Palm Beach Appellee Brief

Case: 19-10604 Date Filed: 06/10/2019 Page: 1 of 58
NO. 19-10604-A
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
ROBERT W. OTTO, PH.D., LMFT, individually and on behalf of his patients,

and JULIE H. HAMILTON, PH.D., LMFT, individually and on behalf of her
patients,
Plaintiffs/appellants,
V.
CITY OF BOCA RATON, FLORIDA, and COUNTY OF PALM BEACH,

FLORIDA.
Defendants/appellees.
Interlocutory Appeal From the United States District Court

for the Southern District of Florida
APPELLEE, COUNTY OF PALM BEACH, FLORIDA'S, BRIEF
HELENE C. HVIZD
Senior Assistant County Attorney
Counsel for Defendant/Appellee
County of Palm Beach, Florida
301 North Olive Avenue, Suite 601
West Palm Beach, Florida 33401
Florida Bar Number 868442
Tel.: (561) 355-2582
Fax.: (561) 655-7054
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
ROBERT W. OTTO, et al. v. CITY OF BOCA RATON, et al.
Case No. 19-10604-A
Appellee COUNTY OF PALM BEACH, FLORIDA files this Certificate of
Interested Persons and Corporate Disclosure Statement, listing the parties and
entities interested in this appeal, as required by Federal Rule of Appellate Procedure
26.1-1. and Eleventh Circuit Rule 26.1:
Abbott, Daniel L., trial and appellate co-counsel for defendant/appellee City ofBoca
Raton
Alliance for Therapeutic Choice, amicus in support ofPlaintiffs/Appellants
Berger, Mary Lou, defendant/appellee Palm Beach County Commissioner
Carlton Fields Jorden Burt, P.A., counsel for Equality Florida Institute Inc., amicus
in support of defendants/appellees
City ofBoca Raton, Florida, defendant/appellee
Cole, Jamie A., trial co-counsel for defendant/appellee City ofBoca Raton
Dreier, Douglas C., counsel for The Trevor Project, amicus in support of
defendants/appellees
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Case No. 19-10604-A
Dunlap, Aaron C., counsel for Equality Florida Institute Inc., amicus in support of
Equality Florida Institute, Inc., amicus in support ofdefendants/appellees
Fahey, Rachel, trial co-counsel for defendant/appellee Palm Beach County
Flanigan, Anne R., trial and appellate co-counsel for defendant/appellee City of
Boca Raton
Gannam, Roger K., trial and appellate co-counsel for plaintiffs/appellants
Gibson, Dunn & Cmtcher LLP, counsel for The Trevor Project, amicus in support
of defendants/appellees
Guedes, Edward G., appellate co-counsel for defendant/appellee City ofBoca Raton
Hamilton, Julie H., Ph.D., LMFT, plaintiff/appellant
Hvizd, Helene C., appellate counsel for defendant/appellee Palm Beach County
Kay, Eric S., appellate co-counsel for defendant/appellee City ofBoca Raton
Kerner, Dave, defendant/appellee Palm Beach County Commissioner
Liberty Counsel, trial and appellate counsel for plaintiffs/appellants
Mack, Bernard, defendant/appellee Palm Beach County Commissioner
Mayotte, Monica, defendant/appellee City ofBoca Raton Council Member
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Case No. 19-10604-A
McKinlay, Melissa, defendanVappellee Palm Beach County Commissioner
Mihet, Horatio Gabriel, trial and appellate co-counsel for plaintiffs/appellants
O'Rourke, Andrea Levine, defendant/appellee City ofBoca Raton Council Member
Otto, Robert W., Ph.D., LMFT, plaintiff/appellant
Palm Beach County, Florida, defendant/appellee
Phan, Kim, trial co-counsel for defendant/appellee Palm Beach County
Price, Max R., counsel for Alliance for Therapeutic Choice, amicus in support of
plaintiffs/appellants
Reinhart, Bruce E., United States Magistrate Judge
Rodgers, Jeremy, defendant/appellee City ofBoca Raton Deputy Mayor
Rosenberg, Robin L., United States District Judge
SDG Counseling, LLC, company ofplaintiff/appellant Robert W. Otto, Ph.D.,
LMFT
Singer, Scott, defendant/appellee City ofBoca Raton Mayor
Staver, Matthew Duane, trial and appellate co-counsel for plaintiffs/appellants
The Trevor Project, amicus in support of defendants/appellees
Thomson, Andy, defendant/appellee City ofBoca Raton Council Member
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Case No. 19-10604-A
Valeche, Hal R., defendant/appellee Palm Beach County Commissioner
Walbolt, Sylvia H., counsel for Equality Florida Institute Inc., amicus in support of
Weinroth, Robert S., defendant/appellee Palm Beach County Commissioner
Weiss, Gregg K., defendant/appellee Palm Beach County Commissioner
Weiss Serota Helfman Cole & Bierman, P.L., counsel for defendant/appellee City
ofBocaRaton
Yasko, Jennifer A., counsel for Equality Florida Institute Inc., amicus in support of
No publicly traded company or corporation has an interest in the outcome of this
appeal.
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STATEMENT REGARDING ORAL ARGUMENT
Appellee, County of Palm Beach, Florida (County), suggests that oral
argument is not necessary in this case where the District Court's Order Denying
Motion for Preliminary Injunction is amply supported with reference to record
evidence, and a correct application of the law to that evidence.

TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT..............................C-l
STATEMENT REGARDING ORAL ARGUMENT........................................... i
TABLE OF CONTENTS ....................................................................................... ii
TABLE OF CITATIONS.................................................................vii
STATEMENT REGARDING ADOPTION OF
BRIEFS OF OTHER PARTIES......................................................................... viii
STATEMENT OF SUBJECT MATTER AND
APPELLATE JURISDICTION......................................................................... viii
STATEMENT OF THE ISSUES............................................................................1
STATEMENT OF THE CASE...............................................................................2
COURSE OF PROCEEDINGS AND
DISPOSITION IN THE DISTRICT COURT ......................................................2
STATEMENT OF THE FACTS ............................................................................3
PALM BEACH COUNTY'S CONVERSION THERAPY BAN ORDINANCE.3
SUBSTANTIAL EVIDENCE OF HARMFUL EFFECTS FROM
PERFORMING CONVERSION THERAPY ON MINORS ................................4

