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Quick 11th Circuit breaking news and open thread

Community/Meta Conversion therapy cases

BREAKING news: The Eleventh Circuit Court of Appeals (which hears federal appeals in Alabama, Florida, and Georgia) just ruled that LGBT “conversion therapy” bans for minors are a violation of the First Amendment.

Two judges nominated by President Trump were in the majority, while a judge nominated by President Obama dissented.

Equality Case Files has the documents from the case here and the argument audio is here. More here.

We’ll have more on this once I read the decision.

This is also an open thread.

Thanks to Equality Case Files for these filings


  • 1. VIRick  |  November 20, 2020 at 3:23 pm

    2020 Election Results Certification Dates

    For the 2020 election, the certification dates for 15 states have already passed. Another 5 states will follow suit on Monday, 23 November. For 13 more states plus DC, the certification date will occur by the end of November. For the 6 states where Trump is flailing about attempting to interfere, while spreading his lies about voter fraud, these are the dates, based on their respective state law, upon which the given state certifies its results:

    20 November – Georgia
    23 November – Michigan, Pennsylvania
    24 November – Nevada
    30 November – Arizona
    1 December – Wisconsin

    Thus, the Presidential race will be official as of the close of business on Monday, 23 November, because by adding together the electoral college votes of the uncontested states that Biden won, together with that of Georgia, Michigan, and Pennsylvania that Biden certifiably won, Biden will have secured 279 electoral votes, and can thus be officially certified as the uncontested winner. At the same moment, even without a concession speech, we can also certify the certified, uncontested LOSER.

    We do not need to wait for certification in Nevada, Arizona, or Wisconsin, nor in the other 27 states plus DC which were not contested. However, I am glad that deadline dates were such, and that state law was such, that Trump had to fork over $3,000,000.00 in hard cash to the state of Wisconsin, paid in advance in full, before the state would even lift a finger to begin his "precious," but completely useless, partial re-count of votes in Dane and Milwaukee Counties, two of three Wisconsin counties where voters told Trump to kiss their collective ass. He apparently balked at providing the required $7.9 million in hard cash for a full state re-count, a point that proves the old adage, "While asshole balks, money talks, and bullshit walks."….

  • 2. VIRick  |  November 20, 2020 at 4:43 pm

    11th Circuit Court of Appeals Rules Against "Conversion Therapy" Ban

    Per Equality Case Files:

    On 20 November 2020, in "Otto v. City of Boca Raton and County of Palm Beach FL," the federal suit in which challengers to ordinances banning "conversion therapy" on minors appealed the denial of the preliminary injunction to block enforcement of said ban, in a 2-1 vote, the 11th Circuit Court of Appeals reversed the district court decision, stating that the ordinances violate the First Amendment's guarantee of free speech:

    Judges Britt C. Grant and Barbara Lagoa:
    "We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carve-out for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny. "

    Judge Beverly B. Martin's dissent begins on page 28 of the opinion:
    "The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech. Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist. … I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissability. I would therefore affirm the District Court’s denial of a preliminary injunction on the Therapists’ free speech claim."

    The Opinion is here:

    Lambda Legal issued the following statement:

    The City of Boca Raton and Palm Beach County joined states and municipalities across the country who have properly banned the discredited and harmful practice of so-called "conversion therapy" on minors in order to protect LGBTQ youth. Laws prohibiting this dangerous practice have withstood legal challenges in numerous courts. Today’s decision is a marked departure from precedent and an incredibly dangerous decision for our youth.

    So-called "conversion therapy" is nothing less than child abuse. It poses documented and proven critical health risks, including depression, shame, decreased self-esteem, social withdrawal, substance abuse, self-harm and suicide. Youth are often subjected to these practices at the insistence of parents who don't know or don't believe that the efforts are harmful and doomed to fail: when these efforts predictably fail to produce the expected result, many LGBTQ children are kicked out of their homes.

    Both judges joining today’s decision were appointed by President Trump. We fear that today’s decision may be the tip of the iceberg in terms of the harm that may come from a federal judiciary that has been packed for the last four years with dangerous ideologues. The damage done by this misguided opinion is incalculable and puts young people in danger.

    Palm Beach County Attorney Helene Hvizd's office told the "LA Blade" that she plans to appeal the ruling.

    The 11th Circuit Court of Appeals covers Alabama, Florida, and Georgia. Although no jurisdiction within Alabama or Georgia has passed an ordinance banning the discredited practice of "conversion therapy" on minors, 27 jurisdictions in Florida have done so.

