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Court strikes down bans on conversion therapy as violations of free speech

Trump-appointee judges strikes down measure in Fla. municipalities

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same-sex marriage, gay news, Washington Blade
same-sex marriage, gay news, Washington Blade
The Eleventh Circuit has ruled against bans on conversion therapy as violations of free speech.

A federal appeals court has issued a major blow against bans on conversion therapy for youth by ruling they violate the First Amendment, setting up a split within the judiciary that could lead the U.S. Supreme Court to adjudicate the issue on a nationwide basis.

In a 2-1 decision written by U.S. Circuit Judge Britt Grant, a three-judge panel on the U.S. Eleventh Circuit Court of Appeals in Atlanta determined municipal bans on conversion therapy for youth in the cities of Boca Raton and Palm Beach in Florida contravene the freedom of speech under the First Amendment.

“We understand and appreciate that the therapy is highly controversial,” Grant writes. “But the First Amendment has no carveout 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.”

Joining Grant in the opinion was U.S. Circuit Judge Barbara Lagoa, both of whom are Trump-appointed judges. Logoa was on the short-list of President Trump’s potential choices to replace the late U.S. Associate Justice Ruth Bader Ginsburg on the Supreme Court before he ended up choosing Amy Coney Barrett.

Grant takes pain to show bans on conversion therapy should be subject to strict scrutiny because they are content-based restrictions, and neither the local government’s insistence their professional regulations nor claims the speech is actually conduct can lower that bar.

“The First Amendment does not protect the right to speak about banned speech; it protects speech itself, no matter how disagreeable that speech might be to the government,” Grant writes. “And what good would it do for a therapist whose client sought SOCE therapy to tell the client that she thought the therapy could be helpful, but could not offer it? It only matters that some words about sexuality and gender are allowed, and others are not.”

The practice of 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 conversion therapy.

As a result of the decision, the three-judge panel reverses the preliminary injunction from U.S. District Judge Robin Lee Rosenberg in December upholding the bans on conversion therapy Boca Raton and Palm Beach counties. Further, the appeals court remands the case back to Rosenberg for review to deliver a new ruling consistent with guidance on the First Amendment.

Dissenting to the opinion was U.S. Circuit Judge Beverly Martin, an Obama appointee who concluded the majority’s opinion on freedom of speech is off the mark.

“The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech,” Martin writes. “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 permissibility.”

Because of the 11th Circuit decision, any state or municipality within the jurisdiction — which constitutes Alabama, Georgia and Florida — would be unable to enact bans on conversion therapy. Moreover, existing bans on conversion therapy in Florida — which exist in around two dozen municipalities, including Miami, Tampa and Wilton Manors — are unconstitutional.

Kevin Jennings, CEO of the LGBT legal group Lambda Legal, condemned the decision in a statement as “a marked departure from precedent and an incredibly dangerous decision for our youth.”

“So-called ‘conversion therapy’ is nothing less than child abuse,” Jennings said. “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.”

Jennings also pointed out the ruling came from Trump-appointed judges, accusing the Trump administration of having packed the judiciary at a time when progressives are calling for the expansion of the court under the Biden administration, which has been criticized by the other side as an attempt at court packing.

“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,” Jennings said. “The damage done by this misguided opinion is incalculable and puts young people in danger.”

Robert Otto and Julie Hamilton, who have engaged in conversion therapy with minors in Florida despite warnings against the practice, had challenged the municipal ordinances in the litigation and were represented by the Liberty Counsel, an anti-LGBTQ legal group.

Mat Staver, chair of the Liberty Counsel, hailed the decision against bans on conversion therapy in a statement as a win for free speech and predicting similar rulings would follow.

“This is a huge victory for counselors and their clients to choose the counsel of their choice free of political censorship from government ideologues,” Staver said. “This case is the beginning of the end of similar unconstitutional counseling bans around the country.”

Conversion therapy for youth is banned in D.C., Puerto Rico and 20 states: Connecticut, California, Delaware, Nevada, New Jersey, Oregon, Illinois, Vermont, New Mexico, Rhode Island, Washington State, Maryland, Hawaii, Virginia, Utah, Massachusetts, Colorado, New York, Maine and New Hampshire.

Will the cities seek Supreme Court review?

The cities of Boca Raton and Palm Beach have two options to appeal the decision and could either seek “en banc” review before the full Eleventh Circuit or petition the U.S. Supreme Court for review.

Jamie Cole, a partner with Weiss Serota Helfman Cole & Bierman P.L. and co-counsel for the City of Boca Raton, said via email to the Washington Blade the legal team is weighing its next steps.

“This is a difficult legal issue, as evidenced by the split decision,” Cole said. “The city is disappointed with the majority decision, but agrees with the well-written  and well-reasoned dissent. The city is analyzing the decision to determine how to proceed.”

