A federal judge in Florida has struck down a ban on widely discredited “ex-gay” conversion therapy in Tampa, ruling the city lacks jurisdiction to enact the ordinance.
In a 41-page decision, U.S. District Judge William Jung, a Trump appointee, enjoined enforcement of the ban under the doctrine of implied preemption, asserting Tampa overreached in matters reserved for the state legislature.
“The city’s ordinance creates a danger of conflict with the legislature’s broad program for the healing arts in Florida,” Jung writes. “The strong policy reasons for a statewide, uniform system of substantive healthcare regulation and discipline are clear, as is the legislature’s intent for same.”
The City of Tampa passed the ban on conversion therapy, Ordinance 2017-47 on April 6, 2017. Former Mayor Bob Buckhorn signed it four days later. (Jane Castor, a lesbian and former police chief, is now mayor of Tampa.)
The ordinance prohibits therapy seeking to change sexual orientation or gender expression within the City of Tampa, but is restricted to minor patients (not adults) and practices conducted by medical doctors and mental health professionals (so clergy and unlicensed persons are exempted.)
Jung, casting a dismissive eye on the Tampa measure, writes the city is unaware of any minor being prescribed conversion therapy within its limits.
Further, Jung writes Tampa has “never before substantively regulated and disciplined the practice of medicine, psychotherapy, or mental health treatment,” nor does the municipality “possess charter or home rule authority to do so.”
Jung concludes the ordinance is “preempted by the comprehensive Florida regulatory scheme for health care regulation and discipline.”
“The field of gender expression is especially complex,” Jung writes. “Tampa’s lay attempt at psychotherapy regulation crowds into this very complex, evolving area.”
Although Jung was confirmed to the federal bench after being appointed by Trump last year, it should be noted he was previously nominated by both President George W. Bush and Barack Obama. Both times, the presidents nominated Jung during the final months of their administrations. The Senate didn’t act to confirm him.
Jung reached the decision against the ordinance as a result of litigation filed by Robert Vazzo, a marriage and family therapist in Florida who seeks to provide conversion therapy to minors. His organization, “Voices of Change,” bills itself as offering “real change in sexual feelings through through therapy that works.”
Another plaintiff is New Hearts Outrach, a Christian ministry in Tampa that seeks to refer LGBT youth to conversion therapy.
Therapy aimed at changing an individual’s sexual orientation or transgender status is considered ineffectual at best and harmful at worst. Major medical and psychological institutions — including the American Psychological Association, the World Health Organization, the American Medical Association and the American Academy of Pediatrics — widely reject the practice.
Mat Staver, who’s representing those plaintiffs as chair of the Liberty Counsel, crowed in delight after Jung’s decision and called it “a great victory for counselors and clients.”
“Regulating healthcare is above the pay grade of local municipalities,” Staver said. “While striking down the ordinance, the court shredded the arguments used to justify these unconstitutional counseling bans. This ruling dooms every municipality in Florida and is the beginning of the end of more than 50 similar local laws around the country.”
The Liberty Counsel, a notoriously anti-LGBT legal group, has filed unsuccessful legal challenges to the conversion therapy bans in New Jersey and Maryland.
Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision is “an outlier, and unlikely to have much influence.”
“We disagree with the court’s analysis, which undermines the ability of localities in Florida to protect their own residents from serious harms,” Minter said. “The Tampa City Council did the right thing to protect LGBTQ youth and their families from the life-threatening practice of conversion therapy, which has been rejected as ineffective and unsafe for minors by every leading medical and mental health professional organization in the country.”
Minter pointed out every other court has upheld both local and statewide prohibitions on conversion therapy as constitutional.
Nadine Smith, executive director of Equality Florida, emphasized the judge reached his conclusion based on technicalities of the ordinance, not the constitutionality of conversion therapy bans.
“What is clear from this ruling is that conversion bans that protect children from this dangerous quackery are not unconstitutional,” Smith said. “The judge asserted that the bans must be done statewide, not by municipalities. We disagree. Our local elected officials should be able to protect residence from fraudulent and dangerous con artists who put children’s lives at risk.”
The office of the city attorney in Tampa didn’t immediately respond to the Washington Blade’s request for comment on the ruling and whether the city will appeal.
Should the city decide to take that action, the case would head to the U.S. Eleventh Circuit Court of Appeals, which has jurisdiction over Florida.
Minter urged the City of Tampa to pursue the appeal, but emphasized the ruling as it stands is limited.
“Fortunately, this decision applies only to Tampa and does not affect any other Florida localities,” Minter said. “We hope that Tampa will appeal this ruling, but in the meantime, its negative impact will apply only to Tampa.”