Anything but Prideful:  Free Speech and Conversion Therapy Bans, State-Federal Action Plans, and Rooting Out Medical Fraud

October 1, 2023

At a time when conversion therapy might seem archaic to many people, this practice remains prevalent across the United States and finds legal support in the halls of federal courthouses.  In 2020, the U.S. Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton, held that two ordinances banning conversion therapy in Boca Raton and Palm Beach violated First Amendment free speech rights.  Specifically, Otto held that conversion therapy bans were content-based restrictions subject to strict scrutiny.  Conversely, the U.S. Courts of Appeals for the Third and Ninth Circuits’ prior decisions upheld conversion therapy bans under intermediate scrutiny and rational basis review, respectively.  Applying strict scrutiny to conversion therapy bans, Otto created a circuit split among the Eleventh, Third, and Ninth Circuits, casting doubt on the appropriate levels of scrutiny to which conversion therapy bans should be subjected.  Accordingly, the laws of more than twenty states stand on shaky ground.  But the harms of conversion therapy are clear, and studies supporting its efficacy are flawed; conversion therapy is dangerous and does not work.  Accordingly, to protect the LGBTQ+ community from conversion therapy, the federal government and states must carefully design their laws to avoid strict scrutiny.

This Note takes a three-fold approach, suggesting that states and the federal government reshape their laws and adopt a consumer protection model.  First, this Note formulates a model deceptive commercial practices statute, implementing civil penalties for conversion therapy on the state level.  Second, for the federal government, this Note encourages Congress to pass Representative Ted Lieu’s “Therapeutic Fraud Prevention Act.”  This Note supports the notion that the Federal Trade Commission has the statutory authority to treat conversion therapy as a “deceptive” trade or practice.  Moreover, this Note argues that—if the constitutionality of conversion therapy bans reaches the Supreme Court—the Court should treat conversion therapy as incidental to the practice of professional medicine.  Most importantly, this Note seeks to advocate for those people harmed by conversion therapy and pave the way for substantive change protecting the most vulnerable members of the LGBTQ+ community.

October 2023

No. 1