A Thomas More Society attorney gave testimony on February 8, 2021 before the City Council in Lincoln, Nebraska, in opposition to its proposed ban on so-called “conversion therapy” for 18-year-olds and under, which would allow minors to seek therapy affirming same-sex attraction or gender dysphoria, but not reducing it.

This is the same type of prohibition that New York City repealed in 2019 after being challenged in court. Thomas More Society attorney Michael McHale presented multiple reasons why it would be plainly illegal for the council to pursue the proposal in Lincoln, Nebraska.

McHale pointed out that recent judicial precedent weighs heavily against such discriminatory ordinances. In 2018, the U.S. Supreme Court expressly criticized courts that have upheld “conversion therapy” bans because they relied on the mistaken notion that “professional speech” is not entitled to First Amendment protection. In November 2020, the U.S. Court of Appeals for the 11th Circuit followed that logic in striking down a nearly identical ordinance in Boca Raton, Florida, holding that it unconstitutionally targets a particular viewpoint and is not supported by scientific literature.

McHale said that the Thomas More Society is poised to bring a similar legal challenge in Nebraska, and thus that passage of this discriminatory ordinance could cost the city hundreds of thousands of dollars in attorney fees. Like the recently invalidated ordinances in other states, McHale labeled the Lincoln proposal as “vastly overbroad” and noted that it targets speech based on its content and viewpoint in plain violation of the First Amendment.

“Courts have recently held that these types of laws clearly violate the Free Speech Clause of the First Amendment,” explained McHale. “Because the ordinance would prohibit even benign talk therapy on one particular viewpoint—therapy which is initiated at the behest of patients—it would blatantly violate the First Amendment. Indeed, the U.S. Court of Appeals for the Eleventh Circuit recently held as much in considering a nearly identical ordinance in Boca Raton, Florida. The Eighth Circuit, which oversees Lincoln, Nebraska, would likely come to the same conclusion. Therefore, if the City Council adopts this proposed ordinance, Lincoln taxpayers will likely be on the hook for hundreds of thousands of dollars in attorney fees.”

McHale added: “For similar reasons, New York City voluntarily repealed its own ban on so-called ‘conversion therapy’ after a court challenge. This lopsided ordinance would, like New York’s, restrict expression because of its message, its subject matter, and its content, which would prohibit counseling that talks about reducing same-sex attraction or overcoming gender dysphoria, but not from seeking therapy that affirms same-sex attraction or promotes gender dysphoria.”

McHale noted that the Eighth Circuit, which covers Nebraska and six other states, has already held that preventing discrimination on the basis of sexual orientation and gender identity does not justify regulating speech based on its content. That case was Telescope Media Group v. Lucero, a 2019 decision holding that the First Amendment prohibits Minnesota from forcing Christian wedding videographers to film same-sex weddings in the name of “non-discrimination.” McHale said that case would likely require the Eighth Circuit to also strike down the discriminatory Lincoln ban on therapist/patient free speech should it pass.

Testimony presented to Lincoln City Council by the Thomas More Society attorney noted the following legal concerns with Proposed Ordinance 21-18:

*It is vastly overbroad.
*It targets speech because of its content (in violation of the First Amendment).
*The Eighth Circuit Court of Appeals is especially likely to strike down this ordinance.

McHale suggested that the Lincoln City Council should follow New York City's lead and withdraw this proposal.