Trump Judges Say Free Speech Rights Includes Shaming LGBTQ Kids

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Analysis Law and Policy

Trump Judges Say Free Speech Rights Includes Shaming LGBTQ Kids

Lisa Needham

The U.S. Supreme Court has stayed out of the conversion therapy fight so far but this case could change that.

CORRECTION: An earlier version of this article contained an error regarding the procedural posture of the lawsuit. The 11th Circuit ruling was not on the merits, but rather on the denial of a preliminary injunction.

Last Friday, the 11th Circuit Court of Appeals decided to permit therapists to practice conversion therapy on children. It’s a stark reminder that right-wing judges have no reservations about harming LGBTQ youth. 

Back in 2017, Florida’s Palm Beach County and the city of Boca Raton both passed ordinances banning conversion therapy on minors. Conversion therapy is an anti-scientific, homophobic, and transphobic attempt to undermine the identity of LGBTQ people, often minors. It’s a practice that is both wildly harmful and almost completely unsuccessful. In response to the ban, two therapists who practice conversion therapy in Florida filed a lawsuit claiming that restricting them from this dangerous practice violated their free speech rights. 

Though a lower court upheld the ordinances—refusing to grant a preliminary injunction blocking them—two judges on a three-judge panel of the 11th Circuit overturned that decision last week, agreeing that therapists’ free speech rights are harmed if they can’t inflict lasting pain on LGBTQ youth by treating their sexual and gender identities as a disorder. Judge Beverly Martin, an Obama appointee, dissented. While a decision on the merits is still yet to come, in the likely event that the 11th Circuit issues a merits-based ruling that conversion therapy bans violate the First Amendment, any similar ordinances in states that sit in the 11th Circuit—Alabama, Georgia, and Florida—would also be void. 

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The two judges who voted to overturn the ordinances banning conversion therapy, Britt Grant and Barbara Lagoa, are Trump appointees, and they’ve each made Trump’s short list for the U.S. Supreme Court (in 2017 and 2020, respectively). The conversion therapy decision, authored by Grant and signed onto by Lagoa, is a depressing trip through all the right-wing tropes about free speech, in which the right of conservative Christians to harm and discriminate will always surpass the rights of LGBTQ people. 

Make no mistake. Conversion therapy is a literal horror show. It shames and stigmatizes kids for their feelings and their identities. Every major medical and mental health organization opposes it, as it can lead to increased attempts at suicide and higher levels of anxiety, depression, and drug use. But Grant’s opinion dismissed all that, saying that the studies showing harm are “assertions rather than evidence.” Grant also grumbled that there just isn’t enough “rigorous recent research.” 

As Martin’s dissent pointed out, it’s impossible for additional research to be done in this instance. Organizations like the American Psychological Association have already explained that conducting studies where you shame children for their sexual or gender identity and see how they turn out is not an ethical thing to do. There aren’t more studies precisely because children can’t consent to such a thing. 

But Grant’s opposition to the clear and unanimous views of and research by experts best-suited to determine what harms children is in keeping with the anti-science mindset of modern conservative judges, who don’t believe in climate change or reproductive health science.

Recognizing that “local governments here have a strong interest in protecting

children,” Grant nevertheless sings the praises of unfettered speech, arguing that local government’s child-protection interest “does not include a free-floating power to restrict the ideas to which children may be exposed.” 

Of course, conservative Christians are generally more than happy to restrict what types of speech and content children are exposed to. Conservative activists in Iowa tried to get the public library to ban LGBTQ books for children and young adults. Conservative Christian parents attempted to do the same in elementary schools in Loudoun County, Virginia. But when it comes to forcing children to listen to therapists telling them they’re broken and wrong and bad for their same-sex attraction or for being trans, conservatives like Grant are all in. 

It’s depressingly similar to the way conservatives feel about free speech and abortion. In that instance, they have no problem forcing a physician to say and do things they might oppose, like conducting an unnecessary ultrasound and reading state-mandated language about the images. 

Grant’s opinion smugly declares that while the government can’t regulate this sort of speech, children harmed by it could perhaps sue therapists for malpractice, a ludicrous suggestion that ignores the fact that children will rarely have the resources to file such a lawsuit.

In their lawsuit, the two therapists, Robert Otto and Julie Hamilton, argued that banning conversion therapy takes away the rights of their clients and all minors to “prioritize their religious and moral values above unwanted same-sex sexual attractions, behaviors, or identities.” 

Except the ordinances do no such thing. As Martin noted in her dissent, the laws don’t stop therapists from recommending conversion therapy, discussing that therapy with a minor, speaking publicly in favor of conversion therapy, or practicing conversion therapy on adults. They can also practice conversion therapy outside of the city or county limits. And non-therapists, like unlicensed religious leaders, can practice conversion therapy to their heart’s content. 

There are still plenty of avenues for this hate speech. The ordinances simply blocked efforts to force conversion therapy onto LGBTQ youth who, by definition, can’t fully consent to it since they are minors. But that didn’t matter to Grant and Lagoa.

And given the nature of Grant and Lagoa’s arguments—and the fact that the 11th Circuit is lousy with Trump judges—once the lower court makes a ruling on the merits of the case, it is likely that the 11th Circuit will rule that conversion therapy bans violate the First Amendment, irrespective of the lower court’s ruling. And that means the 11th Circuit is on the verge of breaking with other Circuit courts that have struck down conversion therapy laws.

The Third Circuit upheld New Jersey’s law prohibiting conversion therapy, and the Ninth Circuit affirmed similar laws in California. The Supreme Court has repeatedly refused to hear challenges to these types of laws. Still, with a 6-3 conservative supermajority on the Court now, there may be an appetite to take a case and apply the 11th Circuit’s absurd anti-LGBTQ “free speech” paradigm nationwide. In this worldview, harm to children doesn’t matter—only the freedom to push conservative views onto unwilling listeners.

Topics and Tags:

Law and Policy, LGBT rights, LGBTQ