A federal district judge has ruled that the state of Florida’s overriding authority in regulating professional health care deprives the city of Tampa from imposing municipal sanctions on licensed healthcare workers who perform so-called “conversion therapy” on minors.
Judge William F. Jung’s October 4 ruling was a startling departure from the way most courts have responded to challenges against laws cracking down on the charlatans who engage in this discredited practice. Several federal courts, including some courts of appeals, have rejected challenges based on the First and the 14th Amendments, but those cases mainly involved state laws. The challengers in the Tampa case made those same constitutional arguments, but Jung resolved the case on a state law basis.
Tampa passed its conversion therapy ban in April 2017, citing numerous professional studies discrediting the practice and contending it is harmful to minors. The ordinance also cites decisions by the Third and Ninth Circuit Courts of Appeals upholding similar statutes in New Jersey and California, respectively. A state court in New Jersey, separately, condemned the practice under its consumer fraud law.
Stating its intention to protect minors from being subjected to a potentially harmful practice, the Tampa City Council premised the ordinance on its authority to exercise police power for the public safety, health, and welfare.
Plaintiff Robert L. Vazzo, a marriage and family therapist licensed in Florida, practices conversion therapy on minors, claiming his treatment may help “reduce or eliminate same-sex sexual attractions, behaviors or identity,” and claiming it is carried out entirely with speech techniques and no coercive physical treatments. He also claimed his clients give their informed consent, though under the law minors are recognized as having only limited capacity to give such consent. Typically, it is parents wanting to “cure” their children of being gay or transgender who give consent on their children’s behalf.
Co-plaintiff David Pickup was the lead plaintiff in a case challenging California’s conversion therapy ban and claims here that he intended to get Florida certification and treat patients in Tampa. The other plaintiff, Soli Deo Gloria International, Inc., is an organization that refers individuals, including minors, for conversion therapy.
Judge Jung invoked a doctrine called “implied preemption.” In situations where the state government pervasively regulates a particular activity, it may be found to have “occupied the field” of regulating that activity. Local governments, therefore, are barred from doing the same, particularly if the local regulation conflicts in some way with the state regulation or interferes with the state’s ability to effectively regulate. Implied preemption is distinct from situations where a state constitution or a law or regulation explicitly reserves sole authority over a particular subject.
Noting that the state grants no authority to municipalities to regulate healthcare treatment and discipline, Jung found that there is “nothing local or unique to Tampa” about conversion therapy “that would suggest the statewide, uniform medical regulation regime should vary because of Tampa’s peculiarities.”
He continued, “A uniform and statewide system of healthcare treatment and practitioner discipline already exists, for sound reasons. Implied preemption is a disfavored remedy because cities have broad powers to address municipal concerns. But substantive regulation of psychotherapy is a State, not a municipal concern.”
The judge identified five areas of state authority that the Tampa ordinance “encroaches upon.” Florida’s constitution protects a broad right of privacy against government intrusion, which “suggests that government should stay out of the therapy room,” he wrote.
The other areas of encroachment, Jung found, include Florida court cases which recognize that “with very few exceptions, parents are responsible for selecting the manner of medical treatment received by their children”; the state’s statutory “Patient Bill of Rights,” which protects a patient’s right to select the course of treatment they deem best; a provision of the Florida law regulating healthcare stating that “citizens be able to make informed choices for any type of health care they deem to be an effective option for treating human disease, pain, injury, deformity, or other physical or mental condition,” and that “the health care practitioner may, in his or her discretion and without restriction, recommend any mode or treatment that is, in his or her judgment, in the best interest of the patient; and the state’s statutory doctrine of informed consent, which protects doctors against liability for performing procedures with a patient’s informed consent “so long as the substantial risks and hazards are fully disclosed and accepted.”
In effect, Jung concluded that opponents of conversion therapy must either convince the Florida medical boards that control licensing practice that they should condemn the practice or get the legislature to ban it.
Treading into controversial waters, Jung goes on to challenge the competency of the Tampa City Council to set standards for medical practice.
“With due respect for the citizen legislators on the Tampa City Council, none are skilled in mental health issues,” he wrote, “nor are any of the City’s code enforcement personnel. In contrast the Florida Department of Health, with its skilled adjudicatory bodies, is equipped to address this dynamic area of psychotherapy.”
In particular, Jung argued, “the field of gender expression is especially complex” and best left to state regulators.
Having decided the case entirely on state law grounds, Jung expressed no view regarding the constitutional arguments under the First and 14th Amendments.
Those arguments have been mainly rejected by the courts, though some uncertainty has arisen from comments made by Supreme Court Justice Clarence Thomas last year in an unrelated case, in which he challenged the view that “professional speech” — such as that used by conversion therapy practitioners — can be subjected to significant government regulation. Thomas specifically castigated the Third and Ninth Circuits for affirming such regulation in their conversion therapy rulings.
Vazzo and his co-plaintiffs are represented by lawyers from Liberty Counsel, an anti-LGBT legal advocacy organization. Jung, appointed by President Donald Trump, has been on the bench for barely a year.
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