Tampa Counseling Ban Struck Down

https://www.lc.org/newsroom/details/100419-tampa-counseling-ban-struck-down

Oct 4, 2019

TAMPA, FL – Today, federal Judge William F. Jung issued an order granting summary judgment to Liberty Counsel in its suit to invalidate the Tampa ordinance that prohibited licensed counselors from providing voluntary talk therapy to minors seeking help to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity. Today’s ruling permanently strikes down the ordinance, which also imposed significant monetary fines on counselors who provide this voluntary counseling. Liberty Counsel represents marriage and family therapist Robert Vazzo and his minor clients, as well as the Christian ministry, New Hearts Outreach Tampa Bay.

The court ruled that local governments do not have authority to regulate counseling because it is the prerogative of the state. The 41-page ruling states, in part:

“There is no grant of authority by the Florida Legislature to municipalities to substantively regulate healthcare treatment and discipline.”

“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. Accordingly, the Court strikes the Ordinance under the implied preemption doctrine and grants the Plaintiffs’ motion for summary judgment on Count VI.”

“The State statutory scheme for healthcare regulation leaves nothing substantive at all for municipalities to do; there is no grant or delegation at all to localities.”

“To say that the State of Florida’s regime of healthcare regulations is vast is an understatement. There seems nothing more regulated and addressed by the Florida legislative and administrative body than healthcare, and a material part of this is mental health related. In addition to its breadth and depth, this Florida regulatory scheme is uniform across each of the 400 plus municipalities in the State. In contrast, the Tampa Ordinance covers only the 114 square miles of city limits, leaving the substantive mental health therapy rules to vary depending which of the 400 plus Florida municipalities one is in, or even where one is within Hillsborough County.”

“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 Ordinance eliminates this longstanding parental right without discussion or exception—Florida already occupied this ground. Parental rights, which the Florida Supreme Court has noted are fundamental and protected by the state constitution,11 are reduced or increased within Hillsborough County, Florida, depending on whether one steps across the Tampa city line or not.”

“All of these topics such as constitutional privacy rights, parental choice, patient choice as to treatment, and the availability of non-conventional or alternative treatments show that the Legislature has occupied entirely the very wide healthcare swath, whether it is called ‘informed consent’ or ‘patient’s rights.’ No room exists in this pervasive and uniform statewide program for the more than four-hundred Florida municipalities to regulate where legislative intent resides so broadly.”

“Although the City expresses confident certitude, the City’s experts, one or both, expressly agreed with the following points: 

• • Minors can be gender fluid and may change or revert gender identity. Dkt. 192-2 at 38–40.
• • Gender dysphoria during childhood does not inevitably continue into adulthood. Dkt. 192-2 at 85–87.
• • Formal epidemiologic studies on gender dysphoria in children, adolescents, and adults are lacking. Dkt. 192-2 at 92.
• • One Tampa expert testified there is not a consensus regarding the best practices with prepubertal gender nonconforming children. Dkt. 192-2 at 120–21.
• • A second Tampa expert testified consensus does not exist regarding best practices with prepubertal gender nonconforming children, but a trend toward a consensus exists. Dkt. 192-1 at 159.
• • Emphasizing to parents the importance of allowing their child the freedom to  return to a gender identity that aligns with sex assigned at birth or another gender identity at any point cannot be overstated. Dkt. 192-2 at 123.
• • One cannot quantify or put a percentage on the increased risk from conversion therapy, as compared to other therapy. Dkts. 192-2 at 131; 192-1 at 198–99.
• • Scientific estimates of the efficacy of conversion therapy are essentially nonexistent because of the difficulties of obtaining samples following individuals after they exit therapy, defining success, and obtaining objective reassessment. Dkt. 192-1 at 136–37.
• • Based on a comprehensive review of this work, the American Psychological Association 2009 SOCE Task Force concluded that no study to date has demonstrated adequate scientific rigor to provide a clear picture of the prevalence or frequency of either beneficial or harmful SOCE outcomes. More recent studies claiming benefits and/or harm have done little to  ameliorate this concern. Dkt. 192-1 at 148.
• • No known study to date [looking at 2014 article Dkt. 192-6 at 2] has drawn from a representative sample of sufficient size to draw conclusions about the experience of those who have attempted SOCE. Dkt. 192-1 at 149.
• • No known study [looking at same 2014 article] has provided a comprehensive assessment of basic demographic information, psychosocial wellbeing, and religiosity, which would be required to understand the effectiveness, benefits and/or harm caused by SOCE. Dkt. 192-1 at 150.
• • Although research on adult populations has documented harmful effects of SOCE, no scientific research studies have examined SOCE among adolescents. Dkt. 192-1 at 153.
• • With extraordinarily well-trained counseling “in a hypothetically perfect world” it may be an appropriate course of action for a counselor to aid a gender-dysphoric child who wants to return to biological gender of birth. Dkt. 192-1 at 171–72.
• • There is a lack of published research on efforts to change gender identity among childhood and adolescents. Dkt. 192-1 at 177.
• • As of October 2015 no research demonstrating the harms of conversion therapy with gender minority youth has been published. Dkt. 192-1 at 180–81. In 2018 an article was published on youth but causal claims could not be made from that 2018 report. Dkt. 192-1 at 181.” 

Commenting on the ruling, Liberty Counsel’s Founder and Chairman Mat Staver said, “This is a great victory for counselors and clients. The city of Tampa has no authority to prohibit counselors from helping their clients achieve their goals. Regulating healthcare is above the pay grade of local municipalities. 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. This ruling also shows clearly why the other statewide laws will meet the same fate as Tampa. The First Amendment will wipe away every one of these speech-restrictive laws,” said Staver.

Liberty Counsel is a nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics. Liberty Counsel provides broadcast quality TV interviews via Hi-Def Skype and LTN at no cost.