HARM TO MINORS .............................................................................................9
COUNTY'S LEGISLATIVE RECORD INCLUDES EVIDENCE OF
HARMS OF CONVERSION THERAPY ...........................................................13
PLAINTIFFS' KNOWLEDGE OF CONVERSION THERAPY .......................15
THE COUNTY'S MECHANISM FOR ENFORCING THE ORDINANCE .....16
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION.............. 17
STATEMENT OF THE STANDARD OF REVIEW............................................... 22
SUMMARY OF ARGUMENT......................................................................................... 23
ARGUMENT AND CITATIONS OF AUTHORITY............................................... 25
I. THE DISTRICT COURT PROPERLY DENIED PLAINTIFFS' MOTION
FOR TEMPORARY INJUNCTION BECAUSE PLAINTIFFS FAILED TO
ESTABLISH A SUBSTANTIAL LIKELIHOOD OF SUCCESS AS TO THEIR
FIRST AMENDMENT CHALLENGE TO THE COUNTY ORDINANCE
(RESTATED).....................................................................................................^
PRELIMINARY INJUNCTION STANDARD ...................................................26
STANDARD OF REVIEW..................................................................................27
PRELIMINARY MATTER.................................................................................27
COUNTY ORDINANCE REGULATES PROFESSIONAL CONDUCT TTIAT

INCIDENTALLY DEVOLVES SPEECH............................................................28
COUNTY'S ORDINANCE WITHSTANDS INTERMEDIATE AND STRICT
SCRUTINY..........................................................................................................30
COUNTY'S COMPELUNG INTEREST IN PROTECTING MINORS ...........31
COUNTY ORDINANCE IS NARROWLY TAILORED ...................................33
COUNTY ORDINANCE IS NOT VIEWPOmT-BASED .................................36
II. THE DISTRICT COURT PROPERLY DENIED PLAINTIFFS'
MOTION FOR TEMPORARY INJUNCTION BECAUSE PLAINTIFFS
FAILED TO ESTABLISH A SUBSTANTIAL LIKELIHOOD OF SUCCESS
AS TO THEIR PRIOR RESTRAINT CHALLENGE TO THE COUNTY
ORDINANCE (RESTATED)............................................................................................ 39
PRELIMINARY INJUNCTION STANDARD AND STANDARD OF REVIEW
.39
COUNTY ORDINANCE IS NOT AN UNCONSTITUTIONAL PRIOR..........40
RESTRAINT........................................................................................................40
III. THE DISTRICT COURT PROPERLY DENIED PLAINTIFFS'
MOTION FOR TEMPORARY INJUCTION BECAUSE PLAINTIFFS
IV
AS TO THEIR VAGUENESS CHALLENGE TO THE COUNTY
ORDINANCE (RESTATED)............................................................................................ 40
.40
THE COUNTY ORDWANCE IS NOT VAGUE ...............................................41
IV. THE DISTRICT COURT PROPERLY DENIED PLAINTIFFS'
FAILED TO ESTABLISH IRREPARABLE HARM AS TO THEIR
PREEMPTION CHALLENGE TO THE COUNTY ORDINANCE
(RESTATED)....................................................................................................,^^
.42
NO IRREPARABLE HARM ESTABLISHED ...................................................42
CONCLUSION...........,,.....................................................................................,...^
CERTIFICATE OF COMPLIANCE............................................................................. 43
CERTIFICATE OF SERVICE......................................................................................... 44
TABLE OF CITATIONS
Cases
American Booksellers v. Webb, 919F.2d 1493 (llth Cir. 1990)..................... 18,23
Bell v. 0-^ o/r^terPar/c, 745 F.3d 1318 (llth Cir. 2014)...................................39
Collins v. Texas, 223 U.S. 288 (1912) .....................................................................32
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) ....................................................29
Frejlach v. Butler, 573 F.2d 1026 (8th Cir. 1978)...................................................42
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).......................................29
Keeton v. Anderson-Wiley, 664 F.3d 865 (llth Cir. 2011) .....................................38
King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014)...............................28
League of Women Voters v. Cobb, 447 F. Supp. 2d 1314 (S.D. Fla. 2006) ............27
Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001)............................................29
McCullen v. Coakley, 134 S. Ct. 2518 (2014).........................................................35
McDonald's Corp v. Robertson, 147 F.3d 1301 (llth Cir. 1998).................... 23, 27
NAACP v. Button, 371 U.S. 415 (1963)...................................................................29
National Inst ofFam. & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018).. 28, 29
New York v.Ferber,45SV.S. 747 (19S2)..............................................................32
Northeast Fla. Chapter of the Ass'n of Gen. Contractors of Am. V. Jacksonville,

896 F.2d 1283 (llth Cir. 1990)..................................................................... 19, 42
Ohralikv. Ohio State Bar Assn., 436V. S. 447 (197?,')...........................................2S
Packingham v. North Carolina, 137 S. Ct. 1730 (2017).........................................38
VI
Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014).....................................................28
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992)...... 28, 29
R. A. V. v. St. Paul, 505 U.S. 377 (1992).................................................................37
Reedv. Town of Gilbert, 135 S. Ct. 2218 (2015) ....................................................36
Rumsfeldv. Forum for Academic and Institutional Rights, Inc.,

547 U.S. 47 (2006) ...............................................................................................30
Sable Commc 'ns ofCal., Inc. v. FCC, 492 U.S. 115 (1989) ...................................31
Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000)...................................... 22, 26, 27
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) .....................................................30
Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994)....................................................39
Virginia v. Black, 538 U.S. 343 (2003) ...................................................................36
Wollschlaeger v. Governor, 848 F.3d 1293 (llth Cir. 2017)..................... 19, 29, 37
Rules
Fed. R. App. P. 32(a)(7)...........................................................................................43
OTHER AUTHORITIES
U.S. Const. amend 1......................................................................................... passim
VII
STATEMENT REGARDING ADOPTION OF
BRIEFS OF OTHER PARTIES
The County adopts the Statement of the Case, Standard of Review, Summary
of Argument, Argument, and Conclusion portions of the Brief of Co-Appellee, the
City of Boca Raton (City). The Ordinances enacted by Appellees are virtually
identical in their terms, except for the amount of fine imposed for violation of the
Ordinances.
STATEMENT OF SUBJECT MATTER AND
APPELLATE JURISDICTION
The United States District Court for the Southern District of Florida had
jurisdiction over the eight-count complaint filed by Drs. Otto and Hamilton
(Plaintiffs) alleging Federal and State law claims pursuant to 28 U.S.C. §§ 1331,
1343, and 1367 (2017).
The Southern District denied Plaintiffs' Mfotion for Preliminary Injunction on
February 13, 2019, and Plaintiffs timely filed their Notice of Appeal that same day
(App. Vol. XI, DE 141,142, pgs. 76-139).! This Court has jurisdiction to review
1 Appellants' appendix is cited "App." with the corresponding volume number,

