Taylor Chervo | Can States Constitutionally Ban Conversion Therapy?

BACKGROUND

The First Amendment of the United States Constitution protects an individual's right to free speech and the free exercise of their religion. However, the Circuit Courts have disagreed on the line between religious freedom, free speech, and a state’s ability to protect its minor citizens from harmful practices.

Conversion therapy is a discredited therapeutic practice that seeks to change an individual’s sexual orientation from gay or bisexual to heterosexual and an individual’s gender identity from transgender or non-binary to cisgender. Mainstream psychological experts have denounced conversion therapy. The American Psychological Association states that “[conversion therapy] puts individuals at a significant risk of harm.”

In 2014, the 9th Circuit upheld a California law banning state-licensed mental health providers from performing conversion therapy on minors. Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014). The 9th Circuit specified three “continuums'' regarding First Amendment protection for professional speech and conduct: (1) “public dialogue” by a professional at one end of the continuum; this receives the greatest First Amendment protection; (2) at the midpoint of the continuum, “professional speech” within the confines of a professional relationship receives “somewhat diminished” protection under the First Amendment; (3) at the other end of the spectrum is “professional conduct” where states have a great deal of power to regulate. Id. at 1227-1229. The court, using rational review, held that California’s conversion therapy ban fell within the continuum of professional conduct and subsequently upheld it.

In 2018, the Supreme Court reviewed the 9th Circuit’s Pickup doctrine in National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”). The 9th Circuit appealed NIFLA, and it dealt with a California law that required pregnancy clinics to inform clients that California offered free or low-cost family planning measures, including abortion. Relying on Pickup, the 9th Circuit held that the law fell at the midpoint of the continuum and upheld the law as satisfying intermediate scrutiny. See Nat'l Inst. of Family & Life Advoc. v. Harris, 839 F.3d 823, 838-42 (9th Cir. 2016). In NIFLA, the Supreme Court reversed, calling out Pickup directly, explaining that it had never “recognized ‘professional speech’ as a separate category of speech.” 138 S. Ct. at 2371-2372. However, the Court held that there are some situations where speech by professionals is afforded less protection, thus allowing for State regulation. One of these situations allows states to “regulate professional conduct, even though that conduct incidentally involves speech.” Id. at 2372.

ISSUE

Are state laws that prohibit state-licensed medical professionals from performing conversion therapy on LGBT+ patients under the age of 18 valid?

THE SPLIT

9th Circuit

Tingley v. Ferguson, 47 F.4th 1055 (9th Cir. 2022) involved a challenge to SB 5722, a Washington law remarkably similar to the California law in Pickup, that bans state-licensed professionals from performing conversion therapy on minors. The 9th circuit affirmed the district court’s dismissal that held that Pickup still applied. In the instant case, the plaintiff, a state-licensed family therapist who performs conversion therapy on minors, asserted that the law violated his right to free speech and free exercise under the First Amendment. The district court dismissed his claim.

On the free speech claim, the 9th Circuit held that the Washington law regulated professional conduct and thus did not run afoul of the First Amendment. The plaintiff attempted to argue that the Supreme Court decision in NIFLA completely abrogated Pickup. The 9th Circuit judged whether NIFLA completely overruled Pickup by deciding whether Pickup was “clearly irreconcilable” with NIFLA. See Id. at 1075 (quoting Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc)). The 9th circuit held that Pickup could be “reasonably harmonized” with NIFLA because the Supreme Court only struck down the midpoint of Pickup’s continuum, which was not applied to the California conversion therapy law. 47 F.4th at 1075 (quoting Lair v. Bullock, 697 F.3d 1200, 1206-07 (9th Cir. 2012)).

On the free exercise claim, the court held that the Washington law satisfies “neutrality” because the purpose of the ban on conversion therapy is to “pre[vent] harm to minors.” See 47 F.4th at 1085; 2018 Wash. Sess. Laws, ch. 300, § 1. Washington state exempts counselors acting under the auspices of a “religious denomination church, or religious organization.” Wash. Rev. Code § 18.122.030(4). The court held that the plaintiff’s claim failed because, although his Christian views inform his practice, he does not work under the auspices of a religious denomination. 47 F.4th at 1066.

11th Circuit

In Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020), the 11th Circuit struck down ordinances that prevented licensed therapists from performing conversion therapy on minors in Boca Raton, Florida, and Palm Beach County, Florida, and held that conversion therapy bans restricted speech, not conduct. The plaintiffs, licensed family therapists who provide counseling for minors who have “unwanted same-sex attraction or unwanted gender identity issues,” sought a preliminary injunction on the grounds that it violated the First Amendment. The district court denied the preliminary injunction.

Relying on NIFLA, the 11th Circuit held that local governments could not evade “the First Amendment’s ordinary presumption against content-based restrictions by saying that the plaintiff’s speech is actually conduct” and subsequently reversed the district court’s denial of the plaintiff’s request for a preliminary injunction. Id. at 861.

The 11th Circuit found the facts of the instant case similar to those in Pickup. Because NIFLA, according to the 11th Circuit, criticized Pickup’s rational standard of review, they must use strict scrutiny to assess the city and county ordinances. Id. at 867-868. Using strict scrutiny, the court struck down the bans, holding that despite the government’s legitimate interest in protecting children, it did not include the power to “protect the young from ideas or images that a legislative body thinks unsuitable for them.” 981 F.3d at 868 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)).

The dissenting opinion argued that the majority opinion moved the goalpost on evaluating the First Amendment. Furthermore, the dissent noted that even if strict scrutiny applied, the ordinances were narrowly tailored to further a compelling government interest and thus passed constitutional muster. 981 F.3d at 879-80.

LOOKING FORWARD

The plaintiff in Tingley has petitioned the 9th Circuit to rehear their case en banc. The 11th Circuit refused to rehear Otto en banc. It remains to be seen whether either case will be reviewed by the Supreme Court or consolidated. Nevertheless, because both Tingley and Otto apply NIFLA differently, it provides the Court a unique opportunity to clarify the law between the First Amendment and conversion therapy bans.