Is conversion therapy protected by free speech?
Conversion therapy – an attempt to change a person’s sexuality so that they become heterosexuality – has been criticised by dozens of mental health and medical groups, as well as being condemned by the LGBTQ community. A task force from the American Psychological Association concluded that efforts to change sexual orientation are harmful and unlikely to be successful.
While some countries have moved to ban conversion therapy, in the UK it is still legal and still being inflicted on vulnerable young people.
In the United States, several states have enacted legislation to ban conversion therapy. California was the first US state to successfully ban conversion therapy, enacting the required legislation in 2012. Since then, 14 other states in the US have enforced similar bans.
However, these bans on conversion therapy are not going unchallenged.
In recent months, a court in Tampa, Florida, has overturned a conversion therapy ban on the grounds that it violates First Amendment free-speech rights.
The Washington Post reports that a pair of licensed marriage and family therapists, along with a Christian ministry organisation, sued the city of Tampa over an ordinance adopted in April 2017 that barred mental health professionals from subjecting minors to conversion therapy.
The therapists, represented by the conservative Christian legal advocacy group Liberty Counsel, argued that the ordinance was unconstitutional because it prohibited them from taking part in “speech” through their counselling, simply because city officials disagree with the content of that speech.
In her decision, the judge ruled that the plaintiffs sufficiently demonstrated a likelihood of success with their arguments that the ordinance violates their free-speech rights. The judge also said the city presented no evidence of minors being harmed by conversion therapy counselling within city limits. The judge recommended a limited injunction against enforcing the ban on “non-coercive” sexual orientation conversion efforts that consist entirely of “talk therapy.” Under her recommendation, conversion-therapy techniques that are “aversive,” such as electroshock therapy, would still be banned. Her report will be sent to a federal district judge, who will issue a ruling.
The Washington Post reports that the judge’s opinion is unusual because it runs contrary to two circuit court opinions that have upheld conversion-therapy bans in California and New Jersey. Her position implies that speech by medical professionals should fall under the same First Amendment protections as any other speech.
The US Supreme Court has twice upheld California’s 2012 ban on conversion therapy for minors. But a recent Supreme Court ruling – National Institute of Family & Life Advocates v. Becerra – has given renewed hope to some conservative advocacy groups seeking to overturn bans on conversion therapy. In that decision, the Supreme Court ruled that crisis pregnancy centres, which aim to persuade women to continue their pregnancies, cannot be required to tell their patients about the availability of state-offered services, including abortion.
Recent appointments to the US Supreme Court are believed to have shifted the Court to a more conservative outlook. It’s going to be worth keeping an eye on whether progress that has been made in banning conversion therapy in the US will come under increasing pressure.