Showing posts with label Conversion therapy. Show all posts
Showing posts with label Conversion therapy. Show all posts

Monday, December 11, 2023

Certiorari Denied in Challenge to Conversion Therapy Ban

Today by a vote of 6-3, the U.S. Supreme Court denied review in Tingley v. Ferguson, (Docket No. 22-942, certiorari denied 12/11/2023). In the case the U.S. 9th Circuit Court of Appeals rejected free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. (See prior posting.) Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:

Under SB 5722, licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities. Expressing any other message is forbidden—even if the counselor’s clients ask for help to accept their biological sex. That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.

The Ninth Circuit attempted to sidestep this framework by concluding that counseling is unprotected by the First Amendment because States have traditionally regulated the practice of medicine....

This case is not the first instance of the Ninth Circuit restricting medical professionals’ First Amendment rights, and without the Court’s review, I doubt it will be the last.

Justice Alito filed a brief opinion dissenting from the denial of review. Justice Kavanaugh also indicated that he would grant the petition for certiorari.

Thursday, June 29, 2023

Michigan Legislature Bans Conversion Therapy-- 22nd State To Do So

The Michigan legislature yesterday gave final passage to HB 4616 (full text) and HB 4617 (full text), bills which together prohibit mental health professionals from engaging in conversion therapy with a minor. HB4617 contains an elaborate definition of "conversion therapy" which explicitly excludes, among other things, "counseling that provides acceptance, support, or understanding of an individual or facilitates an individual's coping, social support, or identity exploration and development ...  as long as the counseling does not seek to change an individual's sexual orientation or gender identity."  When signed by the Governor, Michigan will become the 22nd state (plus the District of Columbia) to ban conversion therapy for those under 18. M Live reports on the new legislation.

Monday, April 17, 2023

Supreme Court Review Sought in Challenge to Conversion Therapy Ban

On March 27, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tingley v. Ferguson. In the case, the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel's decision rejecting free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. Conversion therapy encourages change in sexual orientation or gender identity. (See prior posting). SCOTUSblog  reports on the petition for review.

Tuesday, January 24, 2023

9th Circuit Denies En Banc Review of Conversion Therapy Ban

In Tingley v. Ferguson, (9th Cir., Jan. 23, 2023), the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel's decision rejecting free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. Judge O’Scannlain, joined by Judges Ikuta, R. Nelson and VanDyke, filed an opinion dissenting from the denial of en banc review, saying in pat:

Our decision in Pickup [v. Brown] is, I suggest, no longer viable. While Pickup may have seen no distinction between “treatments … implemented through speech” and those implemented “through scalpel,” ... the First Amendment recognizes the obvious difference, and protects therapeutic speech in a way it does not protect physical medical procedures....

[T]he panel majority here entirely ignored the First Amendment’s special solicitude for religious speech. Instead, it commended Washington for concluding “that health care providers should not be able to treat a child by such means as telling him that he is ‘the abomination we had heard about in Sunday school’.”...

Judge Bumatay also filed an opinion dissenting from the denial of review, saying in part:

[W]e also cannot ignore that conversion therapy is often grounded in religious faith. According to plaintiff Brian Tingley, a therapist licensed by the State of Washington, his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings....

Because the speech underpinning conversion therapy is overwhelmingly—if not exclusively—religious, we should have granted Tingley’s petition for en banc review to evaluate his Free Speech claim under a more exacting standard. It may well be the case that, even under heightened review, Washington’s interest in protecting minors would overcome Tingley’s Free Speech challenge. But our court plainly errs by subjecting the Washington law to mere rational-basis scrutiny. 

Wednesday, December 21, 2022

Court Upholds Conversion Therapy Ban

In Chiles v. Salazar, (D CO, Dec. 19, 2022), a Colorado federal district court rejected constitutional challenges to Colorado's ban on mental health professionals engaging in conversion therapy for minors who identify as gay, lesbian, bisexual, transgender, or gender non-conforming. In a suit brought by a licensed counselor, the court found no violation of plaintiff's free speech rights because the Minor Therapy Conversion Law regulates professional conduct rather than speech. Any speech that is affected is incidental to the professional conduct. The court also found no violation of plaintiff's free exercise rights, saying in part:

According to Ms. Chiles, the Minor Therapy Conversion Law is not neutral because it was “well-known” at the time the Colorado General Assembly enacted the Minor Therapy Conversion Law that conversion therapy was primarily sought for religious reasons.... Therefore, Ms. Chiles’ argument goes, the Minor Therapy Conversion Law impermissibly burdens practitioners who hold particular religious beliefs.... The Court disagrees. The Minor Therapy Conversion Law does not “restrict [therapeutic] practices because of their religious nature.”... [T]he Minor Therapy Conversion Law targets specific “modes of therapy” due to their harmful nature— regardless of the practitioner’s personal religious beliefs or affiliations.... [T]he Minor Therapy Conversion law targets these therapeutic modalities because conversion therapy is ineffective and has the potential to “increase [minors’] isolation, self-hatred, internalized stigma, depression, anxiety, and suicidality”....

Friday, October 14, 2022

Christian Counselor Challenges City's Conversion Therapy Ban

Suit was filed yesterday in a Wisconsin federal district court challenging the city of La Crosse's ordinance that prohibits medical and mental health professionals from engaging in conversion therapy with anyone under 18 years of age. The complaint (full text) in Buchman v. City of La Crosse, (WD WI, filed 10/13/2022), alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression or behaviors violates free speech and free exercise rights of plaintiff, a licensed counselor who approaches counseling through "a Christ-centered lens". It also alleges that the ban is unconstitutionally vague and violates the Wisconsin Constitution's protection of the right of conscience. The complaint says in part:

The Ordinance thus interferes with Ms. Buchman’s ability to decide matters of faith and doctrine for herself and to then infuse her work with these religious beliefs. It attempts to dictate and influence Ms. Buchman’s resolution of those matters. It forces her to choose between her faith and government penalty.

Wisconsin Spotlight reports on the lawsuit.

Wednesday, September 07, 2022

9th Circuit Upholds Washington's Ban On Conversion Therapy

In Tingley v. Ferguson, (9th Cir., Sept. 6, 2022), the U.S. 9th Circuit Court of Appeals rejected free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors.  The court said in part:

Washington’s licensing scheme for health care providers, which disciplines them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel....

SB 5722 is a neutral law targeted at preventing the harms associated with conversion therapy, and not at the religious exercise of those who wish to practice this type of therapy on minors.

 Judge Bennett concurred in part.  Courthouse News Service reported on the decision.

Thursday, July 21, 2022

11th Circuit Denies En Banc Review In Conversion Therapy Case

In Otto v. City of Boca Raton, Florida, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals, by a vote of 7-4,, denied an en banc rehearing in a case in which a panel decision of the court struck down a conversion therapy ban.  (See prior posting). Concurring and dissenting opinions spanning 110 pages accompanied the brief order denying review. Judge Grant, joined by Judges Branch and Lagoa filed an opinion concurring in the denial, saying in part:

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. But the First Amendment applies even to—especially to—speech that is widely unpopular....

Today’s dissenters decry the result of the panel decision—namely, that speech they consider harmful is (or may be) constitutionally protected. But to reach their preferred outcomes, they ask us to ignore settled First Amendment law

Judge Jordan joined by Judge Wilson, and joined in part by Judges Rosenbaum and Pryor, said in part:

[T]he panel majority in this preliminary injunction appeal ignored the clear error standard of review—never acknowledging or applying it —and substituted its own factual findings for those of the district court on important issues.

Judge Rosenbaum joined by Judge Pryor filed a dissenting opinion, saying in part

By incorrectly labeling talk therapy mental-healthcare treatments as mere “conversation” and “not medical at all,” the panel opinion necessarily subjects to First Amendment strict scrutiny all government regulations that require licensed mental-healthcare professionals to comply with the governing substantive standard of care in administering talk therapy. And that scrutiny rings the death knell for any such regulation.

Thursday, June 16, 2022

President Issues Executive Order On Equality For LGBTQI+ Individuals

President Biden yesterday issued an Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals. (Full text). The Order sets out a long list of initiatives to be undertaken by various Cabinet departments and federal agencies. These include using federal authority to counter state laws which limit access to medically necessary care, reducing the risk of exposure to conversion therapy, and strengthening non-discrimination protections.  The Order also focuses on support for LGBTQI+ individuals in schools, housing programs, family counseling and health care.

