KANSAS CITY, Mo. – The U.S. Court of Appeals for the Eighth Circuit has reversed key portions of a federal district court ruling against two Missouri counselors who are challenging counseling censorship ordinances adopted by Kansas City and Jackson County. The 8th Circuit did so in light of the U.S. Supreme Court’s ruling against a similar Colorado law in March, in Chiles v. Salazar. Attorneys Michael Whitehead and Jon Whitehead represent the two counselors, Wyatt Bury and Pamela Eisenrich, along with attorneys from Alliance Defending Freedom, who also represented the Colorado counselor in Chiles. The case is Wyatt Bury, et al. v. City of Kansas City, et al.
In a July 2 per curiam opinion, an Eighth Circuit panel of three judges sent the case back to the U.S. District Court for the Western District of Missouri in Kansas City, where it will return to Judge Roseann Ketchmark for further proceedings. (Per curiam means “through the court” and is a short, unsigned opinion joined by all three judges.)
Bury and Eisenreich are licensed professional counselors in the Kansas City, Mo., area. They also are Christians. They challenged local ordinances that prohibit what the ordinances call “conversion therapy” with minors. The ordinances define the prohibited counseling to include efforts to change sexual orientation or gender identity, including efforts to change behaviors, gender expressions, or same-sex attractions, while expressly allowing counseling that supports gender transition or provides acceptance, support, and understanding. Kansas City also relied on a public accommodation ordinance affecting communications and counseling practices involving sexual orientation and gender identity.
The counselors brought constitutional claims against the city and county and sought a preliminary injunction. The district court granted only a narrow injunction concerning pronoun usage under Kansas City’s public accommodation ordinance, but otherwise denied the requested injunction and dismissed several claims, including the counselors’ First Amendment free speech challenge to the counseling ordinances.
While the appeal was pending, the U.S. Supreme Court decided Chiles v. Salazar, a case involving a similar Colorado counseling law. The Eighth Circuit noted that Chiles rejected Colorado’s argument that its law regulated professional conduct rather than speech. The Supreme Court held that Colorado regulated “speech as speech” and that the law triggered strict scrutiny because it regulated based on content and viewpoint. The Eighth Circuit observed that Kansas City and Jackson County had advanced the same speech-versus-conduct theory rejected in Chiles, and that the theory had played a prominent role in the district court’s ruling.
The Eighth Circuit therefore reversed the dismissal of the counselors’ First Amendment free speech claim against the counseling ordinances, reversed the partial dismissal of their First Amendment challenge to Kansas City’s public accommodation ordinance, and reversed dismissal of their vagueness challenge to the extent it supported their request for injunctive relief. The appellate court remanded the case so the district court can reconsider the complaint and preliminary injunction request in light of Chiles.
Michael Whitehead and Jonathan Whitehead continue to serve as co-counsel for the Missouri counselors, along with attorneys from Alliance Defending Freedom.
“This is an important step forward for the freedom of counselors to speak with clients in accordance with their professional judgment, their faith, and the client’s own goals,” Michael Whitehead said. “The Supreme Court has now made clear that counseling conversations are speech, not mere conduct, and government may not silence one viewpoint while enforcing the opposite viewpoint.”
The ordinances threatened the counselors with fines and even jail time. Shortly after oral argument, Kansas City repealed one of the threatening ordinances but left another on the books. Jackson County’s ordinance remains in effect.
“No government should single out views they don’t like for disfavored treatment,” said ADF Senior Counsel Bryan Neihart, who argued before the 8th Circuit on behalf of the counselors in May. “The Kansas City and Jackson County ordinances allow counselors to push kids down the dangerous path of gender transition, often leading to harmful drugs and surgeries, but they forbid counselors like Wyatt and Pamela from talking with kids to help them accept their bodies—even when that is the client’s express goal or the reason they seek the counselors’ advice. This is precisely what the U.S. Supreme Court so recently explained isn’t acceptable under the First Amendment.
“The Kansas City ordinance that forces Wyatt and Pamela to promote views on marriage, identity, and sexuality that contradict their religious beliefs is equally unacceptable, especially after the Supreme Court’s decision in another ADF case, 303 Creative v. Elenis,” Neihart added. “The 8th Circuit’s decision gives the district court the opportunity to fully uphold counselors’ freedom of speech and the freedom of families and young people to pursue counselors of their choice, and we hope it will do so.”
The case now returns to the Western District of Missouri in Kansas City, where the counselors will continue seeking protection from enforcement of the challenged ordinances while the constitutional claims proceed.
