Recent Court Decision Over Conversion Therapy Opens Pathway for New Legal Strategy on Transgender Curriculum

PJ Media’s Tyler O’Neil reported:

Otto v. Boca Raton represents a landmark case for therapy freedom. Just as pro-LGBT therapists should be allowed to use mainstream nonaversive talk therapy to help patients who want to reaffirm their LGBT identities, so Orthodox Jewish and conservative Christian therapists should be able to use the same kinds of therapy to help patients who struggle with same-sex attraction or gender confusion.

A source in the legal world, whose own child was harmed by transgender ideology, says she’s worked for three years to amass case law precedent. She wishes to remain anonymous, but she says the government, in essence, is pushing a new religion by pushing anti-scientific transgender ideology in schools, which violates the Establishment Clause of the Constitution. She tells PJ Media:

Citizens’ inherent right to observe, speak about and make decisions based upon biological reality was handed an unexpected victory in the Eleventh Circuit Court of Appeals, a federal appeals circuit that’s been known to hand down pro-transgender rulings in the past.

Although this case looks like many others–it involves a successful challenge by faith-based therapists to a Florida “anti-conversion-therapy” ban–it’s groundbreaking in that its decision in favor of the therapists was not merely based upon their faith, but on broader First Amendment grounds that apply to all of us.

That is huge.

To date, the only impact-law civil rights firms willing to take a transgender-critical stance in the courts have been organizations whose specific mission is religious exemptions–in other words, they fight for the right of people with sincerely held religious beliefs to be exempt from mandated gender speech, but they leave the rest of us to hang.

For three years I’ve amassed caselaw showing that that is NOT the only way–that the rest of us also have a right to be free of compelled participation in gender religion. Not because of religious views, but because of more fundamental First Amendment rights. And also because gender ideology is itself nonscientific and a religion that the government is forbidden from mandating under the Establishment Clause.

She goes on to say the Court also shot down a dissenting opinion by a judge who claimed that the state should mandate gender theory because it was a consensus. “Consensus actually is NOT an admissible scientific theory in federal court,” she says, “but for years our transgender-critical legal ‘allies’ have claimed there’s no point in fighting it. Indeed, they’ve gone out of their way to concede to fraudulent gender claims, like accepting ‘Aimee’ Stephens’ claim to have actually become a woman–a huge factor in losing the groundbreaking Bostock Supreme Court case decided this spring.”

Our source details several years’ worth of attempting to get a major religious rights law firm to view it from this perspective, with no success. She asserts that this is the reason many cases have lost, because they failed to make the broader First Amendment argument against compulsory participation in and compulsory belief in an anti-scientific theory—in essence, compulsory religion.

We can thank Supreme Court Justice Clarence Thomas, in part, for this new legal pathway, according to Tyler O’Neil’s report:

Lawsuits against “conversion therapy” bans received a new lease on life thanks to NIFLA v. Becerra. In that decision, Justice Clarence Thomas explicitly struck down California’s law forcing crisis pregnancy centers to advertise abortion under the argument that states can regulate “professional speech.” In striking down California’s law, Thomas referenced a case (King v. Governor of New Jersey) involving bans on sexual orientation change efforts.

In another case, Franciscan Alliance v Burwell, several state attorneys general fought an Obama-era executive fiat mandating “gender identity” protections in state health and education rules. The judge, in that case, observed that broader First Amendment and state’s rights issues applied that protected the plaintiffs beyond just the religious First Amendment issue that protected the Franciscan Alliance. In Otto, the court decided on these broader protections as well.

As these decisions continue to come down, they may open up a new pathway to fight using the entire First Amendment, not simply the concept of religious exemptions. Aggrieved parents have been rebuffed by religious rights law firms on this subject, our source says. Now that a couple of cases have been successfully argued, these legal foundations should take the lead on using all the tools in the constitutional toolbox