City Can’t Ban Sexual Orientation / Gender Identity Change Therapy for Minors

Here’s South Carolina’s Attorney General’s opinion from last week. The Conclusion is available here. However, you will see that the A.G. admits there are differences of opinion between federal appellate courts regarding the matter:

Although courts may have come to different conclusions about whether or not an ordinance is valid, [[or statute]If conversion therapy is banned, a court would likely conclude that the First Amendment has been violated. Eleventh Circuit ruling in OttoThis opinion, concluding that the First Amendment has been violated in these circumstances, was well-reasoned and is in line with the Supreme Court decision. NIFLA. The Court in Otto concluded that “[p]eople have intense moral, religious, and spiritual views about these matters—on all sides. The First Amendment doesn’t allow communities to decide how they should counsel their neighbours about sexual orientation and gender. We are in agreement.

It NIFLAAccording to the Court, “professional speech” was not an isolated category of speech. It is still protected by law. The NIFLACourt: “Content-based regulations in the areas of medicine or public health” could be dangerous. We believe that the Columbia ordinance’s content is subject to scrutiny. The Columbia ordinance will likely be invalidated by a court if it is held to such strict standards. Our Supreme Court vacated the Hilton Head ordinance that prohibited nude and semi-nude dances as content-based. We believe that the South Carolina Court would follow our decisions and declare the Columbia ordinance null as it violates the First Amendment.

A second issue is whether local governments have the right to legislate, regulate or license an area already licensed or regulated. The Supreme Court of Canada has held consistently that the Home Rule powers of a local government preempt a local government from regulating any area “which is required to be uniform across the state.” S.C. Const. Art. VIII, § 14. VIII, SS 14. Vazzo v. City of TampaThe District Court ruled that conversion therapy regulation is not permitted at local levels because “substantive regulation” of psychotherapy is a “state, and not a municipal concern.” This analysis may lead a court to conclude that an ordinance such as the one adopted by Columbia is implicitly preempted because it attempts regulate an area of concern that covers an entire state. A court could also consider the ordinance to be illegal under state law if a $500 penalty is imposed on each offense.

Our opinion does not support or disapprove of conversion therapy, nor an ordinance prohibiting such activities. This is a policy question for the General Assembly. Our firm support for equal dignity and rights for all is a strong position. The following is advice on what we believe a court would conclude in the event that the Columbia ordinance (or one like it) is challenged. The court would likely find that the Columbia ordinance was invalid for suppressing freedom of speech, and that the ordinance attempts to exert powers that no municipality has. Additionally, we believe the Columbia ordinance to be overly broad. It may even be void because it is vague. The court would have to decide whether to cancel the ordinance, as this Office does not hold such power.

Although we respect and appreciate Columbia’s efforts in protecting equality of dignity, it cannot pass an ordinance likely to violate the federal and State Constitutions. Even for salutary purposes, the right to freedom of speech and expression cannot be compromised or violated.