Civil Rights Disaster: Judges Axe Conversion Therapy Ban

Elections have consequences, a truism LGBTQ people have learned with shocking regularity since Donald Trump took office. Even though he’s been voted out, toxic effects will not disappear. Yesterday, a federal appeals court struck down two Florida bans on licensed counselors offering “conversion therapy” to children. Leading civil rights advocates call the decision a disaster, predicting the Supreme Court will uphold it, dealing a death blow to the fight against a dangerous and discredited practice while further entrenching the toxic legal notion that religion trumps civil rights for LGBTQ people.

Freud promoted then changed his mind about conversion therapy

The notion that same-sex attraction is a treatable mental disorder got its start with Sigmund and Anna Freud a century ago, but after years of clinical experience, Sigmund began advising parents that changing same-sex attraction in their children was unlikely or impossible.

Anna disagreed with her father and in 1956 asked people not to share his letters and quotes on the subject. Conversion therapy soared in popularity throughout the 1950s and 60s, a trend led by U.S. psychoanalyst Edmund Bergler.

But by 1957, as Tyler Albertario details in a story on Medium, mental health professionals began rigorous studies that concluded homosexuality was not a mental illness at all. In 1973, the American Psychiatric Association’s Board of Trustees removed homosexuality from the Diagnostic and Statistical Manual (DSM).

The 11th circuit did not rule religious ministers and counselors have the right to practice conversion therapy, they ruled licensed professionals do — for religious, not medical, reasons.

Professionals mostly stopped conversion therapy

By the late 1980s, most psychiatrists and psychologists had stopped offering therapy to change sexual orientation, noting clinical evidence shows it to be ineffective and harmful, markedly increasing the incidence of severe mental health outcomes like depression and suicide without changing sexual attraction.

In 2000, the American Psychiatric Association, recognizing the dangers, adopted an official position statement opposing conversion therapy, declaring it unethical for member physicians to practice.

The American Psychological Association came to the same conclusion, advising members that based on extensive clinical evidence, conversion therapy should be considered unethical and inconsistent with professional practices.

In the professional counseling world, conversion therapy became very rare, but starting in the 1990s with Narth and Exodus International, Christian organizations led mostly by “ex-gay” men began promoting it again, claiming staggeringly high success rates.

Conversion therapy rebounded in popularity

Then one by one, all of those organizations closed their doors, founders admitting they were entirely unable to change sexual attraction, many apologizing to gay people for having caused great harm.

Today, conversion therapy remains a significant problem

The Society for Psychotherapy reports that a non-trivial number of U.S.-based counseling professionals, led by a growing number of lightly educated/regulated family and marriage counselors, continue to practice conversion therapy despite its well documented dangers and lack of efficacy. Most of these counselors are not bound by the same ethical constraints as clinical psychiatrists and psychologists.

To address the problem, twenty states plus the District of Columbia have passed laws to ban conversion therapy for minors, at least among the licensed professionals they have the responsibility and authority to regulate. Boca Raton and Palm Beach County, Florida, like a smattering of other municipalities, have also banned the practice.

Bans are not enforced among clergy and religious practitioners

As I have reported in the past, most of these state laws exempt religious practitioners, either explicitly or effectively, as do the Florida ordinances in question today. Conversion therapy is big as a religious practice in Evangelical and conservative Catholic circles.

I have argued that religious exemptions to conservative therapy bans must end, but I am not writing about that today. The 11th circuit did not rule religious ministers and counselors have the right to practice conversion therapy, they ruled professionals do — for religious, not medical, reasons.

11th Circuit panel rules 2–1 that licensed conversion therapists have the right to practice

Robert Otto and Julie Hamilton, licensed Florida therapists, sued in federal court to challenge ordinances in Boca Raton and Palm Beach County. They claimed a ban on conversion therapy for minors would violate their free speech rights.

A district judge in Miami ruled against them, but yesterday a three-judge panel of the 11th Circuit released a stunning decision declaring that not only do the bans infringe on their speech rights but on their rights and their clients’ rights to practice religion.

