## Facts

- The City of Boca Raton and Palm Beach County enacted ordinances barring licensed therapists from engaging in sexual orientation change efforts (SOCE) with minors.
- The ordinances defined SOCE to include counseling intended to change a minor’s sexual orientation, reduce same-sex attractions, or change gender identity or expression.
- The ordinances applied to “purely speech-based therapy” (talk therapy) between therapist and client.
- The ordinances permitted counseling that provides support and assistance to a person undergoing gender transition.
- The local governments adopted the ordinances based on findings that SOCE poses serious health risks to minors, relying on statements from medical and mental-health organizations.
- Two licensed therapists who provided talk-therapy SOCE sued, alleging the ordinances violated the First Amendment by restricting what they could say in counseling sessions.
- The district court denied a preliminary injunction, concluding plaintiffs had not shown a substantial likelihood of success.
- Plaintiffs appealed.

## Issues

1. Whether talk-therapy SOCE bans regulate professional conduct with only incidental effects on speech, or instead regulate speech based on its content.
2. Whether the ordinances are content-based and viewpoint-based restrictions triggering strict scrutiny under the First Amendment.
3. Whether the ordinances satisfy strict scrutiny (compelling interest and narrow tailoring) sufficient to justify banning talk-therapy SOCE for minors.

## Decision

- The Eleventh Circuit reversed the denial of a preliminary injunction and remanded with instructions to enter an injunction barring enforcement against the plaintiffs.
- The court held the ordinances regulate speech, not merely professional conduct, because the prohibited “treatment” is the counselor-client conversation itself.
- The court held the ordinances are content-based because they prohibit counseling with a particular communicative purpose (changing or reducing certain attractions or identities) while allowing counseling with other purposes.
- The court held the ordinances are viewpoint-based because they permit affirming/supportive counseling (including support for gender transition) while prohibiting counseling that seeks change.
- Applying strict scrutiny, the court assumed protecting minors from harm can be a compelling interest but concluded the categorical bans were not narrowly tailored.
- The court identified less speech-restrictive alternatives (e.g., case-by-case professional discipline, malpractice remedies, or disclosure requirements).
- Judge Martin dissented, viewing the ordinances as permissible regulation of professional conduct with incidental speech effects.

## Legal Principles

- Talk therapy is speech for First Amendment purposes when the regulated “treatment” consists of communication between professional and client.
- Post-NIFLA, there is no freestanding “professional speech” category that generally receives reduced First Amendment protection; government may not recharacterize speech as conduct to avoid scrutiny.
- A law is content-based when it restricts speech because of its subject matter, purpose, or communicative aim within the regulated interaction.
- Differential treatment of counseling that affirms versus counseling that seeks change can constitute viewpoint discrimination.
- Content- and viewpoint-based speech restrictions are subject to strict scrutiny and must be narrowly tailored to a compelling governmental interest.
- Broad prophylactic bans on speech may fail narrow tailoring where less restrictive measures could address the asserted harms.

## Conclusion

The Eleventh Circuit held that the local ordinances banning licensed therapists from providing talk-therapy SOCE to minors are content- and viewpoint-based restrictions on speech and, because they were not narrowly tailored, violate the First Amendment; the court ordered preliminary injunctive relief against enforcement.


Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020)