In Otto v. Boca Raton (Nov. 20, 2020), the Eleventh Circuit (which has jurisdiction over Florida, Georgia, and Alabama) became the first federal appellate court to rule unconstitutional one of the “anti-conversion” acts inundating the country. In doing so, it split with the Third and Ninth Circuits, which have upheld similar conversion therapy bans. This circuit split increases the likelihood that the U.S. Supreme Court will agree to take this case.
Through an organized effort over the last few years, a model bill has been pressed in cities, counties, and states across the country as the latest legislation to champion the sexual orientation and transgender movement. The model bill, now passed by multiple states and other governments, prohibits licensed counselors from telling minors that homosexual or transgender inclinations and actions are disordered or even ill advised, on pain of losing their licenses to practice. This, of course, muzzles psychologists and parents seeking help for their children suffering from gender confusion.
The Eleventh Circuit in Otto had before it the model act as passed by a Florida city and county. The 2-1 majority determined that the conversion therapy ban stifled the free speech of psychologists because it discriminated on content and viewpoint (counseling to affirm biological gender was banned, but counseling to affirm adopting another gender was acceptable). Moreover, it rejected the assertion that there was a compelling interest in the health of the minors that justified this discrimination.
The majority was not swayed by the supposedly “monolithic” professional opinion recited in the act’s findings that conversion therapy is harmful to children with sexual orientation and gender dysphoria issues. The dissent was willing to take these findings at face value and override the free speech rights of the therapists who wished to counsel minors in accord with their religious beliefs and the minors’ own desires to sublimate their sexual feelings. The majority, on the other hand, noted that even the study on which the findings were principally based noted the lack of any reliable data showing that conversion therapies harmed minors. It found that freedom of speech is not trumped by majority rule or whatever the current “understanding” of best practice is and that such understandings often change. As an example, it noted that homosexuality for years was regarded as psychologically disordered by one of the very associations now pressing for anti-conversion acts.
The Otto majority was even more right than it perhaps knew. The “findings” pressed by these professional associations are basically that the tenfold higher incidence of suicide and suicide ideation in minors is due to social disapproval. But this does not explain why suicide rates continue to be so high for gender dysphoric minors in countries that have long embraced transgenderism; why, until the recent push to “affirm” and lock in minors experiencing gender dysphoria, almost all minors grew out of it without adverse consequences; or how many who once practiced a homosexual lifestyle have successfully left it. But those pushing anti-conversion acts take as an article of faith that homosexuality and gender transformation are “normal” and “normative” and even “immutable” experiences. For them, no matter the evidence or logic, any adverse consequences of these lifestyles must be attributed to those who disagree that individuals are “free” to change their birth gender, and, thus, they must be silenced for the good of the cause and the community.
We can be thankful that the majority of this Eleventh Circuit panel saw through this smoke and vindicated the free speech rights of the counselors.