Wednesday, September 01, 2021

Washington Conversion Therapy Ban Upheld

In Tingley v. Ferguson, (WD WA, Aug. 30, 2021), a Washington federal district court dismissed First Amendment challenges by a family therapist to a Washington state statute that prohibits licensed counselors in treating minors from engaging in "conversion therapy" aimed at changing sexual orientation or gender identity. The court held that performing conversion therapy is "conduct", not speech. According to the court, the law still allows therapists to discuss the option of conversion therapy by someone else-- including someone within the exception for practitioners operating under the auspices of religious organizations. The court also rejected plaintiff's religious free exercise argument, saying in part:

[T]he object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.... Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.

Monday, July 19, 2021

Minnesota Governor Orders Agencies To Combat Conversion Therapy

On July 15, Minnesota Governor Tim Walz issued Executive Order 21-25 (full text) providing:

All state agencies must pursue opportunities and coordinate with each other to protect Minnesotans, particularly minors and vulnerable adults, from conversion therapy to the fullest extent of their authority.

The Executive Order then details administrative actions that are to be taken by various state departments and agencies to prevent mental health professionals from working to change individuals' sexual orientation or gender identity.  AP reports on the governor's action. [Thanks to Scott Mange for the lead.]

Thursday, June 17, 2021

4th Circuit: Governor and Attorney General Were Wrong Defendants In Challenge To Maryland Conversion Therapy Ban

In Doyle v. Hogan, (4th Cir., June 15, 2021), plaintiffs raised free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. The district court had held that the ban did not violate free speech or free exercise protections. (See prior posting.) The U.S. 4th Circuit Court of Appeals held that it could not reach the "interesting First Amendment issues" that are raised because defendants-- the Governor and Attorney General of Maryland-- have 11th Amendment immunity from suit. Neither defendant has the necessary connection to enforcing the statute required to invoke the immunity exception set out in Ex parte Young. So the court vacated the district court's 1st Amendment rulings and remanded the case for the district court to decide whether it will permit plaintiffs to file an amended complaint. In a press release, Liberty Counsel announced that it will seek to file an amended complaint  to list the State Board of Professional Counselors and Therapists as a defendant.

Wednesday, June 16, 2021

South Carolina City Bans Conversion Therapy for Minors

According to The State, yesterday the Columbia, South Carolina City Council, by a vote of 4-3, passed a ban on licensed professional therapists offering conversion therapy for minors. Violations will result in a $500 civil fine. The paper reports:

A number of people spoke on the conversion therapy ban during Tuesday’s [City Council] meeting. Eleven of the 14 speakers were against the measure, with several saying they believed it infringed on religious liberties and First Amendment rights. Several of the speakers against the ordinance were connected to Columbia International University, a Christian college in North Columbia.

[Councilman Howard] Duvall said the ordinance would not interfere with conversations between a pastor and a resident.....  "It is clearly aimed at licensed practitioners. Most of the pastors in South Carolina are not licensed practitioners licensed by the state of South Carolina."

By a vote of 6-1, Council also passed a resolution supporting statewide legislation outlawing conversion therapy for minors.

Tuesday, June 15, 2021

Michigan Governor Bans Use Of State Funds For Conversion Theapy

Yesterday, Michigan Governor Gretchen Whitmer issued an Executive Directive (full text) directing the Michigan Department of Health and Human Services to take action "to prohibit the use of state and federal funds for the practice of conversion therapy on minors." In the Executive Directive, Whitmer said in part:

The assumptions underlying the practice of conversion therapy are not supported by medicine or science. Being LGBTQ+ is not a disorder, disease, or deficiency. Treating it as such through conversion therapy is not only ineffectual, but may cause significant long-term harm, including anxiety, depression, internalized homophobia, lowered self-esteem, and self-blame, as well as alienation, loneliness, social isolation, loss of social supports, and suicidal behaviors.

It also called on other state agencies to explore what they can do to protect minors from conversion therapy. MLive reports on the Governor's action.