docket number, and pdf page number. Appellee, The County of Palm Beach,
Florida's, appendix is cited "Co. App." followed by the docket number and pdf page
Vlll
the interlocutory Order Denying Plaintiffs' Motion for Preliminary Injunction
pursuant to 28 U.S.C. § 1292(a) (2018).
number. The citation "Co. App." is used to differentiate between the County's
supplemental appendix, and the supplemental appendix of co-appellee. The City of
Boca Raton.
11
STATEMENT OF THE ISSUES
I. WHETHER THE DISTRICT COURT PROPERLY DENIED
PLAINTIFFS' MOTION FOR TEMPORARY INFUNCTION BECAUSE
PLAINTIFFS FAILED TO ESTABLISH A SUBSTANTIAL LIKELIHOOD
OF SUCCESS AS TO THEIR FIRST AMENDMENT CHALLENGE TO
THE COUNTY ORDINANCE (RESTATED).
II. WHETHER THE DISTRICT COURT PROPERLY DENIED
PLAINTIFFS' MOTION FOR TEMPORARY INJUNCTION BECAUSE
OF SUCCESS AS TO THEIR PRIOR RESTRAINT CHALLENGE TO THE
COUNTY ORDINANCE (RESTATED).
HI. WHETHER THE DISTRICT COURT PROPERLY DENIED
PLAINTIFFS' MOTION FOR TEMPORARY INJUCTION BECAUSE
OF SUCCESS AS TO THEIR VAGUENESS CHALLENGE TO THE
COUNTY ORDINANCE (RESTATED).
IV. WHETHER THE DISTRICT COURT PROPERLY DENIED
PLAINTIFFS' MOTION FOR TEMPORARY INJUNCTION BECAUSE

PLAINTIFFS FAILED TO ESTABLISH IRREPARABLE HARM AS TO
THEIR PREEMPTION CHALLENGE TO THE COUNTY ORDINANCE
(RESTATED).
STATEMENT OF THE CASE
COURSE OF PROCEEDINGS AND
DISPOSITION IN THE DISTRICT COURT
Plaintiffs filed an eight-count complaint in the United States District Court for
the Southern District of Florida, alleging, among other claims, that the Defendants'
ordinances banning the practice of conversion therapy on minors were violative of
the First Amendment (App. Vol. I, DE 1). Plaintiffs moved for a preliminary
injunction seeking to temporarily and preliminarily enjoin Palm Beach County and
the City of Boca Raton from enforcing their respective ordinances banning the
practice of conversion therapy on minors (App. Vol. I, DE 8).
Following a full-day hearing, the District Court entered its sixty-page Order
Denying Plaintiffs' Motion for Preliminary Injunction, and Plaintiffs timely filed
their notice of appeal from that interlocutory order (App. Vol. XI, DE 141,142).
STATEMENT OF THE FACTS
Plaintiffs' Statement of the Facts omits significant facts before the District
Court supporting that Court's Order Denying Plaintiffs' Motion for Preliminary
Injunction.
The evidence of record revealed the following facts, as outlined for the
District Court in the County's Proposed Findings of Fact and Conclusions of Law
Concerning Plaintiffs' Renewed Motion for Preliminary Injunction (Co. App., DE
132).
PALM BEACH COUNTY'S CONVERSION THERAPY BAN ORDINANCE
On December 19, 2017, the County passed Ordinance 2017-046 which
banned Providers from engaging in "conversion therapy" with minors, where
conversion therapy was defined as "the practice of seeking to change an individual's
sexual orientation or gender identity, including but not limited to efforts to change
behaviors, gender identity, or gender expressions or to eliminate or reduce sexual or
romantic attractions or feelings toward individuals of the same gender or sex" (App.
Vol. II, DE 121-1, pg. 109). "Conversion therapy," "does not include counseling
that provides support and assistance to a person undergoing gender transition, or
counseling that: provides acceptance, support, and understanding of a person or

facilitates a person's coping, social support, and identity exploration and
development, including sexual-orientation-neutral interventions to prevent or
address unlawful conduct or unsafe sexual practices; and does not seek to change an
individual's sexual orientation or gender identity." (App. Vol. II, DE 121-1, pg.
109).
The Ordinance does not "prevent mental health providers from speaking to
the public about [sexual orientation change efforts] SOCE; expressing their views to
patients; recommending SOCE to patients; administering SOCE to any person who
is 18 years of age or older; or referring minors to unlicensed counselors, such as
religious leaders." (App. Vol. II, DE 121-1, pgs. 107-08). Furthermore, the
Ordinance does not prevent "unlicensed providers, such as religious leaders, from
administering SOCE to children or adults" or "minors from seeking SOCE from
mental health providers in other political subdivisions" outside of Palm Beach
County. (App. Vol. II, DE 121-1, pg. 108).
SUBSTANTIAL EVIDENCE OF HARMFUL EFFECTS FROM

PERFORMING CONVERSION THERAPY ON MINORS
In the "whereas" clauses of the Ordinance, the County summarized the
findings of several scientific and professional organizations (App. Vol. II, DE 121-
4
1, pgs. 105-07). The County reasonably found that the research was
"overwhelming" and "demonstrated] that sexual orientation and gender identity
change efforts can pose critical health risks to lesbian, gay, bisexual, transgender or
questioning persons." (App. Vol. II, DE121-1, pg. 108).
In 1993, the American Academy of Pediatrics stated, "Therapy directed
specifically at changing sexual orientation is contraindicated, since it can provoke
guilt and anxiety while having little or no potential for achieving changes in
orientation." (Co. App., DE121-12, pg. 237).
The 2009 American Psychological Association ("APA") task force report
noted:
Although the recent studies do not provide valid causal evidence of the
efficacy of SOCE or of its harm, some recent studies document that
there are people who perceive that they have been harmed through
SOCE (Beckstead & Morrow, 2004; Nicolosi et al., 2000; Schaeffer et
al., 2000; Schroeder & Shidlo, 2001; Shidlo & Schroeder, 2002; G.
Smith et al., 2004), just as other recent studies document that there are
people who perceive that they have benefited from it (Beckstead &
Morrow, 2004; Nicolosi et al., 2000; Pattison & Pattison, 1980;
Schaeffer et al., 2000; Spitzer, 2003). Among those studies reporting
on the perceptions of harm, the reported negative social and emotional
consequences include self-reports of anger, anxiety, confusion,
depression, grief, guilt, hopelessness, deteriorated relationships with
family, loss of social support, loss of faith, poor self-image, social
isolation, intimacy difficulties, intrusive imagery, suicidal ideation,
self-hatred, and sexual dysfunction. ... Many participants in studies by
Beckstead and Morrow (2004) and Shidlo and Schroeder (2002)
described experiencing first the positive effects and then experiencing
or acknowledging the negative effects later.
* * *
However, studies from both periods indicate that attempts to change , '
sexual orientation may cause or exacerbate distress and poor mental
health in some individuals, including depression and suicidal thoughts.
The lack of rigorous research on the safety of SOCE represents a
serious concern, as do studies that report perceptions of harm (cf.
Lilienfeld, 2007).
(App. Vol. I, DE 85-5, pg.165).
The APA Council of Representatives adopted, "Appropriate Affirmative
Responses to Sexual Orientation Distress and Change Efforts," which stated:
Although sound data on the safety of SOCE are extremely limited,

