Governor of Maryland, AG safe from challenge to ban on homosexual “conversion”
- Therapist sued bad parties, court concludes
- The Panel does not deal with 1st Amendment claims
(Reuters) – Maryland governor and attorney general shielded from trial by therapist challenging state ban on so-called conversion therapy aimed at changing direction for minors sexual or gender identity, a federal appeals court ruled.
A unanimous U.S. Court of Appeals 4th Circuit panel found on Tuesday that plaintiff Christopher Doyle could not sue Governor Larry Hogan and Attorney General Brian Frosh in federal court because they were not directly charged to enforce the law, the Youth Mental Health Protection Act of 2018.
The panel left it up to a district court to decide whether Doyle could modify his lawsuit to name the Maryland Licensing Board as the defendant instead.
Doyle’s attorney, Mathew Staver of Liberty Counsel, and Hogan’s office did not immediately respond to a request for comment. A spokesperson for Frosh declined to comment.
Doyle filed a complaint in 2019, alleging that the ban on conversion therapy violated his right to free speech under the 1st Amendment. He said the law prevented him from offering the treatment he claimed some of his patients wanted.
U.S. District Judge Deborah Chasanow rejected the defendants’ argument that they were protected by sovereign immunity, but in September 2019 dismissed the case.
She discovered that giving conversion therapy was not a 1st Amendment protected speech, but rather a form of conduct intended for minors. Therapists, she noted, were free to express their opinions publicly, but only had a ban on performing particular treatment.
Circuit judge Julius Richardson wrote on Tuesday that Chasanow erred in concluding that the governor and attorney general were not immune. He said that while the 1908 Supreme Court ruling in In re Young may allow state officials to be prosecuted in federal court for unconstitutional laws, officials must be directly charged with enforcing these laws. laws so that the federal court can prevent them.
Maryland law, he said, leaves execution to the State Council of professional counselors and therapists.
Doyle “raises an interesting question about the First Amendment that would be a matter of first impression in this circuit,” Richardson wrote. “But we cannot address this issue because Doyle cannot sue the governor and the attorney general in federal court under these circumstances.”
The panel, which also included circuit judges Paul Niemeyer and Diana Gribbon Motz, overturned all lower court orders and declined to decide whether Doyle could modify his case to continue the council.
About 20 states and Washington, DC, ban conversion therapy for minors.
Opponents of conversion therapy, including the American Psychiatric Association, say the practice stigmatizes lesbian, gay, bisexual and transgender people, and is linked to depression, anxiety and suicide. Supporters offered religious justifications or said it was unethical not to offer the option to customers.
In November, the 11th Circuit overturned bans on conversion therapy in Boca Raton and Palm Beach counties in Florida, saying it violated 1st Amendment rights of therapists.
The case is Doyle v. Hogan, 4th United States Court of Appeals, No. 19-2064.
For Doyle: Mathew Staver of Liberty Counsel
For Maryland: Kathleen Ellis of the Attorney General’s Office
Florida bans conversion therapy for children overturned by US appeals court