Oct. 8, 2019
In a major victory for the personal freedom of young people with unwanted same-sex attractions to seek professional help to achieve their goals, a U.S. District Court judge in Florida has struck down a local ordinance in Tampa, Florida that outlawed sexual orientation change efforts (so-called “conversion therapy or reparative therapy”) for minors when conducted by licensed professionals.
In Vazzo v. Tampa, U.S. District Court Judge William F. Jung, a 61-year-old Trump appointee who has been on the bench for a year, struck down the law and issued a permanent injunction against its enforcement. Plaintiff Robert Vazzo, a licensed marriage and family therapist, was represented in the case by Liberty Counsel.
Judge Jung chose not to directly address federal constitutional issues of free speech under the First Amendment, which has been the focus of other court challenges to therapy bans. Instead, he ruled that local governments in Florida had no authority to legislate on this issue because of an “implied preemption doctrine,” declaring, “The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline.”
Judge Jung wrote that “substantive regulation of psychotherapy is a State, not a municipal concern,” and pointed out that “Tampa has never regulated healthcare substantively in any other way before” this ordinance was adopted in 2017.
Not only are local governments not authorized by Florida law to regulate the provision of mental health care services, but they are hardly competent to enforce such regulations. Judge Jung noted this in the following passage (emphasis added; citations omitted):
The City’s Department of Neighborhood Enhancement (formerly Code Enforcement) enforces the Ordinance. Although this is the City Department that usually enforces code violations like overgrown weeds and unpermitted contracting, the City’s Neighborhood Enhancement director testified that he would take any suspected violation of the SOCE Ordinance to the City Attorney before issuing a notice of violation. The Assistant City Attorney tasked as representative on this matter has been a lawyer for four years but has no training in counseling, therapy, or medicine; and stated that the City would consult Webster’s Dictionary to understand the terms in the Ordinance. If contested, the City would employ a “special magistrate” to adjudicate the alleged violation as a code enforcement proceeding. The City’s special magistrates are unpaid volunteers appointed by the mayor. The City has no plan in connection with the Ordinance to appoint someone who is a licensed mental health provider.
Not only would the enforcers of such a law be incompetent to do so, but the enactors of it did so in ignorance:
The main sponsor of the Ordinance on the council was unaware of the difference between talk therapy and aversive practices, and testified that council and participating staff are untrained in the mental health field.
Judge Jung’s reliance on “preemption doctrine” may help fuel other efforts to overturn (or lobby against) other local therapy bans across the country. Although 18 states have passed state-wide therapy bans, passing such local ordinances in more liberal urban areas is a tactic therapy opponents have employed in conservative states that have refused to adopt state-wide legislation.
However, Judge Jung’s opinion in the case is not so narrowly written as to be applicable only to local ordinances. For example, he ruled that the ordinance encroached upon at least five principles of state law in Florida which would apply to any proposed state therapy ban there (and possibly in other states) as well:
- “Florida’s Broad Right of Privacy” (“The Florida Constitution’s privacy amendment suggest that government should stay out of the therapy room.”)
- “Parental Choice in Healthcare” (“. . . [W]ith very few exceptions, parents are responsible for selecting the manner of medical treatment received by their children . . . until age 18.”)
- “Florida’s Patient’s Bill of Rights” (“A patient has the right to access any mode of treatment that is, in his or her own judgment and the judgment of his or her health care practitioner, in the best interests of the patient, including complementary or alternative health care treatments . . .”)
- “Florida’s Endorsement of Alternative Healthcare Options” (“It is the intent of the Legislature that citizens be able to make informed choices for any type of health care they deem to be an effective option . . . including . . . treatments designed to complement or substitute for the prevailing or conventional treatment methods.”)
- “Florida’s Well-Established Doctrine of Informed Consent” (“When the patient is denied the ability to exercise or even consider informed consent, the patient’s personal liberty suffers.”)
The judge’s decision also cited abundant evidence in the record of the case demonstrating scientifically how weak the case for any such therapy bans is (source citations omitted):
• Minors can be gender fluid and may change or revert gender identity.
• Gender dysphoria during childhood does not inevitably continue into adulthood.
• Formal epidemiologic studies on gender dysphoria in children, adolescents, and adults are lacking.
• One Tampa expert testified there is not a consensus regarding the best practices with prepubertal gender nonconforming children.
• A second Tampa expert testified consensus does not exist regarding best practices with prepubertal gender nonconforming children, but a trend toward a consensus exists.
• Emphasizing to parents the importance of allowing their child the freedom to return to a gender identity that aligns with sex assigned at birth or another gender identity at any point cannot be overstated.
• One cannot quantify or put a percentage on the increased risk from conversion therapy, as compared to other therapy.
• Scientific estimates of the efficacy of conversion therapy are essentially nonexistent because of the difficulties of obtaining samples following individuals after they exit therapy, defining success, and obtaining objective reassessment.
• Based on a comprehensive review of this work, the American Psychological Association 2009 SOCE Task Force concluded that no study to date has demonstrated adequate scientific rigor to provide a clear picture of the prevalence or frequency of either beneficial or harmful SOCE outcomes. More recent studies claiming benefits and/or harm have done little to ameliorate this concern.
• No known study to date [looking at 2014 article] has drawn from a representative sample of sufficient size to draw conclusions about the experience of those who have attempted SOCE.
• No known study [looking at same 2014 article] has provided a comprehensive assessment of basic demographic information, psychosocial wellbeing, and religiosity, which would be required to understand the effectiveness, benefits and/or harm caused by SOCE.
• Although research on adult populations has documented harmful effects of SOCE, no scientific research studies have examined SOCE among adolescents.
• With extraordinarily well-trained counseling “in a hypothetically perfect world” it may be an appropriate course of action for a counselor to aid a gender-dysphoric child who wants to return to biological gender of birth.
• There is a lack of published research on efforts to change gender identity among childhood and adolescents.
• As of October 2015 no research demonstrating the harms of conversion therapy with gender minority youth has been published. In 2018 an article was published on youth but causal claims could not be made from that 2018 report.
The Tampa ruling comes on the heels of New York City’s recent decision to repeal its adult therapy ban for fear of a negative precedent from a court case challenging it. Together, these two events have given welcome evidence that the days of such freedom-denying therapy bans may now be numbered.