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Md. governor, AG immune from challenge to gay 'conversion' ban

4 minute read

Maryland Governor Larry Hogan leads a news conference in Annapolis, Maryland, U.S. April 23, 2021. REUTERS/Jonathan Ernst

  • Therapist sued wrong parties, court finds
  • Panel does not address 1st Amendment claims

(Reuters) - Maryland's governor and attorney general are immune from a therapist's lawsuit challenging the state's ban on offering minors so-called conversion therapy aiming to change their sexual orientation or gender identity, a federal appeals court has ruled.

A unanimous 4th U.S. Circuit Court of Appeals panel found Tuesday that plaintiff Christopher Doyle could not sue Governor Larry Hogan and Attorney General Brian Frosh in federal court because they were not directly tasked with enforcing the law, the Youth Mental Health Protection Act of 2018.

The panel left it up to a district court to decide whether Doyle could amend his lawsuit to name Maryland's licensing board as a defendant instead.

Doyle's lawyer, Mathew Staver of Liberty Counsel, said he planned to amend the lawsuit and expected it to move quickly through the lower court and back to the 11th Circuit.

“My sense is that they are very interested in the merits,” he said. “They understand the importance of this case from a First Amendment standpoint but felt constrained.” A spokesperson for Frosh declined to comment.

Doyle filed the lawsuit in 2019, alleging that the conversion therapy ban violated his right to free speech under the 1st Amendment. He said that the law prevented him from offering treatment he claims some of his patients wanted.

U.S. District Judge Deborah Chasanow rejected the defendants' argument that they were shielded by sovereign immunity, but in September 2019 dismissed the case.

She found that administering conversion therapy was not speech protected by the 1st Amendment but rather a form of conduct directed at minors. Therapists, she noted, were free to publicly express their opinions, but were only banned from practicing a particular treatment.

Circuit Judge Julius Richardson wrote Tuesday that Chasanow erred in finding that the governor and attorney general were not immune. He said that, while the Supreme Court's 1908 decision in In re Young may allow state officials to be sued in federal court over unconstitutional laws, the officials must be directly tasked with enforcing those laws so that the federal court can enjoin them from doing so.

The Maryland law, he said, leaves enforcement to the state Board of Professional Counselors and Therapists.

Doyle "raises an interesting First Amendment question that would be a matter of first impression in this Circuit," Richardson wrote. "But we may not address that question 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, vacated all orders in the lower court and declined to rule on whether Doyle could amend his case to sue the board.

About 20 states and Washington, D.C., 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 have offered religious justifications or said it is unethical not to offer clients the option.

In November, the 11th Circuit struck down conversion therapy bans in Boca Raton and Palm Beach counties in Florida, finding it violated therapists' 1st Amendment rights.

The case is Doyle v. Hogan, 4th U.S. Circuit Court of Appeals, No. 19-2064.

For Doyle: Mathew Staver of Liberty Counsel

For Maryland: Kathleen Ellis of the Office of the Attorney General

(NOTE: This story has been updated with a comment with from Doyle's lawyer, Mathew Staver.)

Read more:

Florida bans on conversion therapy for children voided by U.S. appeals court

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.

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