some individuals reported being harmed by SOCE. Distress and
depression were exacerbated. Belief in the hope of sexual orientation
change followed by the failure of the treatment was identified as a
significant cause of distress and negative self-image (Beckstead &
Morrow, 2004; Shidlo & Schroeder, 2002).
Although there is insufficient evidence to support the use of

psychological interventions to change sexual orientation, some
individuals modified their sexual orientation identity (i.e., group
membership and affiliation), behavior, and values (Nicolosi et al.,
2000). They did so in a variety of ways and with varied and
unpredictable outcomes, some of which were temporary (Beckstead &
Morrow, 2004; Shidlo & Schroeder, 2002). Based on the available data,
additional claims about the meaning of those outcomes are
scientifically unsupported.
(Co.App.DE121-15,pg.245).
The Pan American Health Organization denounced conversion therapy:
6
"'Reparative' or 'conversion therapies' have no medical indication and represent a
severe threat to the health and human rights of the affected persons. They constitute
unjustifiable practices that should be denounced and subject to adequate sanctions
and penalties." (Co. App. DE121-19, pg. 253).
The American Psychoanalytic Association also warned against conversion
therapy for sexual orientation and gender identity:
Psychoanalytic technique does not encompass purposeful attempts to

"convert," "repair," change or shift an individual's sexual orientation,
gender identity or gender expression. Such directed efforts are against
fundamental principles ofpsychoanalytic treatment and often result in
substantial psychological pain by reinforcing damaging internalized
attitudes.
(Co. App. DE 121-16, pg. 250).
The American Psychiatric Association echoed these concerns: "The potential
risks of "reparative therapy" are great and include depression, anxiety, and self-
destructive behavior, since therapist alignment with societal prejudices against
homosexuality may reinforce self-hatred already experienced by the patient." (Co.
App. DE 121-13, pg. 242).
In 2015, the Department of Health and Human Services' Substance Abuse and
Mental Health Services Administration ("SAMHSA") issued a report on efforts to
change both sexual orientation and gender identity. (App. Vol. II, DE 85-12).
7
SAMHSA stated:
Lesbian, gay, and bisexual orientations are normal variations of human

sexuality and are not mental health disorders; therefore, treatment
seeking to change an individual's sexual orientation is not indicated.
Thus, behavioral health efforts that attempt to change an individual's
sexual orientation are inappropriate. In 2009, the APA Taskforce on
Appropriate Therapeutic Responses to Sexual Orientation Change
Efforts conducted a thorough review of peer-reviewed literature
published on conversion therapy. The APA Taskforce concluded that
no methodologically-sound research on adults undergoing conversion
therapy has demonstrated its effectiveness in changing sexual
orientation. There have been no studies on the effects of conversion
therapy on children, though adults' retrospective accounts of their
experiences of conversion therapy during childhood or adolescence
suggests that many were harmed (American Psychological Association,
2009). No new studies have been published that would change the
conclusions reached in the APA Taskforce's 2009 review.
Given the lack of evidence of efficacy and the potential risk of serious
harm, every major medical, psychiatric, psychological, and
professional mental health organization, including the American
Psychological Association, the American Psychiatric Association, the
National Association of Social Work, the Pan American Health
Organization, and the American Academy of Child and Adolescent
Psychiatry, has taken measures to end conversion therapy efforts to
change sexual orientation.
(App. Vol. II, DE 85-12, pgs. 37-38).
Regarding efforts to change gender identity, SAMHSA reported:
There is a lack of published research on efforts to change gender

identity among children and adolescents; no existing research supports
that mental health and behavioral interventions with children and
adolescents alter gender identity.
It is clinically inappropriate for behavioral health professionals to have

a prescriptive goal related to gender identity, gender expression, or
sexual orientation for the ultimate developmental outcome of a child's
or adolescent's gender identity or gender expression.
Mental health and behavioral interventions aimed at achieving a fixed .

outcome, such as gender conformity, including those aimed at changing
gender identity or gendef expression, are coercive, can be harmful, and
should not be part of treatment.
(App. Vol. II, DE 85-12, pg. 26).
In 2012, the American Academy of Child and Adolescent Psychiatry
("AACAP") discussed the harm of seeking to change a child's gender identity:
Similarly, the possible risk that children may be traumatized by

disapproval of their gender discordance must be considered. Just as
family rejection is associated with problems such as depression,
suicidality, and substance abuse in gay youth, the proposed benefits of
treatment to eliminate gender discordance in youth must be carefully
weighed against such possible deleterious effects.
Given the lack of empirical evidence from randomized, controlled trials

of the efficacy of treatment aimed at eliminating gender discordance,
the potential risks of treatment, and longitudinal evidence that gender
discordance persists in only a small minority of untreated cases arising
in childhood, further research is needed on predictors of persistence and
desistence of childhood gender discordance as well as the long-term
risks and benefits of intervention before any treatment to eliminate
gender discordance can be endorsed.
(App. Vol. VII, DE121-17, pg. 185).
HARM TO MINORS
The sources cited in the County's Ordinance noted the specific harm of
9
conversion therapy performed on minors. The American Academy of Child and
Adolescent Psychiatry specifically discussed the harm to minors:
Psychiatric efforts to alter sexual orientation through "reparative

therapy" in adults have found little or no change in sexual orientation,
while causing significant risk of harm to self-esteem.
* * *
There is no empirical evidence that adult homosexuality can be

prevented if gender nonconforming children are influenced to be more
gender conforming. Indeed, there is no medically valid basis for
attempting to prevent homosexuality, which is not an illness. On the
contrary, such efforts may encourage family rejection and undermine
self-esteem, connectedness, and caring, which are important protective
factors against suicidal ideation and attempts. ... Given that there is no
evidence that efforts to alter sexual orientation are effective, beneficial,
or necessary, and the possibility that they carry the risk of significant
harm, such interventions are contraindicated.
(App. Vol. VII, DE121-17, pgs. 183-84).
The American College of Physicians also stated:
Available research does not support the use ofreparative therapy as an

