Tampa Conversion Therapy Ban Invalidated On Preemption Grounds

In Vazzo v. City of Tampa, (MD FL, Oct. 4, 2019), a Florida federal district court invalidated a Tampa city ordinance barring licensed psychotherapists and counselors from practicing sexual orientation change efforts on minors. The court avoided the significant constitutional issues posed by the conversion therapy ban, and instead held:

The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline. Accordingly, the Court strikes the Ordinance under the implied preemption doctrine and grants the Plaintiffs’ motion for summary judgment.

(See prior related posting.) CBS12 reports on the decision.

Maryland's Conversion Therapy Ban Upheld

In Doyle v. Hogan, (D MD, Sept. 20, 2019), 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. The court said in part:

Although § 1-212.1 regulates speech by prohibiting the use of language employed in the process of conducting conversion therapy on minor clients, it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients].” ... Most importantly, § 1-212.1 does not prohibit practitioners from engaging in any form of personal expression; they remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.... 

The Baltimore Sun, reporting on the decision, says the decision will be appealed.

New York City To Make A Strategic Retreat On Its Broad Conversion Therapy Ban

As previously reported, in January the Christian advocacy organization Alliance Defending Freedom filed suit in a New York federal district court challenging New York City's broad ban on conversion therapy.  The city's ban, unlike bans in other jurisdictions, covers provision of conversion therapy to adults as well as minors. ADF filed the suit on behalf of an Orthodox Jewish physician, almost all of whose patients are Orthodox Jews. Now, according to yesterday's New York Times, New York City Council, with the support of LGBT activists, is about to repeal its ban.  The move is an attempt to prevent decisions from the Second Circuit or the U.S. Supreme Court that could give constitutional protection to conversion therapy. The gay speaker of City Council, Corey Johnson, was to introduce the repeal measure yesterday. Conversion therapy for minors will remain illegal under a New York state ban. (See prior posting.)

Michigan City Adopts Ban on Conversion Therapy For Minors

The City of East Lansing on Tuesday passed an ordinance banning provision to minors of conversion therapy relating to sexual orientation or gender identity.  The City Council vote of approval was 3-2, after amendments to the version as proposed were adopted.  The original proposal and a video of City Council meeting including discussion and amendments are available on the city's website. Fox47 News reports on the passage of the ordinance.

Court Says Conversion Therapy Provider Violated Injunction

In Ferguson v. JONAH, (NJ Super. Ct., June 10, 2019), a New Jersey state trial court judge held that the organization JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor, have violated a permanent injunction issued in 2015. JONAH provided "conversion therapy" that it falsely claimed could change an individual from gay to straight.  Instead of appealing the decision, defendants entered a confidential settlement agreement and agreed to the issuance of a permanent injunction requiring JONAH to cease operations and liquidate. (See prior posting.) The court held that defendants' new organization, JIFGA (Jewish Institute for Global Awareness), is a mere continuation of JONAH. NJ.com  reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Certiorari Denied In California Reparative Therapy Ban Challenge

The U.S.Supreme Court today denied review in Pickup v. Newsom, (Docket No. 18-1244, certiorari denied 5/20/2019). (Order List). In the case, the 9th Circuit Court of Appeals upheld the constitutionality of California's ban on state-licensed mental health providers engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Challenge to Florida City's Conversion Therapy Ban May Move Forward

In Vazzo v. City of Tampa, (MD FL, March 5, 2019), a Florida federal district court adopted a magistrate's recommendations (Jan. 30, 2019) concluding that plaintiffs had stated plausible free speech challenges, but dismissed plaintiffs' free exercise challenges, to Tampa, Florida's ban on providing conversion therapy to minors.  The court allowed plaintiffs to move ahead with claims that the ordinance is content-based, amounts to viewpoint discrimination and a prior restraint, and that it is unconstitutionally vague and overbroad.  It also allowed plaintiffs to move ahead with claims that the ordinance violates the right of their minor clients and constituents to receive information.  Plaintiffs also stated a plausible implied pre-emption claim under state law.