Helene Hvisd, senior assistant county attorney for Palm Beach County, said the municipality “continues to review the majority and dissenting opinions as we weigh our options.”

The Eleventh Circuit decision creates a split among circuit courts on the constitutionality of bans on conversion therapy. The U.S. Third Circuit Court of Appeals and the U.S. Ninth Circuit Court of Appeals have previously upheld these bans as constitutional.

The spilt 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.

Shannon Minter, legal director of the National Center for Lesbian Rights, discouraged via email to the Washington Blade any attempt to call for resolution of the issue before 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.”

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Patrick O’Connell, acclaimed AIDS activist, dies at 67

Played key role in creating red ribbon for awareness

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Activist Patrick O’Connell was instrumental in creating the red ribbon to promote AIDS awareness. (Photo courtesy of Allen Frame; courtesy Visual AIDS)

Patrick O’Connell, a founding director of the New York City-based AIDS advocacy group Visual AIDS who played a lead role in developing the internationally recognized display of an inverted, V-shaped red ribbon as a symbol of AIDS advocacy, died on March 23 at a Manhattan hospital from AIDS-related causes, according to the New York Times. He was 67.

Visual AIDS said in a statement that O’Connell held the title of founding director of the organization from 1980 to 1995.

During those years, according to the statement and others who knew him, O’Connell was involved in the group’s widely recognized and supported efforts to use art and artist’s works to advocate in support of people with HIV/AIDS and efforts to curtail the epidemic that had a devastating impact on the art world.

Thanks to a grant from the Art Matters foundation, Visual AIDS was able to retain O’Connell as its first paid staff member in 1990, the group said in its statement.

“Armed with a fax machine and an early Macintosh computer, Patrick helped Visual AIDS grow from a volunteer group to a sustainable non-profit organization,” the statement says. “A passionate spokesperson for the organization, he helped projects like Day Without Art, Night Without Light, and the Red Ribbon reach thousands of people and organizations across the world,” the group says in its statement.

“We were living in a war zone,” the statement quoted O’Connell as saying in a 2011 interview with the Long Island newspaper Newsday. “But it was like a war that was some kind of deep secret only we knew about,” O’Connell said in the interview. “Thousands were dying of AIDS. We felt we had to respond with a visible expression,” he told the newspaper.

With O’Connell’s help, Visual AIDS in 1989 organized the first annual Day Without Art in which dozens of galleries and museums in New York and other cities covered art works with black cloths to symbolize the mourning of those who died of AIDS. Among those participating were the Brooklyn Museum, the J. Paul Getty Museum in Los Angeles, and the Metropolitan Museum of Art in New York, which replaced a Picasso painting with a “somber informational placard,” according to the New York Times.

In 1990 O’Connell helped Visual AIDS organize the first Night Without Light, which was held at the time of World AIDS Day. New York City’s skyscraper buildings, bridges, monuments, and Broadway theaters turned off their lights for 15 minutes to commemorate people who lost their lives to AIDS, the New York Times reported.

In the kickoff of its Red Ribbon Project in 1991, McConnell helped organize volunteers to join “ribbon bees” in which thousands of the ribbons were cut and folded for distribution around the city, the Times reports. Those who knew McConnell said he also arranged for his team of volunteers to call Broadway theaters and producers of the upcoming Tony Awards television broadcast to have participants and theater goers display the red ribbons on their clothes.

Among those displaying a red ribbon on his label at the Tony Awards broadcast was actor Jeremy Irons, who was one of the hosts. In later years, large numbers of celebrities followed the practice of wearing the red ribbon, and in 1993 the U.S. Postal Service issued a red ribbon stamp.

The Times reports that O’Connell was born and raised in Manhattan, where he attended Fordham Preparatory School and later graduated from Trinity College in Hartford, Conn., in 1973 with a bachelor’s degree in history. According to Visual AIDS, O’Connell served as director of the Hallwalls arts center in Buffalo, N.Y. from 1977 to 1978 before returning to New York City to work for a gallery called Artists Space.

The Times reports that O’Connell learned in the middle 1980s that he had contracted AIDS and began a regimen of early AIDS treatment with a cocktail of over 30 pills a day. His involvement with Visual AIDS, which began in 1989, ended on an active basis in 1995 when his health worsened, the Times reports.

As one of the last remaining survivors of his New York contemporaries who had HIV beginning in the 1980s, O’Connell continued in his strong support for AIDS-related causes through 2000s and beyond, people who knew him said.
Visual AIDS says it is gathering remembrances and photos for a tribute post for O’Connell on its website. It has invited people to share their memories of him by sending written contributions and images via email to: [email protected].

