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4th Circuit rejects challenge to Maryland conversion therapy ban

Therapist named wrong defendants, appeals court says

A federal appeals court Tuesday rejected on procedural grounds a psychotherapist’s free speech challenge to Maryland’s ban on treating youngsters with conversion therapy, a controversial practice of trying to change a client’s homosexual orientation.

The 4th U.S. Circuit Court of Appeals ruled that Christopher Doyle presented an “interesting” First Amendment issue that it cannot address yet because the state officials he sued – Gov. Larry Hogan and Attorney General Brian E. Frosh – have no specific authority to enforce the ban against him.

That authority rests with Maryland’s State Board of Professional Counselors and Therapists, which licensed Doyle but was not named by him in the lawsuit challenging the statute’s constitutionality, the 4th Circuit stated in its published 3-0 decision.

The ban is contained in the Youth Mental Health Protection Act. Hogan signed the measure into law in May 2018, making Maryland the 11th state to prohibit conversion therapy for minors.

Doyle’s attorney, Mathew D. Staver, said that he and his client will heed the 4th Circuit’s invitation to amend the complaint by naming the board as a defendant and refile the lawsuit in U.S. District Court.

“It’s very important case,’ said Staver, of Liberty Counsel, an Orlando, Florida-based Christian legal advocacy and ministry organization. “These laws allow the government to micromanage what’s said in a counseling session.”

The Maryland law defines conversion therapy as “a practice or treatment … that seeks to change an individual’s sexual orientation or gender identity” and includes “any effort to change the behavioral expression of an individual’s sexual orientation, change gender expression, or eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender.”

The state’s ban has drawn support from many medical groups, psychological associations and gay rights organizations, who submitted briefs to the 4th Circuit describing the harm conversion therapy can do to a youngster’s mental health and supporting the prohibition’s constitutionality. These groups include the American Medical Association, the American Psychological Association, the National Association of Social Workers, the Human Rights Campaign, and Lambda Legal Defense and Education Fund.

The Foundation for Moral Law, a legal advocacy group that defends the” importance of acknowledging God in law and government,” filed a brief supporting Doyle, executive director of the Washington-area, Judeo-Christian therapeutic organization Institute for Healthy Families.

Doyle initially filed suit against Hogan and Frosh in U.S. District Court for Maryland in January 2019.

In a preliminary ruling, Senior U.S. District Judge Deborah K. Chasanow ruled that Doyle could sue Hogan and Frosh based on their general authority to enforce the ban. She then upheld the law in September 2019, saying the ban on treating minors with conversion therapy did not violate Doyle’s right to express his personal views about the controversial practice.

In her ruling, Chasanow cited research and findings of professional organizations regarding conversion therapy.

“These sources indicate that conducting conversion therapy on minors could potentially harm their emotional and physical well-being and, thus, prohibiting the practice of conversion therapy on minors would abate the harmful outcomes caused by conversion therapy,” Chasanow wrote.

The law prohibits conversion therapy only when conducted by licensed practitioners on minors and bans only speech “uttered in the process of conducting conversion therapy,” the judge added.

On appeal, the 4th Circuit said Chasanow was wrong to have allowed the lawsuit to proceed against Hogan and Frosh, saying the governor’s general authority to ensure Maryland laws are faithfully executed and the attorney general’s duty to represent the licensing board does not give them specific enforcement authority regarding the ban on conversion therapy.

Because the lawsuit should have been dismissed, Chasanow’s subsequent decision on the law’s constitutionality must be vacated, the 4th Circuit added in the opinion written by Judge Julius N. Richardson and joined by Judges Paul V. Niemeyer and Diana Gribbon Motz.

Staver, Doyle’s attorney, called it likely that the district court will again uphold the law after the filing of an amended complaint.

If that occurs, “we’ll bring it back up to the (4th U.S. Circuit) Court of Appeals and if necessary to the U.S. Supreme Court,” Staver said. “Once we get to the Supreme Court, I believe we will ultimately prevail.”

The Maryland attorney general’s office, which has defended the statutory ban, declined to comment on the 4th Circuit’s ruling.

The 4th Circuit rendered its decision in Christopher Doyle v. Lawrence J. Hogan Jr. and Brian E. Frosh, No. 19-2064.


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