  • 3. VIRick  |  November 20, 2020 at 6:04 pm

    11th Circuit Court of Appeals: What Should Defendants Do Next?

    The 11th Circuit Court of Appeals decision creates a split among circuit courts on the constitutionality of bans on "conversion therapy." The 3rrd Circuit Court of Appeals and the 9th Circuit Court of Appeals have previously upheld these bans as constitutional. The split among the circuits on the issue may prompt the Supreme Court to take up the issue to resolve the constitutional issue on a nationwide basis, provided the municipalities submit a petition for review.

    In an e-mail to the "Washington Blade," Shannon Minter, legal director of the National Center for Lesbian Rights, discouraged any attempt to call for resolution of the issue before the Supreme Court, which now has a 6-3 conservative majority as a result of Trump-appointed picks.

    “I do not think this issue is ripe for Supreme Court review,” Minter said. “Today’s ruling is an outlier by two Trump-appointed judges. As the dissent points out, the decision is not well-grounded in precedent and ignores what the dissent rightly describes as a 'mountain of rigorous evidence' that conversion therapy puts minors at risk of serious harms.” Minter urged the municipalities to take another course of action, saying “because the majority opinion here is so off track, seeking en banc review would be more appropriate than seeking Supreme Court review.”

    "Conversion therapy" for youth is banned in DC, Puerto Rico, and 20 states: Connecticut, California, Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New Jersey, New Mexico, New York State, Oregon, Rhode Island, Utah, Vermont, Virginia, and Washington State, none of which are in the 11th Circuit. Instead, they are in the 1st, 2nd, 3rd, 4th, 7th, 9th, 10th, and DC Circuits.

  • 4. JayJonson  |  November 21, 2020 at 7:10 am

    I agree with Shannon Minter that the best approach would be to ask for an en banc review.

  • 5. VIRick  |  November 20, 2020 at 7:11 pm

    Popular Vote in the 2020 Presidential Election

    As of late evening on 20 November 2020, with at least 98% of the total vote tabulated, Biden has tallied 79,822,089 votes to Trump's 73,797,468 votes (51.96-48.04%). With those new figures, another milestone has been passed, as Biden has garnered 6,024,621 more votes than the childish, impetuous, sore LOSER. Yes, over 6 million more votes!

    In the states where Trump has been quibbling, harassing, and bullying the most, we have these up-dated vote numbers:
    Michigan: Biden's lead is 156,643 votes (50.65-47.83%)
    Pennsylvania: Biden's lead is 82,452 votes (50.02-48.83%)
    Nevada: Biden's lead is 33,596 votes (50.06-47.67%)
    Wisconsin: Biden's lead is 20,467 votes (49.57-48.95%)
    Georgia: Biden's lead is 12,636 votes (49.50-49.25%)
    Arizona: Biden's lead is 10,457 votes (49.39-49.09%)

    Today was also the last day in the last state for mail-in ballots to be received.

    For the 4 unresolved House races, in CA-25, Smith-D is within 400 votes (0.12%) of overtaking Garcia-R, while in NY-22, Brindisi-D-R is 281 votes (0.09%) away from overtaking Tenney-R. In IA-2, Hart-D remains 47 votes (0.02%) shy of overtaking Miller-Meeks, and in CA-21, Cox-D is 1618 votes (0.98%) down from the total tallied for Valadao-R.

    Count-down: 59 days

  • 6. Fortguy  |  November 20, 2020 at 10:00 pm

    In Texas, the State Board of Education has updated the sex ed curriculum for the first time since 1997. Sadly, the new upgrade still doesn't bring classroom instruction into the 21st Century. The new standards will not mention sexual orientation or gender identity not even within the context of discouraging bullying, nor will they discuss consent as even that matter was too controversial for the board.

    Students will now finally learn about birth control for the purposes of preventing pregnancy and STDs, but abstinence will still be emphasized as the ideal method. The new curriculum was approved on a largely party-line vote. The board has 15 members elected from humongous single-member districts (in comparison, the state has 36 congressional districts) of which only five of the 15 are Democrats.

    Aliyya Swaby, The Texas Tribune: Texas education board approves new sex ed policy that does not cover LGBTQ students or consent

  • 7. Elihu_Bystander  |  November 21, 2020 at 11:04 am

    This post is in response to ianbirmingham’s post in the previous thread.

