The Palm Beach County Commission gave preliminary approval Tuesday, Dec. 5 to an ordinance that would prohibit the practice of so-called “conversion therapy” on minors. The commissioners voted 6-1 on the item, with Commissioner Hal Valeche dissenting.
The ordinance is intended to protect the physical and psychological well-being of minors, including lesbian, gay, bisexual, transgender and/or questioning (LGBTQ) youth from exposure to risks caused by conversion therapy by state-licensed providers. Individuals not licensed by the state, such as members of the clergy, are not subject to the ban.
Assistant County Administrator Todd Bonlarron said that Palm Beach County would be the first to pass such an ordinance as a county government in Florida, although several municipalities in the county, such as Wellington, have approved similar ordinances.
A similar ordinance was brought before commissioners in Miami-Dade County recently that did not pass due to the broad nature of some of the definitions, Bonlarron said, explaining that at that particular meeting, the scope of who would be regulated was discussed, which was beyond licensed providers.
“The contentions were that under the Miami-Dade ordinance, it could actually pertain to parents counseling their children… or clergy and others who are non-licensed practitioners,” he said. “I think we have dealt with that.”
During public comment, several people spoke both for and against the proposed ordinance, including Dr. Julie Hamilton, a licensed family therapist, who asserted that the ordinance is unlawful because it violates the Florida Patients’ Bill of Rights and is outside the county’s jurisdiction.
“The State of Florida regulates the practice of any of the professions, anyone licensed by the state,” Hamilton said. “The state has already set up rules that prohibit us from harming children.”
She added that therapy is voluntary, and children cannot be forced by their parents to undergo conversion therapy.
“If a parent drags a gay or lesbian youth in and the child doesn’t want to change, the therapist can’t help them,” Hamilton said. “Therapy is voluntary. It’s not coercive. What’s harmful here is this ordinance does prohibit minors from seeking therapy if they want change.”
Dr. Rachel Needle, a licensed psychologist, said the practice of conversion therapy is based on the false premise that being gay, lesbian, bisexual or transgender is a mental disorder that needs to be cured.
“Sexual orientation and gender identity are not mental disorders or diseases, therefore any attempt to cure or suppress or change that are inherently invalid,” Needle said. “Efforts to ‘cure’ an LGBTQ person are based on theories of questionable scientific validity.”
She pointed out that the American Psychiatric Association has noted that so-called conversion therapists cannot produce any scientific evidence to substantiate their claims of a cure.
“Researchers actually found that a person’s so-called therapies aimed at changing one’s gender identity or sexual orientation can result in a number of mental health issues for minors, including shame, guilt, depression, decreased self-esteem, increased self-hatred, feelings of anger and betrayal, loss of friends, social withdrawal, problems with sexual and emotional intimacy, high-risk behaviors, confusion, self-harm, substance abuse and suicidal ideation,” Needle said. “Attempting to change one’s sexual orientation can have a devastating effect on a minor. These change efforts are guided by people’s biases and can negatively affect minors’ mental health.”
She added that a number of associations have issued statements against conversion or reparative therapy, including the American Psychiatric Association, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry and the American Academy of Pediatrics.
Commissioner Steve Abrams asked whether the ordinance is within the board’s jurisdiction, and County Attorney Denise Nieman said there are two ways that the county might be preempted from legislating in a particular area, through an expressed preemption — and there is no expressed preemption in Florida law — or through an implied preemption, which a court would have to draw from a legislative scheme.
“In this regard, you are writing on a clean slate,” Nieman said. “There has been no court in the State of Florida to address this type of question, and so I am also giving you advice based on a lack of precedents that we can refer to.”
She said the proponents of the ordinance point to language in the Florida Statutes that allows counties to protect the health, safety and welfare of children.
“They see that as a statement of the legislature’s intent not to preempt counties from legislating in this area,” Nieman said. “That’s one argument. The other side of the argument is that Florida does have a very broad Patients’ Bill of Rights and extensive legislation regarding professional associations and boards that do oversee physicians, so there is an argument to be made on both sides. There is no expressed preemption, however.”
Abrams added that he would like to see more distinction between discussion and counseling versus practices or treatment to seek to change an individual’s gender orientation or gender identity.
“If this comes back, I would like to see if we couldn’t tighten that up to prohibit the actual activity that I think is being complained of by the Human Rights Coalition, which is the actual practice or treatment of changing someone’s sexual orientation,” he said.
Commissioner Dave Kerner asked if there are any specific cases of local governments attempting to regulate aspects of psychological health not necessarily for sexual orientation therapy, and Nieman said the county commission, pursuant to its home rule charter, is allowed to enact ordinances to protect the health, safety and welfare of its citizens.
“In that light, you have the authority… to enact an ordinance that you believe is intended to protect the health and safety of minors or any citizen,” she said.
Commissioner Paulette Burdick made a motion to approve the ordinance and schedule a public hearing on Tuesday, Dec. 19.
Valeche, however, said he believes the commission would be overstepping its bounds to approve the ordinance.
“I think we’re on very dangerous ground here, and to me, this is primarily about speech, and what we’re doing is banning and criminalizing speech that we might not agree with or might find distasteful,” he said. “From what I’ve read about conversion therapy, it’s probably not a good thing, but I would certainly not be presumptuous enough to impose my non-professional opinion, and I don’t think we should be presumptuous enough to impose our non-professional opinions on a profession that’s self-regulating.”
Valeche added that he thought the ordinance would be interposing between parents and children.
“It’s certainly not the role of the county commission,” he said. “If the conversation inches into this amorphous area… then suddenly the therapist could be cited by our code enforcement officer and given a fine. I don’t know what the penalties are here, but… this is smacking of fascism to me.”
He also questioned how the ordinance would be enforced if a doctor-patient relationship is privileged information, and said he thought professional entities are better suited to regulate medical practices than legislators.
Palm Beach County Vice Mayor Mack Bernard, who seconded the motion, said there are issues with the ordinance that might need defining more narrowly, but he wanted it to move forward.
“I think that we would have time between now and Dec. 19 to address those, but we’re here to address the health, safety and welfare of our residents,” he said.
Kerner said it was important to note that commissioners were not trying to regulate speech.
“We’re not interfering with the parental relationship or the pastoral relationship,” he said. “What we are doing here, or what we may do, is regulate a profession.”
He added that regulation would be if a minor is compelled to go to therapy where he or she currently has no avenue to object, except to their parents.
“If they are compelled to go to this type therapy and they don’t agree to it, and it offends them and it hurts them… then they have the ability to petition their government,” Kerner said.
Abrams said he would support the preliminary reading of the ordinance, but that he would want to see what a final version looks like, based on some of his concerns.
Palm Beach County Mayor Melissa McKinlay said she believed sexual orientation is not a learned behavior but genetic.
“I do not believe that it is a behavior that needs to be corrected,” she said. “I think it is a behavior that our society needs to learn to live with and to accept. I am also here as a mother, and I’m also here as an advocate for children, and have been doing that, mostly in a volunteer capacity, for more than a quarter of a century.”
The first reading carried 6-1 with Valeche dissenting.
