In January 2019, a magistrate judge in Tampa, Florida, issued an opinion recommending that a ban on conversion therapy be partially overturned. The judge ruled that banning verbal conversion therapy violated the counselors’ First Amendment rights. The opinion now awaits review by a federal judge, who will consider it in issuing a final ruling.
Amanda Arnold Sansone is a magistrate judge in Tampa, originally appointed to the bench in 2016. Magistrate judges assist federal district court judges, performing delegated duties–such as setting bail and selecting a jury–that can vary among districts.
Robert Vazzo, David Pickup, and New Hearts Outreach are the plaintiffs in the case. Vazzo is a licensed mental health counselor in California, Nevada, Ohio, and Florida, while Pickup is licensed to counsel in California and Texas, and is in the process of becoming licensed in Florida, according to the Tampa Bay Times. New Hearts Outreach is a Tampa-based Christian ministry that claims to help people “struggling with unwanted same-sex attractions, behaviors, and identity” through conversion therapy. Both Vazzo and Pickup say they engage in such treatment only for patients who request it.
Liberty Counsel, based in Maitland, FL, is a conservative Christian legal advocacy group that represented the plaintiffs in court, according to the Washington Post.
In April 2017, the city of Tampa adopted a local ordinance prohibiting mental health professionals from subjecting minors to conversion therapy, a mental health counseling technique that seeks to change an individual’s gender identity or sexuality. It does not provide supportive counseling for those undergoing a gender transition, however.
While New Hearts Outreach prioritizes a speech-based form of conversion therapy, institutionalization, castration, and electroconvulsive shock therapy have all been used in the past and are still in use today to try to convert LGBTQ individuals, according to the National Center for Lesbian Rights. The American Psychiatric Association opposes conversion therapy outright, calling efforts to change individuals’ sexual orientation unethical and harmful.
Under Tampa’s ban, counselors who offer conversion therapy to minors would face a $1,000 fine for first-time offenses, and $5,000 penalties for every infraction thereafter, the Times reported; the ordinance applies to both verbal talk therapy and more severe aversion techniques, such as shock therapy. The city has not yet faced a situation in which it has enforced the ordinance in its two years on the books, according to city attorney Salvatore Territo.
In December 2017, Vazzo, Pickup, and New Hearts Outreach ministry, represented by Liberty Counsel, sued the city to challenge the ordinance. The plaintiffs argued it unconstitutionally imposed a content-based restriction on their speech.
Magistrate judge partially blocks conversion therapy ban
On Jan. 30, 2019, Sansone blocked the ordinance’s ban on non-coercive, verbal counseling, saying the plaintiffs had sufficiently demonstrated that it violated their First Amendment Free Speech rights, while the city provided no evidence of verbal conversion therapy harming Tampa minors. Aversive counseling, such as electric shock therapy, would still be barred.
“This well-reasoned opinion underscores the serious First Amendment violations of laws that dictate what a counselor and client may discuss in the privacy of their counseling session,” Liberty Counsel founder and chairman Mat Staver said.
LGBTQ activists opposed the opinion, including John Desmond, who with his wife had established the Tampa chapter of Parents and Friends of Lesbians and Gays, or PFLAG, a network for families with LGBTQ people.
“It doesn’t work at all and it is psychologically harmful,” Desmond said in an interview with the Tampa Bay Times.
In an op-ed in the New York Times, Sam Brinton, head of advocacy and government affairs at the Trevor Project, a nonprofit that supports and provides crisis intervention for LGBTQ youth, wrote about the trauma that can be experienced in conversion therapy as an adolescent.
“For over two years, I sat on a couch and endured emotionally painful sessions with a counselor. I was told that my faith community rejected my sexuality; that I was the abomination we had heard about in Sunday school,” Brinton wrote. “But it didn’t stop with these hurtful talk-therapy sessions. The therapist ordered me bound to a table to have ice, heat and electricity applied to my body. I was forced to watch clips on a television of gay men holding hands, hugging and having sex. I was supposed to associate those images with the pain I was feeling to once and for all turn into a straight boy.”
Constitutional law experts have identified Sansone’s opinion as an outlier, as it contradicts two previous federal appeals court opinions in California and New Jersey, both of which upheld conversion therapy bans. Her position could have broader implications for First Amendment protections of medical speech, according to Claudia Haupt, a professor at Northeastern University Law School.
“The problem usually is that … licensed professionals can’t just say anything they want,” Haupt told the Post. “If you’re acting in your professional capacity, there are consequences to giving bad advice, so speech can be sanctioned.”
Sansone’s report was to be sent to a federal judge, who will review it and consider it when ruling on the case.
Bans on conversion therapy for minors have been empirically upheld by the Supreme Court. In both June 2014 and May 2017, the high court refused to hear appeals in a case challenging California’s 2012 conversion therapy ban, according to PBS NewsHour. But another Supreme Court decision related to medical Free Speech has seemingly bucked that trend: In NIFLA v. Becerra, decided in June 2018, the court ruled that crisis pregnancy centers, which aim to dissuade women from having abortions, are not required to tell their patients about the availability of abortions in their state.
That precedent has spurred those seeking to defend conversion therapy as Free Speech. Liberty Counsel filed a suit challenging Maryland’s conversion therapy ban in January 2019, the same month that Alliance Defending Freedom, a conservative Christian nonprofit, filed a suit challenging New York City’s ban, according to ThinkProgress.
Prepared by Maya Gandhi ’20
Uploaded April 5, 2019