effective method in the treatment ofLGBT persons. Evidence shows
that the practice may actually cause emotional or physical harm to
LGBT individuals, particularly adolescents or young persons. Research
done at San Francisco State University on the effect of familial attitudes
and acceptance found that LGBT youth who were rejected by their
families because of their identity were more likely than their LGBT
peers who were not rejected or only mildly rejected by their families to
attempt suicide, report high levels of depression, use illegal drugs, or
be at risk for HIV and sexually transmitted illnesses [.]
(Co. App. DE121-22, pg. 270).
10
In 2014, the American School Counselor Association stated, "Professional
school counselors do not support efforts by licensed mental health professionals to
change a student's sexual orientation or gender as these practices have been proven
ineffective and harmful (APA, 2009)." (Co. App. DE121-20, pg. 257).
The American Psychological Association task force reported that:
[It] found no empirical evidence that providing any type of therapy in

childhood can alter adult same-sex orientation ... [and] the theories that
such efforts are based on have not been corroborated by scientific
evidence or evaluated for harm. Thus, [it] recommend[ed] that
[licensed mental health providers] LMHP avoid such efforts and
provide instead multicultural, client-centered, and affirmative
treatments that are developmentally appropriate (Perrin, 2002).
* * *
SOCE that focus on negative representations of homosexuality and lack

a theoretical or evidence base provide no documented benefits and can
pose serious harm through increasing sexual stigma and providing
inaccurate information....
(App. Vol. I, DE 85-5, pg. 202). This statement was not limited to aversive or
involuntary treatment. The task force also reported that: . "Children and
adolescents are often unable to anticipate the future consequences of a course of
action and are emotionally and financially dependent on adults. Further, they are in
the midst of developmental processes in which the ultimate outcome is unknown.
Efforts to alter that developmental path may have unanticipated consequences [.]"
11
(App. Vol. I, DE 85-5, pg. 200).
SAMHSA also advised that, "[IJnterventions that attempt to change sexual
orientation, gender identity, gender expression, or any other form of conversion
therapy are also inappropriate and may cause harm. Informed consent cannot be
provided for an intervention that does not have a benefit to the client." (App. Vol.
II, DE 85-12, pg. 40).
On the topic of self-determination, the APA task force reported:
Self-determination is the process by which a person controls or

determines the course of her or his own life (according to the Oxford
American Dictionary, 2007). LMHP maximize self-determination by
(a) providing effective psychotherapy that explores the client's
assumptions and goals, without preconditions on the outcome; (b)
providing resources to manage and reduce distress; and (c) permitting
the client to decide the ultimate goal of how to self-identify and live out
her or his sexual orientation. Although some accounts suggest that
providing SOCE increases self-determination, we were not
persuaded by this argument, as it encourages LMHP to provide
treatment that has not provided evidence of efficacy, has the
potential to be harmful, and delegates important professional
decisions that should be based on qualified expertise and training—
such as diagnosis and type of therapy. Rather, therapy that increases
the client's ability to cope, understand, acknowledge, and integrate
sexual orientation concerns into a self-chosen life is the measured
approach.
(App. Vol. I, DE 85-5, pg. 129) (emphasis supplied).
12
COUNTY'S LEGISLATIVE RECORD INCLUDES EVIDENCE OF

HARMS OF CONVERSION THERAPY
In the process of researching the Ordinance, the Assistant County Attorney
who drafted the County's Ordinance found anecdotal evidence of a teenager, albeit
outside of Florida, who committed suicide after receiving conversion therapy.
(App. Vol. VI, DE 121-9, pgs. 33-4).
At the first reading of the County Ordinance, on December 5, 2017, the
County's Ordinance was discussed and debated for over two and one-half hours, and
mental health professionals spoke out against conversion therapy. (Co. App. DE
121-2). A therapist informed the County that:
As a therapist, the first rule of thumb is to do no harm. Conversion

therapy not only violates this ethic, but it implies that a therapist has the
ability to change one's sexual orientation. As great as we are, therapists
are far and wide unable to pinpoint the therapeutic intervention which
can make an individual change this part of who they are....
(Co. App. DE 121-2, pg. 53). A psychologist and certified sex therapist advised
the County that:
Research has actually found that efforts and so-called therapies aimed
at changing one's gender, identity, or sexual orientation can result in a
number for mental health issues for minors; including shame, guilt,
depression, decreased self-esteem, increased self-hatred, ... feelings of
anger and betrayal, loss of friends, social withdrawal, problems in
sexual and emotional intimacy, high-risk behaviors, confusion, self-
13
harm, substance abuse, and suicidal ideation.
(Co. App. DE 121-2, pgs. 15-8).
The County heard from the president and founder of the Palm Beach County
Human Rights Council that his organization had received two complaints about
minors who were being subjected to conversion therapy. (App. Vol. VII, DE 126-2,
pgs. 240-43; App. Vol. VII, DE 126-3, pgs. 244-50).
The possible under-representativeness of these two complaints was
acknowledged by Commissioner Berger, who shared an example she read in an
article wherein it took four years for a 19 year old to speak out about what happened
to him in conversion therapy. (Co. App. DE 121-3, pgs. 196-97). Commissioner
Berger explained her "strong feeling" that "there's a young man or young lady who
wants to come forward with a complaint." Id.
The County received emails from individuals writing in support of the
Ordinance, one of whom had "personally heard and been moved by the horrific
stores of friends that have been subject to these cruel and inhumane methods," (Co.
App. DE 121-6, pg. 233), and another who stated that "[c]onversion therapy has been
demonstrated in research to be ineffective and sometimes profoundly harmful to
children who receive it." (Co. App. DE 121-44, pgs. 283-96).
The second reading of the County Ordinance took place on December 19,
14
2017, and the Ordinance was discussed and debated for an additional nearly two
hours (Co. App. DE 121-3). During the second reading the County heard from a
local licensed clinical social worker and a family therapist who had been practicing
for more than 30 years. (Co. App. DE121-3, pgs. 126-28). He advised the
County that he had "worked with youth and families [his] entire career" and that
"conversion therapy" was "an extremely dangerous and unethical practice that does
not work." Id. at pg. 125.
Local providers and members of the public gave the County reason to believe
that "conversion therapy" was being practiced on minors in its jurisdiction. (Co.
App. DE121-2, pgs. 21-2; DE 121-3, pgs. 118,156,157,158-9).
PLAINTIFFS' KNOWLEDGE OF CONVERSION THERAPY
Plaintiffs abide by the code of ethics issued by the American Association for
Marriage and Family Therapy ("AAMFT"). (App. Vol. V DE 121-8, pg. 72).
The AAMFT webpage, states "positions on couples and families," including:
From time to time AAMFT receives questions about a practice known