Friday, March 12, 2021

Communications Decency Act Allows Video Hosting Site To Ban Conversion Therapy Promoter

In Domen v. Vimeo, Inc., (2d Cir., March 11, 2021), the U.S. 2nd Circuit Court of Appeals held that Section 230 of the federal  Communications Decency Act immunizes the video sharing platform Vimeo from a lawsuit alleging religious and sexual orientation discrimination under California law. The suit was filed by Church United and its founder after Vimeo deleted their account because plaintiffs had uploaded videos that promote sexual orientation change therapy. The court said in part:

A broad provision [in Section 230], subsection (c)(2) immunizes interactive computer service providers from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 12 U.S.C § 230(c)(2). Notably, the provision explicitly provides protection for restricting access to content that providers “consider[] . . . objectionable,” ... granting significant subjective discretion.... Therefore, Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit.

Bloomberg Equality reports on the decision.

Saturday, November 21, 2020

11th Circuit Strikes Down Conversion Therapy Ban

 In Otto v. City of Boca Raton, Florida, (11th Cir., Nov. 20, 2020), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, struck down city and county ordinances in Florida that ban therapists from engaging in counseling or therapy aimed at changing a minor’s sexual orientation, reducing a minor’s sexual or romantic attractions, or changing a minor’s gender identity or expression. Support to minors undergoing gender transition, however is permitted. The majority said in part:

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...

This decision allows speech that many find concerning—even dangerous. But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful.... People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.

Judge Martin, dissenting, said in part:

The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech. Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist.... I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility.

Palm Beach Post reports on the decision.

Tuesday, October 27, 2020

4th Circuit Hears Oral Arguments In Conversion Therapy Ban Challenge

Yesterday the U.S. 4th Circuit Court of Appeals heard oral arguments in Doyle v. Hogan. (Audio of full oral arguments.) In the case, a Maryland federal district court dismissed free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. (See prior posting.) Courthouse News Service reported on yesterday's proceedings, saying that questions of standing to sue dominated the arguments.

Thursday, March 05, 2020

Virginia Becomes 20th State To Ban Conversion Therapy

Virginia Governor Ralph Northam this week signed into law House Bill 386 (full text) which bans licensed health professionals from engaging in conversion therapy with anyone under 18 years of age. New York Times reports that this makes Virginia the twentieth state to ban these attempts to change sexual orientation of gender identity. It is the first southern state to do so.

Thursday, January 23, 2020

Utah Administrative Rule Banning Conversion Therapy Becomes Effective

As reported by NPR, in Utah a new rule under the Mental Health Professional Practice Act (full text of rule [scroll to pp. 61-66]) bans mental health professionals from providing conversion therapy to minors. The rule defines conversion therapy as
any practice or treatment that seeks to change the sexual orientation or gender identity of a patient or client, including mental health therapy that seeks to change, eliminate, or reduce behaviors, expressions, attractions, or feelings related to a patient or client's sexual orientation or gender identity.
The new rule became effective yesterday.  It excludes from coverage:
(i) a clergy member or religious counselor who is acting substantially in a pastoral or religious capacity and not in the capacity of a mental health therapist; or
(ii) a parent or grandparent who is a mental health therapist and who is acting substantially in the capacity of a parent or grandparent and not in the capacity of a mental health therapist.
KUER traces the evolution of the ban in Utah. After the original version of the ban failed to pass the state legislature last year, Utah Gov. Gary Herbert negotiated a version with the above exclusions that gained the support of the Church of Jesus Christ of Latter Day Saints. While Utah becomes the 19th state to pass this sort of ban, it is the first with a Republican governor and Republican controlled legislature to do so. [Thanks to Scott Mange for the lead.]

Friday, January 17, 2020

Online Site Has Immunity In Banning Conversion Therapy Videos

In Domen v. Vimeo, Inc., (SD NY, Jan. 15, 2020), a New York federal magistrate judge dismissed a suit by James Domen, a pastor who is the founder of Church United, a non-profit organization devoted to preserving the rights of pastors to exercise their faith without unlawful infringement.  Domen sued claiming religious and sexual orientation discrimination after Vimeo, an online video-sharing website, closed his account when he refused to remove five videos promoting sexual orientation change efforts.  The court held that Vimeo had both publisher immunity and immunity to police content under Section 230 of the Communications Decency Act, and that Section 230 pre-empts state civil rights laws. It also held that Domen had not shown the required discriminatory intent under either California or New York's anti-discrimination laws, and had not stated a free speech claim under California's constitution.  Courthouse News Service reports on the decision.