial review of these laws is sparse and relatively new, this opinion has the potential to signal a change from previous conversion therapy cases after the uncertainty NIFLA created. If Otto takes a markedly different turn from Pickup and Brown and holds that conversion therapy bans are subject to strict scrutiny (and maybe unconstitutional), it could embolden challenges in other states or localities to bans prohibiting licensed therapists from subjecting minors to conversion therapy.
These bans protect numerous, vulnerable LGBTQ+ youth. In every single case that has handled this question, the factual record has clearly emphasized that the practice of conversion therapy, even if performed purely through talk therapy, has the potential to cause significant harm to LGBTQ+ minors.[38] While the spread of conversion therapy bans should be celebrated and encouraged in other states, it is important to be aware of the potential challenges the bans might encounter going forward.
[1] Sandra E. Garcia Virginia Is First Southern State to Ban Conversion Therapy for Minors, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/03/us/va-conversion-therapy-ban.html.
[2] Mallory et al. Conversion Therapy and LGBT Youth Update at 1 (2019) https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-Update-Jun-2019.pdf
[3] Id. at 2
[4] Policy and Position Statements on Conversion Therapy, Hum. Rts Campaign, https://www.hrc.org/resources/policy-and-position-statements-on-conversion-therapy (last visited Sept. 15, 2020).
[5] Judith M. Glassgold et Al. Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation at 49 (2009) https://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf
[6] Conversion “Therapy” Laws, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/conversion_therapy (last visited Sept. 15, 2020).
[7] Id.
[8] Id.
[9] Mallory et al. Conversion Therapy and LGBT Youth Update at 2-3 (2019) . https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-Update-Jun-2019.pdf.
[10] Otto v. Boca Raton, No. 19-10604 (11th Cir. argued Feb. 11th 2020).
[11] Nat’l Inst. Of Life and Fam. Advocs. v. Becerra, 138 S.Ct. 2361 (2018).
[12] Id. at 2365.
[13] See id. at 2371-72.
[14] Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014); King v. Governor of the State of N.J., 767 F.3d 216 (3d Cir. 2014).
[15] Pickup, 740 F.3d at 1222; King, 767 F.3d at 240.
[16] Pickup, 740 F.3d at 1229-30.
[17] See id. at 1227.
[18] King, 767 F.3d at 238.
[19] Id. at 228-29.
[20] Id. at 240.
[21] Pickup, 740 F.3d at 1232; King, 767 F.3d at 238.
[22] Nat’l Inst. Of Life and Fam. Advocs. v. Becerra, 138 S.Ct. 2361, 2371-72 (2018).
[23] Id.
[24] See id. at 2734
[25] Id. (quoting McCullen v. Coackley, 573. U.S. 464, 476 (2014))
[26] King, 767 F.3d at 233.
[27] See Becerra, 138 S.Ct. at 2375.
[28] Verified Complaint for Declaratory, Preliminary, and Permanent Injunctive Relief at 35 Otto v. City of Boca Raton, 353 F.Supp.3d 1237 (S.D. Fla. 2019).
[29] Otto v. Boca Raton, 353 F.Supp.3d 1237, 1249 (S.D. Fla. 2019)
[30] See id. at 1249-54.
[31] Id.
[32] Id.at 1255.
[33] See id.
[34] Id. at 1258.
[35] Id. at 1267.
[36] Id. at 1268.
[37] Conversion “Therapy” Laws, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/conversion_therapy (last visited Sept. 15, 2010).
[38] See Pickup v. Brown, 740 F.3d 1208 at 1232 (9th Cir. 2014); King v. Governor of the State of N.J. 767 F.3d 216 238 (3d Cir. 2014); Otto v Boca Raton 353 F.Supp.3d 1237, 1259-62; Doyle v. Hogan 411 F.Supp.3d 337, 346 (D. Md. 2019).
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