For more information, please contact: Cassandra K. Jackson, City Attorney, 850-891-8554

Statement of Issue

At the December 4, 2019, City Commission meeting, by consensus, the Commission directed the City Attorney to bring back for introduction an ordinance prohibiting the practice of conversion therapy on minors. Conversion therapy, also referred to as “reparative therapy,” “sexual orientation change efforts” (“SOCE”), and/or “gender identity change efforts” (“GICE”) means any counseling, practice or treatment performed with the goal of changing an individual's sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex. Proposed Ordinance No. 20-O-14 was introduced on March 11, 2020.  By unanimous vote of the City Commission, the proposed ordinance for public hearing on March 25, 2020, was amended to expand the specified definition of "LGBTQIA+." (See Attachment 1 for proposed Ordinance No. 20-O-14AA.)

Recommended Action

1. Conduct public hearing and adopt Ordinance No. 20-O-14AA.

Fiscal Impact

None known at this time.

Supplemental Material/Issue Analysis

History/Facts & Issues

At the December 4, 2019, City Commission meeting, by consensus, the Commission directed the City Attorney to bring back for introduction an ordinance prohibiting the practice of conversion therapy on minors. Conversion therapy, also referred to as “reparative therapy,” “sexual orientation change efforts” (“SOCE”), and/or “gender identity change efforts” (“GICE”) means any counseling, practice or treatment performed with the goal of changing an individual's sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.

As detailed more fully in the WHEREAS clauses of the proposed ordinance (Attachment 1), major professional associations of mental health practitioners and researchers in the United States and elsewhere for nearly 40 years have agreed that being lesbian, gay, bisexual, transgender or gender nonconforming, queer or questioning, intersex, asexual, pansexual, genderqueer, non-binary gender, or any other variation of human sexuality, gender identity or gender expression (hereinafter, “LGBTQIA+”) is not a mental disease, disorder or illness, deficiency or shortcoming.

The research also overwhelmingly demonstrates that there is no medically valid basis for practicing conversion therapy. The practice has been disavowed by medical doctors, psychiatrists and behavioral health experts who agree that it is not supported by credible evidence. It is contraindicated as a "tool" to "help" LGBTQIA+ individuals and may, in fact, put such individuals at risk of serious physical and emotional harm. The American Psychological Association's Task Force on Appropriate Therapeutic Responses to Sexual Orientation ("APA Task Force"), for example, conducted a systematic review of peer-reviewed journal literature on SOCE and issued a report in 2009, concluding that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidal ideation, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources. (Attachment 2 contains footnotes to the ordinance, detailing the voluminous research regarding the negative impacts of conversion therapy.)

The ordinance would ban the practice of conversion therapy within the City of Tallahassee on minors (i.e. persons under 18 years old) and vulnerable adults. Importantly, the ordinance does not (1) prevent mental health providers from expressing their views to patients, whether minors or adults, about conversion therapy, homosexuality, or any other topic; (2) prevent mental health providers from recommending conversion therapy to patients, whether minors or adults; (3) prevent mental health providers from administering conversion therapy to any person who is 18 years of age or older; (4) prevent mental health providers from referring minors to unlicensed counselors, such as religious leaders; prevent unlicensed providers, such as religious leaders, from administering conversion therapy to minors or adults; or (4) prevent minors from seeking conversion therapy from mental health providers in other municipalities, counties, or states, which do not prohibit such therapies already.

The ordinance further prohibits the City from using City funds or resources to conduct conversion therapy, or refer individuals for conversion therapy, or from offering any benefit to employees that specifically provides coverage for conversion therapy, or from executing a contract with any entity that conducts conversion therapy or refers individuals for conversion therapy.

The public purpose of this ordinance is to protect the health, safety and welfare of the public and, more specifically, to protect minors and vulnerable adults from being subjected to conversion therapy, as minors and vulnerable adults are not effectively protected by other means, including, but not limited to, other state statutes, local ordinances, or federal legislation.

Legal Background

At least twenty-two (22) local Florida jurisdictions have adopted ordinances prohibiting the practice of conversion therapy on minors by licensed mental health professionals. (See Attachment 3.) The proposed ordinance is substantially similar to the ones adopted by these jurisdictions.

