Tampa ban on counseling for minors with unwanted same-sex attraction, gender confusion struck down

A general view of the skyline on August 26, 2012 in Tampa, Florida.
A general view of the skyline on August 26, 2012 in Tampa, Florida. | Getty Images/Scott Olson

A Tampa city ordinance banning counseling for minors with unwanted same-sex attraction and gender confusion has been overturned in federal court.

In a Friday ruling from the United States District Court for the Middle District of Florida, Judge William F. Jung issued an order granting summary judgment to Christian legal group Liberty Counsel in its lawsuit to invalidate an ordinance in the city of Tampa that prohibited voluntary talk therapy for minors experiencing unwanted sexual feelings and attractions and gender identity confusion.

The group represented Robert Vazzo, a marriage and family therapist, and New Hearts Outreach Tampa Bay, a Christian counseling and discipleship ministry. With Jung's ruling, the ordinance was struck down, arguing that the government does not have standing to try to interfere with confidential conversations in therapy sessions.

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“The City has never before substantively regulated and disciplined the practice of medicine, psychotherapy, or mental health treatment within City limits. Nor does the City possess charter or home rule authority to do so. The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline," the ruling reads.

“Nothing is more intimate, more private, and more sensitive, than a growing young man or woman talking to a mental health therapist about sex, gender, preferences, and conflicting feelings. The Ordinance inserts the City’s code enforcers into the middle of this sensitive, intense and private moment. But this moment is already governed by Florida’s very broad rights of privacy, something the Ordinance ignores … The Florida Constitution’s privacy amendment suggests that government should stay out of the therapy room. The Tampa Ordinance does not address this constitutional issue, and in doing so the City attempts to occupy a very private space, contrary to a strong statewide policy.”

The ruling also underscored the importance of parental rights, calling them "fundamental" and protected by both the Florida Supreme Court and the state constitution.

“This is a great victory for counselors and clients," Mat Staver, Liberty Counsel said in response to the ruling.

"This ruling dooms every municipality in Florida and is the beginning of the end of more than 50 similar local laws around the country," he added, noting that the First Amendment "will wipe away" every other legal measure that is restrictive of such speech.

The issue of therapeutic options for persons who experience gender confusion or unwanted same-sex attraction has risen to the fore in recent years as various states and cities have banned the practice, which is often referred to as "conversion therapy" or "sexual orientation change efforts" (SOCE). With the ascent of the transgender movement these laws have been passed not only with regard to sexual orientation but also "gender identity," forbidding intervention when someone self-identifies as the opposite sex.

The Vazzo decision is the latest of legal developments signaling a reversal of therapy bans amid pushes elsewhere to outlaw such counseling.

Last month, the city council of New York City moved to repeal its two-year-old ban, citing the changing composition of the judiciary, including a conservative-leaning Supreme Court, and the likelihood that it would ultimately be struck down on free speech grounds.

That likelihood is in part due to the words of Supreme Court Justice Clarence Thomas in the majority opinion in NIFLA v. Becerra, a case — decided in June 2018 — that centered around a group of California-based pro-life pregnancy centers. Citing the First Amendment, the plaintiffs in the case argued that they should not in any way have to promote or refer for abortion-related services as was required in a state law, the Reproductive FACT Act.

Writing in their favor, Thomas cited two cases, Pickup v. Brown and King v. Governors of New Jersey, in which lower courts ruled that sexual orientation change efforts (SOCE) laws were constitutional and that the speech of the counselor is not fully protected under the First Amendment since the speech is classified as professional "conduct."

The NIFLA opinion, however, went on to explain that certain appeals courts "have recognized 'professional speech' as a separate category of speech that is subject to different rules," but "speech is not unprotected merely because it is uttered by 'professionals.'"

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