Court Refuses To Enjoin Florida Cities' Conversion Therapy Bans

In Otto v. City of Boca Raton, Florida, (SD FL, Feb. 13, 2019), a Florida federal district court refused to grant a preliminary injunction to prevent the cities of Boca Raton and Palm Beach, Florida from enforcing their ordinances that prohibit the use by medical professionals of sexual orientation change therapy on minors.  In a 60-page opinion, the court held that plaintiffs are unlikely to succeed on their free speech, prior restraint, vagueness or ultra vires claims.

New York City's Conversion Therapy Ban For Adults Challenged

Suit was filed this week in a New York federal district court challenging New York City's ban on conversion therapy.  New York City's law, unlike almost all other bans, applies to sexual orientation and gender identity change counseling for adults as well as minors.  The complaint (full text) in Schwartz v. City of New York, (ED NY, filed 1/23/2019), contends that NYC Law Number 2018/22-- which the complaint calls the "Counseling Censorship Law"-- violates the free speech and free exercise rights of both psychotherapist David Schwartz and his patients.  It also claims that the law is void for vagueness.  Dr. Schwartz in an Orthodox Jew who identifies with the Lubavitcher movement, and virtually all of his patients are Orthodox Jews.  The complaint alleges in part:

Dr. Schwartz’s patients, as well as their views about morality, human nature, and the possibility of change, are often deeply informed by their religious beliefs. These individuals believe that it is more important to live consistently with their religious values than to conform their lives to their subjective feelings. Because Dr. Schwartz shares that faith and those convictions, he is able to provide psychotherapy that understands, respects, and assists these patients towards their goals.

ADF issued a press release announcing the filing of the lawsuit.

Conversion Therapy Ban Challenged In Maryland, Enacted In New York

The Baltimore Sun reports that a lawsuit was filed in Maryland federal district court on Friday challenging Maryland's ban on conversion therapy for minors.  Plaintiff Christopher Doyle contends that the ban violates his free speech and free exercise rights, as well as his clients' right "to prioritize their religious and moral values above unwanted same-sex sexual attractions, behaviors, or identities."

Meanwhile, on Jan. 15, the New York state legislature gave final passage to A00576 (full text) which prohibits  mental health  professionals  from  engaging  in  sexual  orientation  change efforts with patients under the age of eighteen. NBC News says that Gov. Andrew Cuomo is expected to promptly sign the bill.

Suit Challenges Local Bans On Conversion Therapy For Minors

A suit was filed this week in a Florida federal district court challenging the constitutionality of ordinances enacted by the city of Boca Raton and by Palm Beach county which prohibit licensed counselors from practicing conversion therapy on minors.  The complaint (full text) in Otto v. City of Boca Raton, Florida, (SD FL, filed 6/13/2018), filed on behalf of counselors and their patients, contends that the ordinances violate speech and religious exercise rights under the federal and state constitutions, as well as state statutory protection of religious exercise and other state statutory provisions. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Suit Challenges City's Reparative Therapy Ban

A suit was filed yesterday in Florida federal district court challenging the constitutionality of a Tampa ordinance that prohibits licensed counselors from practicing conversion therapy efforts on minors. Conversion therapy is defined in the ordinance as "efforts to change behaviors. gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex." The complaint (full text) in Vazzo v. City of Tampa, Florida, (MD FL, filed 12/4/2017), contends that the ordinance violates plaintiffs' free speech and free exercise rights as well as rights under various Florida statutes.  Among other things, it argues that the law violates the First Amendment rights of plaintiffs' clients to receive information.  Liberty Counsel issued a press release announcing the filing of the lawsuit.

Cert. Denied In Challenge To California Sexual Orientation Therapy Ban

The U.S. Supreme Court yesterday denied review in Welch v. Brown (Docket No., 16-845, cert. denied 5/1/2017). (Order List.) In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (9th Circuit's amended opinion dated Oct. 3, 2016). (SCOTUSblog case page.)