as reparative or conversion therapy, which is aimed at changing a
person's sexual orientation. As stated in previous AAMFT policy, the
association does not consider homosexuality a disorder that requires
treatment, and as such, we see no basis for such therapy. AAMFT
expects its members to practice based on the best research and clinical
evidence available.
15
(Co. App. DE121-23, pg. 277).
The continuing learning education accrediting body for the Florida board that
licenses marriage and family therapists revoked certification for credits from one of
Hamilton's presentations that the board said was about "conversion therapy." (App.
Vol. V, DE121-8, pgs. 102-04).
Plaintiffs admitted they cannot change their clients' sexual orientation. (App.
Vol. IV, DE 121-8, pg. 139 ("I can't change your attractions"); App. Vol. Ill,
DE 121-7, pg. 49 ("I can't change any client.")).
Otto does not practice "conversion therapy" (App. Vol. Ill, DE121-7, pg.
181). He does not attempt and in fact cannot change a client's sexual orientation.
(App. Vol. Ill, DE121-7, pgs. 48-50).
Both Plaintiffs Imow what "conversion therapy" is and what it means to "seek
to change" a minor's sexual orientation or gender identity. (App. Vol. Ill, DE 121-
7, pgs. 48-50, 181; App. Vol. IV, DE121-8, pgs. 99-100,142-43,146-47).
THE COUNTY'S MECRANISM FOR ENFORCING THE ORDINANCE
The County's five senior Code Enforcement Officers would handle any
complaints made to the County about the practice of conversion therapy. (App.
16
Vol. VI, DE 121-9, pgs. 224-26). The complaint could come from anyone: a child,
a parent, a friend. (App. Vol. VII, DE 121-9, pg. 17). The officers would receive
the complaint, collect all available evidence and determine, based on the evidence
they collected, whether there was evidence of a violation of the Ordinance. Id. at
18. If evidence of a violation existed, the code enforcement officer would bring a
notice of violation of the Ordinance before a special master. (App. Vol. VI, DE
121-9, pg. 240).
The special master would hear evidence from both sides, the County and the
alleged violator, and determine whether the evidence shows that the alleged violator
had engaged in the practice of conversion therapy as defined by the Ordinance.
(App. Vol. VII, DE 121-9, pg.12).
The ultimate decider of fact in the code enforcement process is the special
master. (App. Vol. VI, DE 121-9, pgs. 240-41).
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
The District Court denied Plaintiffs' Motion for Preliminary Injunction noting
initially that the case presented "a conflict between one of society's most cherished
rights - freedom of expression - and one of the government's most profound
obligations - the protection of minors. American Booksellers v, Webb, 919 F.2d
17
1493, 1495 (llth Cir. 1990) (citation omitted)." (App. Vol. XI, DE 141,pg.78).
The Court summarized the issue: "whether Defendants can prohibit the licensed
therapists from administering SOCE therapy to minors where the available medical
and subject matter literature concludes that the therapy is harmful to minors." Id.
The Court noted its conclusion that Plaintiffs failed to satisfy their burden of
showing that the ordinances violated the First Amendment. Id. at 79. The Court
concluded that the law was unsettled as to which level of scrutiny should apply to
the facts of the case, yet it "analyze[d] the challenged ordinances through the lenses
of all three methods of review". Id. at 79-81. The Court noted the compelling
interest underlying the ordinances:
Regardless of the level of review applied to the ordinances, the court

concludes that Defendants have identified a compelling interest in
protecting the safety and welfare of minors. Protecting minors may
be the paradigm example of a compelling interest. Defendants have
pointed to and relied upon extensive credible evidence of the damage
that conversion therapy inflicts. This body of information comes from
well-known research organizations and subject matter experts.
Id. at 80.
The District Court began its analysis by concluding that Plaintiffs had
standing to challenge the ordinances, though they did not have standing to
argue on behalf of their clients, a ruling Plaintiffs do not currently challenge.
Id. at 87-90.
18
The District Court noted that federal courts must "tread especially
carefully" when evaluating a request for a preliminary injunction that would
enjoin enforcement of a duly passed legislative enactment:
When a federal court before trial enjoins the enforcement of a municipal