The majority opinion calls conversion therapy “controversial,” citing a lack of peer-reviewed blind studies documenting harm, an argument the anti-LGBTQ Liberty Counsel, which works to overturn LGBTQ equality in court cases across the country, stressed in briefs.

The majority opinion also holds (as Liberty Counsel argued) that the therapist’s clients have “sincerely held religious beliefs conflicting with homosexuality, and voluntarily seek SOCE counseling in order to live in congruence with their faith and to conform their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.”

SOCE is an abbreviation for “sexual orientation change efforts.”

A close reading of the opinion, consisting mostly of verbatim excerpts of Liberty Counsel briefs, reveals that the judges hold (wrongly) that conversion therapy might be effective, and that even if it weren’t, professionals have the right to practice it anyway, for religious reasons.

The opinion dismisses evidence of pervasive harmfulness

The judges discounted decades of compelling clinical data, asking for research that experts say cannot be conducted ethically. No research psychologist could (without rightly risking their license) design a blind or double-blind study of a treatment they already know from clinical evidence carries a high risk of suicide.

Civil rights advocates call the decision a disaster

Georgia State University law professor Anthony Kreis calls conversion therapy “abusive,” and the 11th circuit decision “reprehensible,” saying the outcome will “necessarily result in children suffering.”

Legal experts see a circuit split as a huge danger

‘Matthew Shurka, co-founder of pro-LGBTQ Born Perfect, notes that the 11th Circuit’s decision is not in line with other courts’ rulings. “To date 107 laws have passed to protect LGBTQ youth from conversion therapy. Five of those laws have been challenged in federal court and each have been upheld. Today’s ruling from the 11th circuit is an outlier. Our courts cannot allow professionals to harm our LGBTQ youth.”

But Slate legal analyst Mark Joseph Stern says that’s exactly what concerns him. Now that a circuit split exists, he expects the newly hyper-conservative Supreme Court will take up these cases and strike down conversion therapy bans across the nation.

“I have no real doubt that SCOTUS will find these bans unconstitutional,” he warns.

Shannon Minter of the National Center for Lesbian Rights is so worried that he’s urging the municipalities to keep the cases out of the Supreme Court for now. In an email to the LA Blade, Minter said, “I do not think this issue is ripe for Supreme Court review. Today’s ruling is an outlier by two Trump-appointed judges … Because the majority opinion here is so off track, seeking en banc review would be more appropriate than seeking Supreme Court review.”

He notes the judges ignored important legal precedent and a vast body of scientific evidence, but she is not sanguine about convincing the Supreme Court of that.

Trump has handed LGBTQ people a brave new world

We used to rely on the courts to protect us from the tyranny of the majority. But the judges Trump has been appointing change everything, at the Supreme Court and throughout the lower courts.

The idea that religious faith is so privileged that it takes precedence over evidence-based regulation of professions is something so crazy nobody would have suggested it even a year ago.

But here we are.

Two Trump judges in Florida just bought legal arguments based on what is essentially conspiracy theory, discounting the extraordinary clinical consensus of every major medical professional organization in the United States.

And experts are afraid to appeal to the Supreme Court because they’re pretty sure 6 of the 9 justices there would sign off on the same conspiracy theory. They’re afraid the justices will further cement the notion that religious people have a Constitutional right to harm LGBTQ people.

Joe Biden will become president on January 20th, but the Supreme Court will remain the hyper-conservative body Trump made it. Circuit court judges will continue to churn out ridiculous decisions based on partisan politics rather than thoughtful analysis of facts and evidence.

If there’s a way out of this mess, nobody is sure where to start. One thing we know, LGBTQ and other marginalized people are dead center in conservative Christian crosshairs.

James Finn is a Cincinnati Reds fan, former Air Force intelligence analyst, long-time LGBTQ activist, an alumnus of Queer Nation and Act Up NY, an essayist occasionally published in queer news outlets, and an “agented” novelist. Send questions, comments, and story ideas to jamesfinnwrites@gmail.com.