    11th Circuit holds (2-1) that law prohibiting nonaversive LGBT conversion therapy for minors violates the First Amendment.
    Otto v. Cty of Boca Raton Fla….

    I read the majority opinion and the descent in this case. I would encourage all to read it all the way through. The majority held that the Ordinances failed constitutionality because they banned content. And, therefore, strict scrutiny was applied and in their opinion it could not meet that test. They also held that a report from the American Psychological Association, relied on by the defendants, concedes that “nonaversive and recent approaches to SOCE have not been rigorously evaluated.” They also state, “In the first three printings of the Diagnostic and Statistical Manual of Mental Disorders, the American Psychiatric Association considered homosexuality a paraphilia, disorder, or disturbance. Only in 1987 was homosexuality completely delisted from the Manual. The Association’s abandoned position is, to put it mildly, broadly disfavored today.” Britt C. Grant, circuit judge, and Barbara Lagoa, circuit judge. I’ll give you three guesses who appointed those judges and the first two don’t count. It was of course Donald J. Trump. In fact, he has appointed six circuit judges to the 11th circuit. He flipped the circuit from majority Democratic appointed judges to majority Republican appointed judges.

    The dissenting opinion focused on how the Ordinances did meet strict scrutiny because this question requires addressing two subsidiary issues: first, the proper level of scrutiny; and second, whether the Ordinances further a compelling government interest in a narrow enough way to satisfy the level of scrutiny. I would hold the Ordinances satisfy strict scrutiny and that, as a result, the Therapists are not entitled to an injunction on this claim.” Beverly B. Martin, circuit judge appointed by Barack Obama.

    The havoc Trump has heaped upon queer civil rights is just beginning to be revealed. We will suffer irreparable harm for generations to come!

  • 8. ianbirmingham  |  November 22, 2020 at 2:12 am

    The ordinance in question prohibits licensed counselors from both aversive SOCE ("Sexual Orientation Change Efforts"), aka "aversion therapy", and non-aversive SOCE, aka "talk therapy". The question here is whether or not the ordinance's prohibition of non-aversive SOCE ("talk therapy") is constitutional.

    The ordinance exempts non-licensed counselors (typically, religious leaders); both majority and dissent agree that this is necessary in order to satisfy the Constitutional right of religious freedom. Therefore, regardless of the decision in this case, non-aversive SOCE ("talk therapy") will still continue to be legally performed.

    In this case, both majority and dissent agree that strict scrutiny applies. Strict scrutiny is the highest standard of review and it is, intentionally, extremely difficult to satisfy.

    The majority's review of the evidence cites a statement by the APA that "nonaversive and recent approaches to SOCE have not been rigorously evaluated", and notes that although there is some evidence which may point in the general direction of possible harm from nonaversive SOCE, it is not sufficient to support a finding that such harm has been scientifically proven to exist. Without such a finding, the majority holds that the evidence in this case is too weak to satisfy strict scrutiny. The majority also observes that provable actual harm in any specific case can certainly be properly addressed via existing laws. The dissent admits that the evidence is weak but would accept it anyway.

    A prior 11th Circuit en banc case, 2017's Wollschlaeger v. Governor of Florida, considered the constitutionality of a law prohibiting doctors from asking patients whether or not they had guns in the home. This law was the National Rifle Association's attempt to censor anti-gun speech from doctors. The 11th Circuit found that the NRA's attempt was unconstitutional because it violated the free speech rights of doctors. In the view of the majority, this case is essentially the same and the same conclusion applies here: banning nonaversive "talk therapy" by licensed therapists is unconstitutional because it violates the free speech rights of licensed therapists.

    A prior federal case, 1975's Erznoznik v. City of Jacksonville, held that speech cannot be suppressed "solely to protect the young from ideas or images that a legislative body thinks [are] unsuitable for them". In that case, a local ordinance tried to prohibit drive-in theaters from showing movies containing nudity, and the ordinance was struck down as unconstitutional.

    In this case, I agree with the majority opinion, which quite properly enforces the First Amendment. Lambda Legal's proposed appeal to the 11th Circuit en banc is a waste of time and money. Either the 11th Circuit will refuse to hear the case en banc, or it will only result in the very same type of smackdown the NRA properly received in Wollschlaeger.