First Amendment

These local ordinances, and similar bans that have been adopted across the country, have raised 1st Amendment concerns and generated litigation that has not yet settled the law in this area. In response to these concerns, local ordinances that have been adopted more recently specifically exclude members of the clergy from the definition of "provider." The proposed ordinance does not include this clarifying language, but it is obvious from the definition of "provider" that it does not impact members of the clergy. Also, some, though not all, of the local ordinances adopted in Florida included in their preambles language clarifying that the intent of the ordinance was not to prohibit mental health providers from expressing their views, or recommending conversion therapy, or administering conversion therapy to individuals over the age of 18. The proposed ordinance does not specifically include this clarifying language, but nothing in the ordinance prevents licensed therapists from expressing their views about conversion therapy to the public or to their clients and nothing prohibits practitioners from engaging in any form of personal expression; they remain free to discuss, endorse, criticize, or recommend conversion therapy. See Doyle v. Hogan, 411 F.Supp.3d 337, 345 (D. Md. 2019); Otto v. City of Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019) (pending review at the 11th Circuit).

Preemption

Litigation involving the conversion therapy ban has also raised preemption issues. All of Florida's local ordinances were adopted before the October 4, 2019, Federal Middle District Court decision (Vazzo v. Tampa, 2019 WL 4919302) determining that the Tampa ordinance was preempted by State law. This decision is not controlling on the City of Tallahassee, but the City of Tampa has appealed this decision to the 11th Circuit Court of Appeals, which does have controlling jurisdiction over the City of Tallahassee. The case is pending decision at the 11th Circuit. In addition, there are two bills SB-180 and HB-41, which have been filed in the Florida Legislature, which propose to prohibit conversion therapy on minors.

"Vulnerable Adults"

The proposed ordinance prohibits licensed professionals from practicing conversion therapy on minors, as well as on "vulnerable adults." None of Florida's local ordinances prohibit conversion therapy on "vulnerable adults" or on any category of individuals other than minors, but in early 2019, the District of Columbia, which had already banned conversion therapy on minors, extended the protections of its ban to include adults “under the care of guardians or conservators,” i.e. adults who have been judicially determined in a court proceeding to be incapacitated. In Florida, guardianship is governed by Ch. 744, F.S., which prescribes a comprehensive judicial process for determining whether an individual is incapacitated and whether guardianship is the least restrictive means of protecting the individual. The process protects the due process rights of individuals whose rights are impacted by guardianship.

In order to extend the reach of the proposed ordinance to adults who may require extra protection due to the infirmities of age or disability, the proposed ordinance defines "vulnerable adult" with reference to Ch. 744, F.S. Specifically, s. 744.102, F.S., defines "ward" to be "a person over whom a guardian has been appointed" and defines "plenary guardian" to be "a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property." A "vulnerable adult," for purposes of the proposed ordinance, is defined to be a ward over whom a plenary guardian has been appointed, pursuant to Ch. 744, F.S.

In summary, the proposed ordinance (Attachment 1) prohibits conversion therapy within the City limits on persons under the age of 18 and on vulnerable adults (defined with reference to Ch.744, F.S.) and prohibits the City from using its funds or resources to conduct or contract with others who conduct conversion therapy. The proposed ordinance was introduced on March 11, 2020, and amended by unanimous vote to include additional terms in the LGBTQIA+ designation used in the ordinance.

This item addresses the Strategic Plan Priority of Public Safety and specifically Objective 5A, implement proactive community-based solutions to enhance public safety.

Options

1. Conduct public hearing and adopt Ordinance No. 20-O-14AA.

2. Conduct public hearing and adopt Ordinance No. 20-O-14AA, as amended by the City Commission.
3. Conduct public hearing, do not adopt Ordinance No. 20-O-14AA, and provide staff alternative direction.

Attachments/References

1. Proposed Ordinance No. 20-O-14AA

2. Footnotes to Proposed Ordinance No. 20-O-14AA

3. Florida Jurisdictions