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Activists concerned over removal of D.C. AIDS office executive

Dept. of Health declines to explain abrupt replacement of Kharfen

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D.C. Department of Health Director Dr. LaQuandra Nesbitt abruptly dismissed Michael Kharfen from his position. (Photo via Linkedin)

The leaders of several local and national AIDS organizations have expressed concern over a decision by D.C. Department of Health Director Dr. LaQuandra Nesbitt to abruptly dismiss Michael Kharfen from his position since 2013 as Senior Deputy Director of the department’s HIV/AIDS, Hepatitis, Sexually Transmitted Disease and Tuberculosis Administration.

Under the leadership of Kharfen, who is gay, the Department of Health entity commonly referred to as HAHSTA has played a lead role in what AIDS advocacy organizations consider to be D.C.’s highly successful efforts in recent years to lower the rate of new HIV infections among city residents.

Alison Reeves, a spokesperson for Nesbitt, declined to give a reason for Kharfen’s termination, saying the DOH does not comment on “personnel matters.” Reeves said DOH official Dr. Anjali Talwalker has been named as interim Senior DOH Deputy Director for HAHSTA while a national search is being conducted for a permanent HAHSTA leader.

People who know Kharfen have said he has declined at this time to publicly comment on his departure from HAHSTA. He could not immediately be reached by the Blade for comment.

“Michael Kharfen’s departure is a real loss to HAHSTA, the D.C. community, and nationally,” said Paul Kawata, executive director of the D.C.-based National Minority AIDS Council. “It is important to remember that when Michael took over HAHSTA there were real challenges and concerns,” Kawata said.

“He transformed the agency and built strong relationships with local organizations and D.C.-based national organizations,” said Kawata. “His reasoned voice and ability to collaborate will be sorely missed.”

At least three sources familiar with HAHSTA, who spoke on condition of not being identified, have said reports have surfaced internally from DOH that director Nesbitt is planning to reorganize several DOH divisions, including HAHSTA.

The sources say people familiar with the reported reorganization expressed alarm that HAHSTA would be dismantled as a separate DOH entity, with AIDS-related programs operated by other DOH divisions.

“Some think she wants to use the funds earmarked for HAHSTA for other things,” said one of the sources. “She could be jeopardizing federal grant money for HIV and hepatitis,” the source said.

The Washington Blade raised questions surrounding Kharfen’s departure with John Falcicchio, the D.C. Deputy Mayor for Planning and Economic Development, who also serves as Mayor Muriel Bowser’s chief of staff, at a press conference on Monday on an unrelated topic. Falcicchio said he would try to arrange for mayoral spokesperson LaToya Foster to respond to the Blade’s questions about a possible DOH reorganization of HAHSTA and the issues surrounding Kharfen’s departure from DOH.

Neither Foster nor another mayoral spokesperson had responded as of late Tuesday.

“Michael Kharfen’s leaving D.C. government is a huge loss to the D.C. community and potentially puts at risk federal grants for HIV, sexually transmitted diseases, and hepatitis,” according to David Harvey, executive director for the D.C.-based National Coalition of STD Directors.

“If his departure is about a consolidation of agencies within DOH, then the community will be the loser,” Harvey said.

“We need HAHSTA to continue,” he said, adding, “The mayor should reverse this decision and reinstate Michael Kharfen.”

Sources familiar with the D.C. government’s personnel polices have said that Kharfen and other high-level officials holding positions such as that of a senior deputy director are considered “at will” employees who serve at the pleasure of the mayor and the agency head for whom they work. They can be removed for any reason or no reason, those familiar with the personnel policy say.

Before becoming the DOH Senior Deputy Director in charge of HAHSTA in 2013, Kharfen served from 2006 to 2013 as HAHSTA’s Bureau Chief for Partnerships, Capacity Building, and Community Outreach. Those who know Kharfen said in that role he is credited with working closely with a wide range of local and national organizations that provide services for people with HIV/AIDS as well as other public health organizations.

Among them is the D.C. Appleseed Center for Law & Justice, which has worked closely with HAHSTA and the DOH to develop, among other things, a plan to significantly curtail new HIV infections in the city by 2020.

Other groups working closely with Kharfen have been the Washington AIDS Partnership, the National Coalition of STD Directors, the Prevention Access Campaign, and the HIV-Hepatitis Policy Institute.

“Under Michael’s leadership, D.C. was instrumental in pioneering many new innovations in preventing and treating HIV that were later adopted by other jurisdictions,” said Carl Schmid, executive director of the D.C.-based HIV-Hepatitis Institute. “And if you look at the results, I think it demonstrates success,” Schmid said.

“I do not know any details of his departure, but I know he will be missed not only in D.C. but across the country,” Schmid told the Blade.