ordinance adopted by a duly elected city council, the court overrules
the decision of the elected representatives of the people and, thus, in a
sense interferes with the processes of democratic government. Such a
step can occasionally be justified by the Constitution (itself the highest
product of democratic processes). Still, preliminary injunctions of
legislative enactments - because they interfere with the democratic
process and lack the safeguards against abuse or error that come with a
full trial on the merits - must be granted reluctantly and only upon a
clear showing that the injunction before trial is definitely demanded by
the Constitution and by the other legal and equitable principles that
restrain courts.
Id. at 90 (quoting Northeast Fla. Chapter of the Ass'n of Gen. Contractors of
Am. V. Jacksonville, 896 F.2d 1283, 1284 (11th Cir. 1990)) (emphasis added).
The District Court concluded the treatment provided by the Plaintiffs
was entirely speech, and therefore "not likely to be subject to rational basis
review" as a law regulating conduct that incidentally involved speech. Id. at
97.
The District Court distinguished the facts before it from those in this
Court's opinion in Wollschlaeger v. Governor, 848 F.3d 1293 (llth Cir.
2017), noting that the subject Ordinances do not prohibit a dialogue between
19
patient and provider, and concluding that "applying intermediate scrutiny to
medical treatments that are effectuated through speech would strike the
appropriate balance between recognizing that doctors maintain some freedom
of speech within their offices, and acknowledging that treatments may be
subject to significant regulation under the government's police powers." Id.
at 105-06.
Ultimately the District Court noted the overwhelming medical evidence
presented by the governmental Defendants of the harm caused by SOCE, and
determined that the Defendants had a compelling interest in protecting minors
from the harms of SOCE, which interest "satisfies Defendants' burden
under all levels and types of scrutiny." Id. at 110-18,118.
Under the heading: "The Relationship between the Ordinances and
the Governments' Interest", the District expressly stated that the Defendants
had the burden under all three levels of review and scrutiny to establish either:
a rational relationship to the government's legitimate interest; that the
ordinances "directly advance" the government's substantial interest, or that
the ordinances were narrowly tailored to satisfy the compelling government
interest. Id. at 118-19 (emphasis added).
The District Court noted that the Defendants' Ordinances "mirror"
20 .
similar ordinances passed by fifteen state legislatures and dozens of local
governments. Id, at 121-2. It concluded that the Ordinances were
rationally related to their purpose and under intermediate scrutiny, were
narrowly drawn. Id. at 125. The Court noted that for purposes of ruling on
Plaintiffs' IVIotion for Preliminary Injunction, it was sufficient to conclude that
whether one or both of the Ordinances survived the "least restrictive means"
analysis for strict scrutiny was a close question, "and Plaintiffs have not met
their burden of demonstrating substantial likelihood of success on this point."
Id. at 126.
The Court rejected Plaintiffs' claim that the Ordinances were viewpoint
discriminatory, noting that the Ordinances regulated the practice of trying to
change a child's sexual orientation, and not any particular viewpoint on the
subject. Id. at 126-28. The District Court concluded that the subject
Ordinances likely affected protected speech and there therefore subject to a
higher level of review than rational basis review, but even under intermediate
review or strict scrutiny, the Plaintiffs failed to demonstrate a substantial
likelihood of success on the merits. Id. at 130-1.
The District Court rejected Plaintiffs' claim that the Ordinances were
unconstitutional prior restraints, noting that the plain language of the
21
Ordinances provided for a penalization of past speech. Id. at 132.
As to Plaintiffs' vagueness claim, the District Court noted that the terms
"sexual orientation" and "gender identity" both have a common and readily-
ascertainable meaning, and in fact the Supreme Court has used the phrase
"sexual orientation" in numerous opinions. Id. at 133-34). It concluded
Plaintiffs failed to establish a likelihood of success on the merits on their claim
that the Ordinances were unconstitutionally vague. Id. at 134.
Finally, as to Plaintiffs claim that the State of Florida impliedly
preempted the field of regulation of mental health professionals, the District
Court noted the scant argument offered in support of Plaintiffs' assertion that
they were irreparably harmed by the Ordinances; however, the Court noted
that monetary damages for any lost income and professional growth from the
alleged injury defeated a claim of irreparable injury. Id. at 135.
STATEMENT OF THE STANDARD OF REVIEW
Issues I-IV: This Court "may reverse the district court's order [rejecting a
preliminary injunction motion] only if there was a clear abuse of discretion."
Siegel v. LePore, 234 F.3d 1163,1175 (11th Cir. 2000) (emphasis in original). As
this Court noted in Siegel: "In this Circuit, '[a] preliminary injunction is an
22
extraordinary and drastic remedy not to be granted unless the movant clearly
established the 'burden of persuasion" as to each of the four prerequisites." Id. at
1176 (quoting McDonald's Corp v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)
(internal citation omitted)).
SUMMARY OF ARGUMENT
"[T]his case presents a conflict between one of society's most cherished

rights - freedom of expression - and one of the government's most
profound obligations - the protection of minors." American
Booksellers v. Webb, 919 F.2d 1493, 1495 (llth Cir. 1990) (citation
omitted). Plaintiffs, licensed therapists, seek to provide talk therapy
to minors with the goal of changing their sexual orientation and/or
gender identity. Defendants, governmental entities, have passed
ordinances to prohibit this practice by the therapists, because they
believe that such "conversion therapy" or "sexual orientation change
efforts" ("SOCE") are contraindicated and harmful to all persons, but
especially minors. At its core, this case is about whether Defendants
can prohibit the licensed therapists from administering SOCE therapy
to minors where the available medical and subject matter literature
concludes that the therapy is harmful to minors."
Order Denying Plaintiffs' Motion for Preliminary Injunction (DE 141 - pg 1).
At its core, Plaintiffs' argument is this: the First Amendment prohibits
government from enacting laws that ban certain conduct with minors, even when
that conduct has been conclusively shown to cause harm including hopelessness,
depression, grief, anger, anxiety, confusion, social isolation, and suicidal ideation.
23
Plaintiffs assert that the First Amendment compels County Commissioners to stand
mute despite evidence that individuals living within their boundaries are engaging
in this harmful conduct with minors.
To the contrary, County Commissioners are granted broad home rule power
to enact laws to protect the health, safety, and welfare of their citizens, including
their minor charges, and the First Amendment must not be read to prohibit the
Government from doing so when the conduct being regulated incidentally involves
speech.
In denying Plaintiffs' motion for preliminary injunction, the District Court
concluded that the County had "identified a compelling interest in protecting the .
safety and welfare of minors", indeed "[pjrotecting minors may be the paradigm
example of a compelling interest." The District Court noted that the governmental
defendants relied on "extensive credible evidence of the damage that conversion
therapy inflicts" which evidence came from well-known research organizations and
subject matter experts.
The District Court noted that neither of the Defendants' ordinances restricts
conduct or speech outside of a formal therapy session, and even within a formal
therapy session, the ordinances allow therapists to recommend SOCE to patients,
express their views to patients, provide SOCE to everyone 18 years-of-age and
24
above, and refer minors to unlicensed counselors, such as religious leaders, to
receive SOCE. (As of this writing, Dr. Hamilton's "Homosexuality 101" videos
remain readily available on the internet. https://lindaseiler.com/homosexuality-
101-dr-julie-hamilton/; http ^/homosexuality 101 .corn/; http://www.voicesofchange.
net/dr-julie-harren-hamilton.html.)
The District Court properly concluded that the First Amendment was not
violated by a legislative enactment that banned a harmful treatment on minors where
the County demonstrated both a compelling interest in protecting minors, and a
narrowly tailored Ordinance enacted to achieve that compelling interest. It
properly concluded that Plaintiffs failed to show a substantial likelihood of success
as to their First Amendment, Prior Restraint, and Vagueness claims, and failed to
show irreparable harm as to their ultra vires claim.
The Order here appealed should be affirmed.
ARGUMENT AND CITATIONS OF AUTHORITY
25
I. THE DISTRICT COURT PROPERLY DENIED PLAINTIFFS' MOTION
FOR TEMPORARY INJUNCTION BECAUSE PLAINTIFFS FAILED TO
ESTABLISH A SUBSTANTIAL LIKELIHOOD OF SUCCESS AS TO THEIR
FIRST AMENDMENT CHALLENGE TO THE COUNTY ORDINANCE
(RESTATED).
PRELIMINARY INJUNCTION STANDARD
To obtain a preliminary injunction, Plaintiffs were required to establish by a
preponderance of the evidence that: "(I) [they had] a substantial likelihood of
success on the merits; (2) irreparable injury will be suffered unless the injunction
issues; (3) the threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party; and (4) if issued, the injunction
would not be adverse to the public interest." Siegel v. LePore, 234 F.3d 1163, 1176
(11th Cir. 2000) (citation omitted).
"A preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly established the 'burden of persuasion" as to each
of the four prerequisites." Id. Moreover, "[w]here a plaintiff seeks to enjoin the
enforcement of a legislative enactment, the relief 'must be granted reluctantly and
only upon a clear showing that the injunction before trial is definitely demanded by
26
the Constitution and by the other strict legal and equitable principles that restrain
courts.'" League of Women Voters v. Cobb, 447 F. Supp.2d 1314, 1331 (S.D. Fla.
2006) (citation omitted). Because Plaintiffs fail to show a likelihood of success on
the merits, they are not entitled to preliminary injunctive relief. See Siegel, 234
F.3datll76.
STANDARD OF REVIEW
This Court "may reverse the district court's order [rejecting a preliminary
injunction motion] only if there was a clear abuse of discretion." Siegel v. LePore,
234 F.3d 1163, 1175 (11th Cir. 2000) (emphasis in original). As this Court noted
in Siegel: "In this Circuit, '[a] preliminary injunction is an extraordinary and
drastic remedy not to be granted unless the movant clearly established the 'burden
of persuasion" as to each of the four prerequisites." Id. at 1176 (quoting
McDonald's Corp v. Robertson, 147 F.3d 1301, 1306 (llth Cir. 1998) (internal
citation omitted)).
PRELIMINARY MATTER
Plaintiffs' quotation at the beginning of its Statement of the Case offifty-five
words uttered by trial counsel for the County during the full-day hearing held on
Plaintiffs' motion is puzzling. It is axiomatic that argument of Counsel is not
27
evidence. Plaintiffs' apparent suggestion that fifty-five words uttered by trial
counsel could somehow render meaningless the thousands of pages of record
evidence before the District Court when it entered its sixty-page Order lacks merit.
COUNTY ORDINANCE REGULATES PROFESSIONAL CONDUCT

