A federal appeals court on Wednesday ruled that bans on controversial gay and transgender conversion therapy treatments violate the First Amendment.
The treatment, in which doctors counsel gay or transgender people to accept identities that they have rejected, is condemned by many members of the medical community as bigoted and retrograde. It became a national topic early in the Trump presidency when many people claimed that Vice President Mike Pence supported the treatment in the early 2000s.
In a 2-1 decision, the 11th U.S. Circuit Court of Appeals ruled that the ban in Boca Raton, Florida, on the treatment infringed on the rights of pro-conversion therapy doctors to speak freely with the patients, especially since “support and assistance to a person undergoing gender transition is specifically permitted” by Boca Raton.
In the majority opinion by Judge Britt Grant and joined by Judge Barbara Lagoa, both appointed by President Trump, the judges acknowledged that although conversion therapy is “highly controversial,” as long as it is only “talk therapy,” it is protected under the First Amendment’s freedom of speech.
“But the First Amendment has no carveout for controversial speech,” Grant wrote. “We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”
Quoting an earlier court ruling, Grant wrote that one of the “bedrock” principles of the First Amendment is “that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” adding that the local ordinances clearly violated that principle.
Liberty Counsel President Mat Staver, whose free speech nonprofit organization represented the doctors suing Boca Raton, hailed the victory as the first step toward limits on similar bans.
“This case is the beginning of the end of similar unconstitutional counseling bans around the country,” Staver said.
In a dissent, Judge Beverly Martin wrote that previous bans were “backed up by a mountain of rigorous evidence” and prominent medical associations, including the American Academy of Pediatrics, the American Psychiatric Association, and the American Psychological Association Council of Representatives.
The case is expected to be appealed to the Supreme Court, which last considered the issue in 2017 when it rejected a similar case in California.
