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In a stunning and precedent-setting decision, a federal appeals court has decided that local and state rules that ban counselors from working with those young people who have unwanted same-sex attractions are unconstitutional.
"We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny," the ruling from the 11th U.S. Circuit Court of Appeals said.
The decision was the first from a federal appeals court on such laws since the U.S. Supreme Court in NIFLA v. Becerra in 2018 concluded not even the government can force an individual or organization to express its chosen message.
The current case, Otto, et al v. City of Boca Raton, found that the local ban on counseling young people to conform themselves to their biological sex violates the Constitution.
The case was fought by Liberty Counsel, which represents Robert Otto and Julie Hamilton and their minor clients.
They argued the Boca Raton and Palm Beach County ordinances that prohibited minors from voluntary counseling from licensed professionals shouldn't stand.
The licensed therapists provide life-saving counseling to minors who want to conform their attractions, behaviors, and gender identities to their sincerely held religious beliefs.
"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," a report explained.
"Nor can the local governments evade the First Amendment’s ordinary presumption against content-based speech restrictions by saying that the plaintiffs’ speech is actually conduct. We can understand why they would make this claim; if the ordinances restricted only non-expressive conduct, and not speech, then they would not implicate the First Amendment at all. Our Court, though, has already rejected the practice of relabeling controversial speech as conduct. In a case quite similar to this one, we laid down an important marker: 'the enterprise of labeling certain verbal or written communications 'speech' and others 'conduct' is unprincipled and susceptible to manipulation,'" the court said.
The problem is that under the ordinances, which have been appearing more and more across the country, "It only matters that some words about sexuality and gender are allowed, and others are not…," the court said.
"Speech does not need to be popular in order to be allowed. The First Amendment exists precisely so that speakers with unpopular ideas do not have to lobby the government for permission before they speak," the decision said.
"The local governments are not entirely wrong when they characterize speech-based SOCE as a course of conduct. SOCE, after all, is a therapy, and plaintiffs say they want to ‘engage’ in it. But plaintiffs have the better of the argument. What the governments call a ‘medical procedure’ consists—entirely—of words. As the district court itself recognized, plaintiffs’ therapy ‘is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.’ If SOCE is conduct, the same could be said of teaching or protesting—both are activities, after all. Debating? Also an activity. Book clubs? Same answer. But the law does not require us to flip back and forth between perspectives until our eyes hurt."
The 2-1 decision from Judge Britt Grant, who was joined by Judge Barbara Lagoa, said the therapy is controversial, but as it is only "talk," it is protected.
Liberty Counsel President Mat Staver, whose free speech non-profit organization represented the doctors suing Boca Raton, said, "This case is the beginning of the end of similar unconstitutional counseling bans around the country."
The dissent cited various organization medical associations, all left-leaning, who claim such talk therapy is damaging to children.
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