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Trans teacher, P.G. County schools face off in discrimination lawsuit

Officials deny charges of harassment, retaliation

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Jennifer Eller, gay news, Washington Blade
Jennifer Eller alleges the P.G. County school system subjected her to discrimination and harassment. (Photo courtesy of Lambda Legal)

Attorneys representing transgender former English teacher Jennifer Eller in a 2018 discrimination lawsuit against the Prince George’s County Public Schools and the county’s Board of Education filed a motion in federal court last week asking a judge to rule in support of Eller’s two main allegations against school officials.

The motion for partial summary judgment, filed on April 28 in U.S. District Court for the District of Maryland, calls on the court to affirm Eller’s charges that school officials acted illegally by failing to intervene when she was subjected to a hostile work environment for five years that included abuse and harassment by students, parents, fellow teachers and supervisors and retaliation by administrators.

The motion also calls on the court to affirm that Eller, 39, was forced to resign from her teaching job in 2017 because of the harassment and discriminatory action based on her gender and gender identity.

Eller’s motion for summary judgement, which calls for a ruling in her favor on the allegations, came one month after attorneys for the P.G. County Schools and the school board filed their own motion seeking summary judgment against all the allegations in Eller’s lawsuit. If U.S. Magistrate Judge Charles B. Day rules in favor of the school system’s motion, which court observers do not think will happen, it would result in the dismissal of the lawsuit.

The motion filed by Eller’s attorneys calls on the court to rule against the school system’s motion for summary judgment.

Court records show that the motions by the opposing sides in the case came after Magistrate Judge Day issued a March 26 directive requiring the two sides to attend a May 7 settlement conference in which an effort must be made to settle the case before it goes to trial.

Day’s directive, in the form of a letter to the attorneys, called for Eller and her attorneys to submit 10 business days in advance of the conference a “written demand” for what a settlement agreement should include. Day’s letter calls for P.G. school officials and their attorneys to submit five days in advance of the conference a “written offer” to Eller for what a settlement should consist of.

“For years, I was aggressively misgendered, attacked and harassed in the hallways and even in my own classroom by students, peers and supervisors,” Eller said in a statement released by the LGBTQ litigation group Lambda Legal, which, along with the D.C. law firm Arnold & Porter, is representing Eller.

“My pleas for help and for sensitivity training on LGBTQ issues for students and staff, were ignored,” Eller said. “The relentless harassment stripped me of the joy of teaching and forced me to resign,” said Eller. “It is time for Prince George’s County Public Schools to be held accountable.”

Eller charges in her lawsuit that the harassment and discriminatory action against her began in 2011 when she began presenting as female during the school year. The lawsuit says school officials initially responded to her complaints about the harassment by demanding that she stop dressing as a woman and return to wearing men’s clothes, which she refused to do.

The lawsuit says she was forced to resign from her teaching job in 2017 after being diagnosed with post-traumatic stress disorder due to the alleged abuse she faced on the job.

In addition to naming P.G. County Public Schools and the P.G. County Board of Education as defendants, the lawsuit also names as a defendant the school system’s CEO Monica Goldson.

The lawsuit charges that the school district and its administrators violated Title VII of the U.S. Civil Rights Act of 1964, Title IX of the U.S. Education Amendments of 1972, the Equal Protection Clause of the U.S. Constitution, the Maryland Fair Employment Practices Act, and the Prince George’s County nondiscrimination code.

In its official response to the lawsuit, attorneys for the school system denied Eller’s allegations and claimed the school system had in place nondiscrimination policies that covered gender identity and sexual orientation for school employees and students. The school system also states in its response that Eller may have failed to exhaust administrative remedies required prior to filing a lawsuit and that the lawsuit missed deadlines for certain legal claims.

It also says her legal claims may be disqualified because of her “voluntary resignation of employment,” an assertion disputed by Eller’s attorneys who say the resignation was forced by the abuse and harassment Eller faced on the job.

Her attorneys also point out that Eller filed a complaint against school officials in 2015 before the U.S. Equal Employment Opportunity Commission, which conducted an extensive investigation into Eller’s complaint. The attorneys note that in 2017 the EEOC issued a letter stating that there was “reasonable cause” to believe Eller had been subjected to unlawful treatment based on her sex and gender identity.

“After she filed this discrimination charge, the school administration retaliated against Ms. Eller by taking away her advanced placement English class and opening a disciplinary hearing against her that ended in no discipline,” the Lambda Legal statement says.

P.G. County school officials have declined requests from the Washington Blade for comment on Eller’s lawsuit, saying they have a policy of not commenting on pending litigation.

Among those expressing concern over the issues raised in the Eller lawsuit is College Park, Md., Mayor Patrick Wojahn, who is gay. College Park, which is home to the University of Maryland, is in Prince George’s County.

“It’s important for our county and for the entire community, especially for the kids, that the schools be places free of harassment and discrimination,” Wojahn said. “And if what Ms. Eller says is true, then it shows that the school system has fallen seriously short.”

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