  • 9. JayJonson  |  November 22, 2020 at 9:29 am

    So you think Trump's judges are correct, and the opinions from the other circuits are wrong? I don't know whether the laws from California and New Jersey and many other places exempt "talk therapy," but I don't think so. When these laws have been challenged, the circuits have upheld the constitutionality of these laws on the grounds that states have the power to regulate medical professionals and protect minors from dangerous protocols. Those circuits make a distinction between an adult who makes the decision to attempt to change his or her sexual orientation and a minor who is particularly vulnerable to pressure from medical "authorities" and other adults. In any case, most challenges to these laws when they are not heard by Trump appointees have failed, and those that have succeeded did so on procedural issues rather than constitutional issues. So I think it would make sense to appeal for an en banc hearing at the 11th Circuit.

  • 10. ianbirmingham  |  November 22, 2020 at 5:30 pm

    The crucial difference here is that the prior rulings in California, New Jersey, etc. took place before 2018. New Jersey's ruling, for example, occurred in 2014:

    The 11th Circuit's decision occurred in 2020, which is obviously after 2018.

    Why is 2018 important? That's the year in which SCOTUS issued its
    decision regarding professional speech.

    The Ninth Circuit used only rational basis review when it upheld California's law regarding SOCE. 2018's NIFLA greatly strengthened First Amendment protection for professional speech by requiring strict scrutiny. NIFLA even specifically calls out and denounces the California SOCE ruling (the Pickup case) and the New Jersey SOCE ruling (the King case) as bad examples of First Amendment law regarding free speech:

    Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates "professional speech." 839 F.3d, at 839. Some Courts of Appeals have recognized "professional speech" as a separate category of speech that is subject to different rules. See, e.g., King v. Governor of New Jersey, 767 F.3d 216, 232 (C.A.3 2014); Pickup v. Brown, 740 F.3d 1208, 1227-1229 (C.A.9 2014); Moore-King v. County of Chesterfield, 708 F.3d 560, 568-570 (C.A.4 2013). These courts define "professionals" as individuals who provide personalized services to clients and who are subject to "a generally applicable licensing and regulatory regime." Id., at 569; see also, King, supra, at 232; Pickup, supra, at 1230. "Professional speech" is then defined as any speech by these individuals that is based on "[their] expert knowledge and judgment," King, supra, at 232, or that is "within the confines of [the] professional relationship," Pickup, supra, at 1228. So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny. See King, supra, at 232; Pickup, supra, at 1253-1256; Moore-King, supra, at 569.

    (Continued in next comment)

  • 11. ianbirmingham  |  November 22, 2020 at 5:32 pm

    (Continued from prior comment)

    But this Court has not recognized "professional speech" as a separate category of speech. Speech is not unprotected merely because it is uttered by "professionals." This Court has "been reluctant to mark off new categories of speech for diminished constitutional protection." Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 804, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (KENNEDY, J., concurring in part, concurring in judgment in part, and dissenting in part). And it has been especially reluctant to "exemp[t] a category of speech from the normal prohibition on content-based restrictions." United States v. Alvarez, 567 U.S. 709, 722, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (plurality opinion). This Court's precedents do not permit governments to impose content-based restrictions on speech without "`persuasive evidence . . . of a long (if heretofore unrecognized) tradition'" to that effect. Ibid. (quoting Brown v. Entertainment Merchants Assn., 564 U.S. 786, 792, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011)).

    This Court's precedents do not recognize such a tradition for a category called "professional speech." This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking. First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their "commercial speech." See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985); Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 250, 130 S.Ct. 1324, 176 L.Ed.2d 79 (2010); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). Second, under our precedents, States may regulate professional conduct, even though that conduct incidentally involves speech. See, e.g., id., at 456, 98 S.Ct. 1912; Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 884, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (opinion of O'Connor, KENNEDY, and Souter, JJ.). But neither line of precedents is implicated here.

    NIFLA means that if the California and New Jersey SOCE challenges regarding "talk therapy" were to be relitigated (as they most likely will be), their results this time around would be in agreement with the recently-issued ruling by the 11th Circuit and in disagreement with the rulings issued prior to 2018.

    I therefore reassert and re-emphasize that Lambda Legal's proposed appeal to the 11th Circuit en banc is a waste of time and money. Either the 11th Circuit will refuse to hear the case en banc, or it will only result in the very same type of smackdown the NRA properly received in Wollschlaeger.

  • 12. JayJonson  |  November 23, 2020 at 8:01 am

    Thanks for the detailed reply.

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