A major legal split over the issue of talk therapy for minors seeking help with unwanted same-sex attractions or sexual identity confusion (aka gender dysphoria) has emerged in the federal appeals courts, perhaps setting the stage for a major U.S. Supreme Court showdown over the First Amendment.
Numerous local and state governments, urged on by LGBT activists and left-leaning professional associations, have passed laws forbidding licensed therapists from talking to minors who are seeking help in living their lives in accordance with their biological sex and biblical imperatives on human sexuality. Several states forbid such treatment, labeling it “conversion therapy” (sometimes known as sexual orientation change efforts, or SOCE) and claiming that such treatment always harms, and never helps, patients.
Several lawsuits have emerged over the years since the rise of such therapy bans, typically alleging that such laws infringe the constitutional rights of therapists, primarily focusing on the freedom of speech. Several federal courts of appeals have ruled on the subject, but the U.S. Supreme Court has not weighed in specifically on the constitutionality of such laws.
That may soon change, however.
Some of the results in the federal courts have been diametrically opposed to each other in the cases that have arisen, creating what is known as a “circuit split.” A circuit split increases the likelihood of the Supreme Court getting involved, since the high court is always interested in seeing that federal law is applied the same in one part of the country as another.
The 9th U.S. Circuit Court of Appeals, for example, just recently upheld Washington state’s law prohibiting licensed therapists and counselors from talking to minors seeking help. In reaching its decision, the 9th Circuit relied on its previous 2015 ruling in a case involving a similar California law.
Both of the 9th Circuit cases justified the therapy bans on the basis of a state’s right to regulate medical treatment. Those cases essentially decided that even though the therapists challenged the law as a violation of their free speech rights, the speech involved was, in effect, medical “treatment” taking the question out of the First Amendment free speech realm. The 3rd Circuit issued a similar type of ruling in a New Jersey case in 2014.
In contrast to the 9th and 3rd Circuits, however, are two recent decisions from the 11th Circuit in Otto v. Boca Raton, in which that appellate court agreed with the therapists challenging a local Boca Raton, Florida, ordinance banning “conversion therapy.”
“People who actually hurt children can be held accountable, but ‘[b]road prophylactic rules in the area of free expression are suspect,’” Judge Grant wrote for the majority in 2020. “In other words, ‘[e]ven where the protection of children is the object, the constitutional limits on governmental action apply.’”
The entire complement of 11th Circuit judges (11 of them) recently looked at the original 3-judge panel decision from 2020 and refused to rehear the case, indicating that a majority of the court agreed with the original ruling.
It’s possible – perhaps even likely – that the losing side in either the 9th or 11th Circuit cases may soon appeal to the Supreme Court, setting up the possibility of a major First Amendment showdown.
It’s important to note, first of all, that “conversion therapy” is a made-up term. LGBT activists oppose offering help to people seeking to change, since any “help” a patient receives could undermine their long-standing argument that people with same-sex attraction or sexual identity confusion are “born that way” and cannot change.
Focus on the Family does not do “conversion therapy” – but then nobody does, because it’s not a thing. It doesn’t exist. It’s a meaningless term created by those who oppose leaving homosexuality or transgenderism.
But we do strongly support client autonomy and self-determination, meaning people have the right to engage in ethical therapy that is in line with their goals and values. Such work with trained pastoral counselors or licensed mental health professionals is often invaluable in helping people find freedom from unwanted homosexuality or sexual identity confusion.
But what about professional organizations like the American Psychological Association and others who claim that “studies” support their conclusion that “conversion therapy” is harmful?
The 9th Circuit relied on such studies to justify their two decisions affirming state bans on such therapy. The 11th Circuit, however, not only criticized the studies as “ambiguous proof” and “equivocal conclusions,” but also noted they are irrelevant to the First Amendment issue involved.
More recent studies bear out the wisdom of the 11th Circuit’s reservations concerning earlier studies. In fact, a recent study by Rev. D. Paul Sullins, Ph.D, a research associate professor of sociology with the Catholic University of America, has demonstrated that even failed “sexual orientation change efforts” (SOCE) are not associated with causing behavior harms. He found, “The SOCE group was statistically indistinguishable from the non-SOCE group on any measure of harm.”
So, what might the Supreme Court do if faced with the question of whether government can forbid therapists from talking to their patients about their struggles with either same-sex attraction or sexual identity confusion?
The high court may have given us a hint at an answer in the 2018 case of NIFLA v. Becerra, in which the justices struck down a California law that compelled pro-life pregnancy resource centers to speak a pro-abortion message to their clients, contrary to their beliefs. California attempted to justify its regulation of the speech of the pregnancy resource centers on the grounds that it was “professional speech” rather than pure speech.
“But this Court has not recognized ‘professional speech’ as a separate category of speech,” wrote Justice Clarence Thomas for the majority in NIFLA. “Speech is not unprotected merely because it is uttered by ‘professionals.’”
The 9th Circuit essentially dismissed Justice Thomas’ clear exposition on the First Amendment, claiming that “conversion therapy” fits under an exception to what Thomas said.
We may perhaps soon see whether Justice Thomas and the NIFLA majority agree with the 9th Circuit or the 11th Circuit about the First Amendment rights of therapists. It’s not right that the needs of patients must take a back seat to the ideological agenda of LGBT activist organizations who have ulterior motives for denying them their chance to obtain help.
We’ll let you know if and when either of those cases are appealed to the high court.
The cases are Tingley v. Ferguson and Otto v. Boca Raton.
Related:
President Signs ‘LGBTQI+ Pride Month’ Executive Order
Education Department Investigates Religious Schools for Upholding Christian Teaching
New Study: Even Failed Efforts to Leave Homosexuality Are Not Harmful
Arizona Bill Threatens Religious Freedom, Parental Rights, Privacy and Safety
Facebook Targets Christian Ministries Helping People Leave Transgenderism and Homosexuality
Thousands of Churches Preach Truths on Sexuality Following Canadian ‘Conversion Therapy’ Ban
UK Pastors Fight Ban on Help for Those With Unwanted Homosexuality or Gender Confusion
Judge Dismisses Therapist’s Lawsuit Over Ban on Counseling for Same-Sex Attraction, Gender Identity
New Study Shows Therapy to Leave Homosexuality Can Be Effective and Helpful
Is Therapy to Leave Homosexuality Damaging? New Review Says, ‘No Proof of Harm’
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