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Today, in Otto v. Boca Raton, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit concluded that local bans on "sexual orientation change efforts (SOCE)" (aka "conversion therapy") are unconstitutional under the First Amendment. The laws in question, which had been adopted by Boca Raton and Palm Beach County, Florida, prohibited (in the words of the latter ordinance):
the practice of seeking to change an individual's sexual orientation or gender identity, including but not limited to efforts to change behaviors, gender identity, or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.
The ordinances exempted clergy and "counseling that provides support and assistance to a person undergoing gender transition."
Splitting 2-1, the Eleventh Circuit panel concluded these laws were content- and viewpoint-based restrictions on speech that could not satisfy the requirements of strict scrutiny. The panel majority also rejected the localities' arguments that the laws were permissible regulations of "professional speech." (Note that the restrictions at issue were not imposed by the state licensing board, but by individual localities.]
Boca Raton and Palm Beach County prohibit therapists from engaging in counseling or any therapy with a goal of changing a minor's sexual orientation, reducing a minor's sexual or romantic attractions (at least to others of the same gender or sex), or changing a minor's gender identity or expression—though support and assistance to a person undergoing gender transition is specifically permitted. These restrictions apply even to purely speech-based therapy. Two therapists argue that the ordinances infringe on their constitutional right to speak freely with clients. They appeal the district court's denial of their motion for a preliminary injunction. 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.
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