KANSAS CITY – A proposed ban on so-called “conversion therapy” in Missouri’s Jackson County may threaten the First Amendment rights of licensed doctors and counselors who don’t affirm the county government’s views on the LGBTQ+ lifestyle, according to a Kansas City attorney.
If Jackson County’s nine-member legislature passes proposed ordinance No. 5711, it will become the first county in Missouri to ban what they call “conversion therapy” for minors, according to Fox News.
According to a county document, “conversion therapy, also known as reparative therapy, ex-gay therapy, or sexual orientation and gender identity change efforts, is a range of practices aimed at changing one’s sexual orientation or gender identity.”
Kansas City attorney Michael Whitehead – who is a member of Fellowship Church, Greenwood, a Missouri Baptist church in Jackson County – said the proposed ordinance “would be subject to challenge on First Amendment grounds.”
Michael Whitehead
“The measure would punish licensed doctors and counselors who engage in professional speech that seeks to change one’s preference of sexual orientation or gender identity,” Whitehead said. “Such content-based restrictions are probably unconstitutional, and at least would be subject to ‘strict scrutiny,’ according to the U.S. Supreme Court [SCOTUS].”
Regarding “strict scrutiny,” Whitehead explained that – according to previous SCOTUS rulings, as in NIFLA v. Becerra (2018) – anytime a government imposes “content-based regulations on professional speech,” that government risks “seeking to suppress unpopular ideas rather than to advance legitimate regulatory objectives.”
And with their proposed “conversion therapy” ban, Jackson County lawmakers are taking such a risk, Whitehead added.
“The Jackson County bill says it is regulating ‘practice or treatment’ – and it avoids using the word ‘speech’ – but it is clearly trying to regulate speech with particular content,” Whitehead said. “It prohibits speech which supports change, while it expressly permits counseling which ‘does not seek to change sexual orientation or gender identity.’ The Court has generally held that this kind of speech content regulation cannot pass ‘strict scrutiny’ and is unconstitutional.
“The County risks equal protection violations to punish counselors who work inside Jackson County, while the statute cannot apply to such counseling outside the County,” he added. “In effect, the bill usurps the responsibility of the state professional boards, and seeks to redefine professional responsibility in Jackson County only.”
According to Whitehead, the 11th Circuit Court upheld a preliminary injunction in 2019 against an ordinance similar to the one proposed in Jackson County.
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” the Court ruled in this case [Texas v. Johnson, 491 U.S. 397, 414 (1989)].
Meanwhile, the 9th Circuit Court ruled in the opposite direction, regarding a Washington state law regulating all professional counselors. (See Tingley v. Washington AG here.)
“This means that the issue may be ripe for SCOTUS to review these professional speech codes,” Whitehead said, “if Jackson County chooses to pass this bill.”