Judge dismisses Christian therapist's lawsuit challenging Maryland's gay 'conversion therapy' ban

By Samuel Smith, Deputy Managing Editor Tuesday, September 24, 2019

A federal judge in Maryland has dismissed an ex-gay psychotherapist’s lawsuit against a state law banning mental health professions from providing so-called "gay conversion therapy" to people struggling with unwanted same-sex attraction. 

U.S. District Judge Deborah K. Chasanow, who was nominated by Democrat President Bill Clinton in 1993, granted the state’s request to throw out the legal challenge to the Youth Mental Health Protection Act.

The bill, signed into law last May by Republican Gov. Larry Hogan, prohibits certain mental health or childcare practitioners from engaging in “conversion therapy with an individual who is a minor.” 

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The legislation labels this type of counseling, known as sexual orientation change efforts, as “unprofessional conduct” that is subject to disciplinary action. 

Licensed professional counselor Christopher Doyle filed the lawsuit with help from the Christian conservative nonprofit legal group Liberty Counsel, arguing that the new restriction violates the free speech and freedom of religion rights of both he and his clients.

Doyle is a therapist at Patrick Henry College, a Christian institution in Purcellville, Virginia. He also directs the Institute for Healthy Families based in the Washington, D.C., area.

Over the years, Doyle has verbally counseled minors struggling with unwanted same-sex attraction, behaviors or identity who voluntarily seek his help. The lawsuit alleges that the state law prohibits children from seeking the counseling they want. 

The judge dismissed the case, however, saying that the lawsuit didn’t state a free speech claim “upon which relief can be granted.” 

In her decision, Chasanow contended that the conversion therapy ban would “survive a constitutional challenge under intermediate scrutiny” as the state’s interest in enforcing the law is to protect minors from “harmful conduct.”

“The First Amendment provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the Free Exercise thereof,’” Chasanow wrote. “U.S. Const., amend. I. The First Amendment does not, however, provide absolute protection to engage in religiously motivated conduct.”

The judge also contended that the law does not actually bar practitioners from “engaging in any form of personal expression” but only regulates speech used “in the process of conducting conversion therapy on minor clients.”

“[T]hey remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients,” the ruling reads. 

Chasanow added that the Youth Mental Health Protection Act is essentially “a regulation of [psychological] treatment insofar as it directs [mental health or childcare practitioners] to do certain things in the context of treating a [client].”

“In that sense, the government can lay claim to its stronger interest in the regulation of professional conduct,” the decision says. 

Although Doyle maintains that he provides therapy to children who go to him voluntarily, the judge asserted that children age 16 and younger do not have the capacity to consent to psychological treatment. 

Doyle’s attorneys at Liberty Counsel have vowed to appeal Chasanow’s ruling to the Fourth Circuit Court of Appeals. 

In a statement, the Orlando-based legal group argued that Chasanow’s ruling ignored a U.S. Supreme Court precedent set in the 2018 ruling of National Institute for Family and Life Advocates v. Becerra.

In that case, the Supreme Court struck down a California law requiring that pro-life pregnancy centers inform their clients that abortion services are available to them. 

“The district court relied upon the decisions in Pickup v. Brown and King v. Governor of New Jersey, both of which held counseling bans like Maryland's are permissible under the First Amendment because licensed professionals do not engage in fully protected speech when counseling clients,” a press release from Liberty Counsel reads.

“But in NIFLA, the Supreme Court specifically called out those decisions as incorrectly decided, reopening the door to constitutional challenges of therapy bans.”

“The Maryland district court ignored NIFLA’s abrogation of Pickup and King, and repeated their error by assigning less First Amendment protection to Doyle’s counseling speech,” the statement added. 

Roger Gannam, Liberty Counsel’s assistant vice president of legal affairs, said in a statement that the Supreme Court in NIFLA essentially “upheld the First Amendment’s prohibition against censorship of professionals speech that the government doesn’t like.”

“[B]ut the district court ignored that precedent and gave Maryland a pass on its unconstitutional therapy ban,” Gannam said. “The Fourth Circuit Court of Appeals should reverse the district court and hold that Doyle’s counseling speech is entitled to full First Amendment protection.”

In the legislation, lawmakers cite the American Psychological Association’s conclusion that sexual orientation change efforts pose health risks to LGBT people. However, some have accused the APA of pushing an “ultra-liberal” agenda.

Raquel Coombs, a spokeswoman for Democrat Attorney General Brian Frosh, said in a statement that conversion therapy “relies on the false premise that an LGBTQ individual is broken and must be fixed.”

“Advocates of this type of therapy are selling something that doesn’t make people’s lives better, (but) rather, as the court agreed, is actually harmful to minors,” Coombs argued, according to The Associated Press. 

In addition to Maryland, 17 other states have policies against conversion therapy in place.