In a win for the First Amendment, the Eleventh Circuit Court of Appeals affirmed patients’ right to seek therapy for unwanted feelings of same-sex attraction or gender dysphoria. On Wednesday, the court denied a request for an en banc review of a three-judge panel’s 2020 decision that struck down bans on the therapy.
In the original panel decision, the court wrote:
Boca Raton and Palm Beach County prohibit therapists from engaging in counseling or any therapy with a goal of changing a minor’s sexual orientation, reducing a minor’s sexual or romantic attractions (at least to others of the same gender or sex), or changing a minor’s gender identity or expression—though support and assistance to a person undergoing gender transition is specifically permitted. These restrictions apply even to purely speech-based therapy. Two therapists argue that the ordinances infringe on their constitutional right to speak freely with clients. They appeal the district court’s denial of their motion for a preliminary injunction. We understand and appreciate that the therapy is highly controversial. 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 panel noted that Boca Raton’s ordinance restricted providers from counseling minors to change “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.”
Similarly, Palm Beach County sought to ban “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, the court noted, “both ordinances contain a significant carveout: they expressly allow ‘counseling that provides support and assistance to a person undergoing gender transition.’”
That the now-defunct ordinances banned counseling a minor to accept his or her gender while permitting counseling him or her to “transition” to the opposite gender was a bridge too far.
Sadly, at present, much of kids’ culture — from cartoons to classrooms — has evolved into a system aimed at corrupting children’s innocence and shoving a positive view of exotic sexuality down their throats. Thus, it’s not at all surprising that there’s been a massive increase in the number of young people who consider themselves to be “non-heterosexual” or “transgender” in the past few years. And this has caused quite a bit of distress to kids who have no interest in such things but feel intense pressure to approve and even participate.
It has been maddening that leftists ban parents from taking their children to get help in undoing some of this environmental harm while simultaneously making sure that professionals are ready and waiting to propel unhappy kids down the queer continuum.
Then there is also the genuine sexual identity distress suffered by people with Homosexual Obsessive-Compulsive Disorder (HOCD). These heterosexual patients are tormented by the idea that they may be secretly gay; are they to be denied competent help? And what of the patient who was victimized by a sexual abuser as a child and now wrestles with confusion about his or her sexuality — will this patient be permitted counsel that he or she may be a boring old straight after all?
On Wednesday, the Eleventh Circuit reaffirmed the panel’s ruling that there is an equal right to heterosexual, biologically objective, and traditional counsel as there is to the alternative variety. “The perspective enforced by these local policies is extremely popular in many communities. And the speech barred by these ordinances is rejected by many as wrong, and even dangerous,” wrote Judge Grant, joined by Judges Branch and Lagoa, in an opinion concurring with the denial of review. “But the First Amendment applies even to—especially to—speech that is widely unpopular…”
Christian non-profit Liberty Counsel represented the therapists and their minor clients as they challenged the bans on certain treatments. In a victory statement, Founder and Chairman Mat Staver said:
This is a huge victory for counselors and their clients to choose the counsel of their choice and be free of political censorship from government ideologues. This case is the beginning of the end of similar unconstitutional counseling bans around the country. Under the laws that were struck down, a counselor could encourage a client to take life-altering hormone drugs or even undergo invasive surgery to remove healthy body parts but could not help a client who seeks to overcome unwanted same-sex attractions, behavior, or confusion. Clients have the right to self-determination. They have the right to select a counselor. Counselors are like a GPS helping the client to reach the desired objective. Yet, these counseling bans injected a government mandated ideology to override the counselor and the client. These laws clearly violate the First Amendment.
This important ruling gives miserable youth and their worried families hope that they will be able to choose the treatment and goals that best fit their own situation. After all, the pursuit of happiness is every American’s right.