To understand the wrongness, ignorance, and just plain stupidity of the Eleventh Circuit’s decision to strike down a ban on so-called “conversion therapy,” consider this hypothetical:
A 15-year-old boy, “voluntarily” but actually forced by his parents, goes to see a therapist offering a “therapy” that has been condemned by the American Psychological Association and shown in numerous studies to be ineffective and indeed counterproductive. When the boy reveals he is considering suicide, the therapist says “You should just do it. If you’re feeling suicidal, that shows you are weak and undeserving to live. You’re pathetic.”
Should this be legal? Of course not. What a therapist says to a vulnerable client, especially an underage one, isn’t constitutionally protected “free speech.” It’s medical practice, like prescribing medication. And it’s malpractice to say something so dangerous and wrongheaded. Obviously.
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Yet that is exactly the convoluted logic that two Trump-appointed judges just applied in Otto v. City of Boca Raton, which ruled that it was the constitutional right of two therapists to practice “conversion therapy” (now known as ‘sexual orientation change efforts’ or SOCE) and thus unconstitutional for two Florida municipalities to ban it.
Unbelievably, the court described the bans not as protections of the mental and physical health of children but as “the government… choosing favored and disfavored messages,” as if a therapist guiding a vulnerable teenager were no different from a protester on the street. They categorically denied that therapy is not speech but “conduct,” which of course it is; therapy is a medical practice. They said that the bans “limit a category of people—therapists—from communicating a particular message,” again, as if the therapists were simply writing an op-ed in a newspaper.
This is all completely wrong. A therapist is not a speaker; she is a medical practitioner. What is said is not simply speech; it has the capacity to heal or harm.
But the kicker, the most ridiculous and, again, the simply stupidest mistake in the opinion is the court’s conclusion that the ban is unconstitutional because “whether therapy is prohibited depends only on the content of the words used in that therapy, and the ban on that content is because the government disagrees with it.”
Can you believe that a federal judge, albeit a Trump appointee (more on that in a moment) actually wrote such an idiotic sentence? No, Judge, the ban on that content is because it can do grievous harm to a minor. This isn’t political speech being censored because the government doesn’t like the content. It is therapy, a form of medical practice, being banned because it doesn’t work and because it hurts kids.
**As a matter of therapeutic practice, it would be laughable if it weren’t also tragic.
Whether you call it SOCE, conversion therapy, reparative therapy, aversion therapy, or Pray the Gay Away, the practice causes “significant risk of harm by subjecting individuals to forms of treatment which have not been scientifically validated and by undermining self-esteem when sexual orientation fails to change,” the American Psychiatric Association said in a 2013 statement. SOCE is now banned in 20 states, and those bans have been upheld by two other federal appeals courts.
As a matter of therapeutic practice, SOCE would be laughable if it weren’t also tragic.
Alan Chambers, the leader of what was once the largest SOCE operation in the world, Exodus International, shut down the organization in 2017, admitted SOCE didn’t work for “99.9%” of people subjected to it, and penned a remorseful farewell letter entitled “I am Sorry.” The largest Jewish equivalent, a racket called JONAH, was shut down after it lost a fraud case in court. The LDS/Mormon Church has formally abandoned SOCE. And numerous SOCE therapists and polemicists have been outed as “ex-ex-gay,” or as I prefer to call them, gay.
Still, the practice endures, since it offers a way out for conservative Christians unable to reconcile themselves to the fact that some people are simply gay rather than straight, just as some people have blue eyes rather than brown ones. If gayness is a trait, after all, it would seem unfair of God to also make it a sin.
Of course, one could instead recognize that sexual and gender diversity are part of the beauty of God’s creation, that the overwhelming majority of religious values (like “it is not good to be alone” and “love your neighbor as yourself”) support the inclusion of LGBTQ+ people, and that the handful of biblical texts misread as forbidding queer lives are, if one chooses not to simply ignore them, easy to read in affirming ways as well. And that is what the overwhelming majority of mainline Protestants, Catholics, and Jews have now done.
But Christian conservatives, having associated anything pro-LGBT with the great satanic liberal conspiracy to purge God from America and let women control their own bodies, are still disowning their kids and sending them to these quack therapists who make them hate themselves, or blame their fathers for not being affectionate, or wonder why Jesus still isn’t cleaning them of their horrible same-sex attraction despite all the prayer and fasting and aversion therapy and whatever else.
Which is really the only way we can understand this decision.
The two judges in the majority, Judges Britt Grant and Barbara Lagoa, are both Trump appointees who had anti-LGBTQ records before they were nominated, both members of the Federalist Society, and both personally vetted by the Federalist Society’s former leader, Leonard Leo, a religious ultra-conservative. (The Washington Post described Judge Lagoa’s husband, Paul Huck Jr., as “godfather of the Federalist Society in Miami.”) Like Justice Amy Coney Barrett, these judges were chosen for their conservative views, especially on religion. And both were said to be on Trump’s shortlist for the Supreme Court.
Now, it might be unfair to assume that Judges Grant and Lagoa based this decision on their personal religious or ideological views. But when an opinion is this transparently bad, its argument so obviously specious, one is pressed to find an alternative explanation.
Indeed, the whole construct of “the ban on that content is because the government disagrees with it” is pure Christian Right catnip. The government is banning views it disagrees with! (Darn those notorious anarchists in Boca Raton and Palm Beach.) The government is censoring Christianity! By banning a disproven therapy that harms kids, the government is stifling our religious liberty! The paranoid style in American politics, which we’ve seen most recently in the ravings of Rudy Giuliani, is here alive and well in a federal appellate court opinion.
Indeed, Judge Grant writes at one point, “If speaking to clients is not speech, the world is truly upside down. These ordinances sanction speech directly, not incidentally.” As noted already, that is obviously false—speaking to therapeutic clients is not simply “speech.” But it is also paranoiac in the extreme. Really, “the world is upside down” if therapeutic speech, like hate speech, “fighting words”, and shouting fire in a crowded theater, is understood to be part speech, part conduct? That remark is a tell.
The worst part of the entire opinion, however, is precisely that it is an outlier.
Since two other circuits have affirmed bans on conversion therapy, this new case, if not reversed by the entire appeals court sitting en banc, represents a “circuit split,” a primary reason for review by the Supreme Court—which is as packed and stacked as the Eleventh Circuit is. There, the Federalist Society is responsible for placing at least three sitting justices, and conservatives hold a 6-3 majority.
And there, Justice Alito recently gave a fiery speech alleging that religious people were being persecuted by COVID-19 regulations; Justice Gorsuch has argued that same-sex marriage needn’t be treated as equal to opposite-sex marriage; Justice Thomas has argued that it needs to be “fixed” by the court; and Justice Barrett is, well, I suppose we don’t actually know yet, but we have a pretty good guess.
In other words, this outrageous twisting of facts and hysteria by judges vetted by religious extremists may not be an outlier for long. On the contrary, it may well prefigure the Supreme Court’s ultimate decision. Because this is the world in which we live.