Illinois Conversion Therapy Ban Does Not Apply To Religious Pastoral Counseling

In Pastors Protecting Youth v. Madigan, (ND IL, Feb. 15, 2017), an Illinois federal district court held that Illinois' Youth Mental Health Protection Act restricting conversion therapy does not apply to religious pastoral counseling.  The Act bars mental health providers from offering conversion therapy to minors, and prohibits anyone from deceptively offering conversion therapy in trade or commerce. The court concluded that private religious counseling is not "trade or commerce". The Act was intended to apply only to mental health professionals or to those who deceptively advertise conversion therapy for commercial purposes. Christian News reports on the decision.

Ohio City Enacts Broad Conversion Therapy Ban

According to the Toledo Blade, Toledo, Ohio City Council on Tuesday passed a broad ban on conversion therapy-- therapy aimed at changing a person's sexual orientation or gender identity.  Unlike most bans elsewhere, Toledo's ordinance is not limited to protecting minors. The new law provides:

no mental health provider shall engage in sexual orientation or gender identity change efforts with any person.

The ordinance provides for a fine of $250 for each violation. According to Toledo City Paper, the new ordinance passed City Council by a vote of 12-0.

Cert. Petition Filed In California Repairative Therapy Ban

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Welch v. Brown, cert. filed 1/3/2017).  In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (See prior posting.) Pacific Justice Institute issued a press release announcing the filing of the petition for review.

9th Circuit: California Reparative Therapy Ban OK Under 1st Amendment Religion Clauses

In Welch v. Brown, (9th Cir., Aug. 23, 2016), the U.S. 9th Circuit Court of Appeals rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing “sexual orientation change efforts” for patients under 18.  The court concluded that the law does not excessively entangle the state with religion because it only applies within the confines of the counselor-client relationship. The state conceded that the law does not apply to clergy in their roles as pastoral counselors providing religious counseling to congregants. The court also rejected the contention that the law has the primary effect of inhibiting religion, saying in part:

although the scientific evidence considered by the legislature noted that some persons seek SOCE for religious reasons, the documents also stressed that persons seek SOCE for many secular reasons.

[Thanks to How Appealing for the lead.]

Pastors Sue Over Illinois Ban on Conversion Therapy

A group  of pastors filed suit last week in Illinois federal district court challenging the application to them of a provision in the Illinois ban on sexual orientation change therapy.  At issue is Sec. 25 of the Act that provides no person in the conduct of any trade or commerce may offer conversion therapy services by representing that homosexuality is a mental disease, disorder, or illness. (See prior posting.) The complaint (full text) in Pastors Protecting Youth v. Madigan,  (ND IL, filed 8/11/2016) seeks a declaratory judgment that pastors fall outside the act because they are not engaged in any "trade or commerce," as well as a declaration that the provision violates plaintiffs' free speech, free exercise and due process rights and the rights of those they counsel. The complaint explains the pastors' position in part as follows:

32. While plaintiffs speak, teach and counsel others that all types of sin are a disorder and a product of the Fall of mankind, the Act only prohibits the pastors from representing that homosexual conduct is a sin or disorder.  The Act, therefore, dictates which parts of the Bible pastors may or may not use to counsel their counselees.

33. Because the plaintiffs adhere to traditional Christian theology which teaches that homosexual conduct is contrary to the will and intended order of God, Plaintiffs also believe that homosexual conduct, like any other sin, can be overcome by the power of Jesus Christ.

 Washington Post reports on the lawsuit.

9th Circuit Hears Challenge To Ban On Conversion Therapy

The U.S. 9th Circuit Court of Appeals yesterday heard oral argument (video of oral arguments) in Welch v. Brown.  In the case, a California federal district court rejected Free Exercise and Establishment Clause challenges to California's ban on mental health professionals providing "sexual orientation change efforts" (SOCE) for minors. (See prior posting.).  SFGate reports on yesterday's oral arguments.

Cert. Denied In Challenge To N.J. Conversion Therapy Ban

The U.S. Supreme Court yesterday denied certiorari in Doe v. Christie, (Docket No. 15-195, cert. denied 2/20/2016) (Order List.)  In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey statute that prohibits mental health professionals from engaging in "sexual orientation change efforts" with minors. (See prior posting.) Liberty Counsel issued a press release on the Court's action.