The Not-So-Straight First Amendment: Why Prohibitions on Conversion Therapy for Children Survive Strict Scrutiny

Abstract

In November 2020, the United States Court of Appeals for the Eleventh Circuit, in Otto v. City of Boca Raton (Otto II), became the first federal appellate court to hold that bans on Sexual Orientation Change Efforts (“SOCE”) therapy, also known as conversion therapy, for minors are unconstitutional restrictions of freedom of speech. In reviewing the bans under the strict scrutiny standard, the Eleventh Circuit’s decision in Otto departs from the other circuits’ decisions not only in outcome but also in analysis. The Eleventh Circuit, following recent Supreme Court’s decisions, concluded that courts must apply strict scrutiny and that there was insufficient research suggesting that SOCE therapy was harmful toward children, thus invalidating the therapy bans. This Note reviews the Eleventh Circuit’s majority decision in Otto II, and argues that the court wrongly concluded that the anti-conversion therapy bans for minors fail strict scrutiny. Instead, this Note argues that anti-conversion therapy statutes are one of the rare governmental regulations that can withstand strict scrutiny analysis, and the courts must uphold them.