THAT INCIDENTALLY INVOLVES SPEECH
The United States Supreme Court recently reaffirmed the authority of
governments to "regulate professional conduct, even though that conduct
incidentally involves speech." National Inst. ofFam. & Life Advocates v. Becerra,
138 S. Ct. 2361 (2018) ("NIFLA") (citing Ohralikv. Ohio State Bar Assn., 436 U.
S. 447, 456 (1978); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S.
833, 884 (1992) (opinion of O'Connor, Kennedy, and Souter, JJ.)). Here, the
County's Ordinance regulates professional conduct. See Pickup v. Brown, 740
F.3d 1208, 1225-31 (9th Cir. 2014). (Plaintiffs' assertion that Pickup and King v.
Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014) were abrogated by NIFLA
finds no support with reference to the NIFLA opinion itself, which merely
recognized that the Supreme Court "has not recognized 'professional speech' as a
separate category of speech." NIFLA, 138 S.Ct. at 2371.)
The County's Ordinance does not ban communication about conversion
28
therapy. It does not ban inquiries like the law in Wollschlaeger v. Governor, 848
F.3d 1293 (llth Cir. 2017). The Ordinance does not ban recommendations for
treatment like the law in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Nor does
the Ordinance compel a governmental message, which is "not tied to a procedure at
all," like the law in NIFLA, 138 S. Ct. at 2373. The County's Ordinance bans the
procedure of conversion therapy. Like the consent requirement in Casey, 505 U.S.
833 (1992), the words of Plaintiffs are only implicated as part of the practice of
therapy.
The cases relied on by Plaintiffs are distinguishable. Unlike the restrictions
on legal challenges in Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001), the ban
on conversion therapy does not restrict speech that is necessary for the proper
functioning of any system akin to an independent judiciary. The ban only restricts
words that are bound up in the practice of private conversion therapy, which is not
part of any larger governmental or free-press system. Furthermore, unlike the
solicitation restrictions in NAACP v. Button, 371 U.S. 415 (1963), the Ordinance
does not hinder political association or the vindication of constitutional rights. The
Ordinance is unlike the "material support" prohibition in Holder v. Humanitarian
Law Project, 561 U.S. 1, 28 (2010), which prohibited the plaintiffs from
"communicating a message" through teaching, training, or advocating on behalf of
29
terrorist organizations. Here, Plaintiffs are free to associate, advertise, and
advocate as they please. Plaintiffs ' input in political processes and the marketplace
of ideas remains untouched; only their practices on minors are restricted.
Restrictions on non-expressive conduct that only incidentally burden speech
do not implicate the First Amendment's protections. See Sorrell v. IMS Health
Inc., 564 U.S. 552, 567 (2011). As the District Court noted: "[I]t has never been
deemed an abridgement of speech or press to make a course of conduct illegal merely
because the conduct was in part initiated, evidenced or carried out by means of
language." (App. Vol. XI, DE 141, pg. 94) (quoting Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U.S. 47, 62 (2006)).
Based on this precedent, the District Court's Order should be affirmed.
COUNTY'S ORDmANCE WITHSTANDS INTERMEDIATE AND

STRICT SCRUTINY
Should this Court determine, as the District Court did, that the County's
Ordinance should be subject to a higher level of scrutiny, either intermediate scrutiny
or strict scrutiny, the District Court's Order should be affirmed as correctly
concluding Plaintiffs failed to satisfy their burden of showing a substantial
likelihood of success to their challenge to the County Ordinance under either level
30
of judicial review.
Contrary to Plaintiffs' assertion that the District Court incorrectly relieved the
Defendants of satisfying their burden regarding demonstration of narrow tailoring
(Appellants' Brief at 46), examination of the Order here appealed reveals that the
District Court expressly stated that the Defendants had the burden under all three
levels of review and scrutiny to establish either: a rational relationship to the
government's legitimate interest; that the ordinances "directly advance" the
government's substantial interest, or that the ordinances were narrowly tailored to
satisfy the compelling government interest. Id. at 118-19 (emphasis added).
COUNTY'S COMPELLING INTEREST IN PROTECTING MINORS
As the District Court concluded, the County established a compelling interest
in protecting minors from physical and psychological harm. The face of the
County Ordinance establishes the County's "compelling interest in protecting the
physical and psychological well-being of minors ... and in protecting its minors
against exposure to serious harms caused by sexual orientation and gender identity
change efforts." The County's interest in protecting the physical and psychological
well-being of minors is not only legitimate, it is compelling. See Sable Commc 'ns
ofCal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (noting the state has a "compelling
31
interest in protecting the physical and psychological well-being of minors"); New
York v. Ferber, 458 U.S. 747, 756-57 (1982) ("It is evident beyond the need for
elaboration that a State's interest in 'safeguarding the physical and psychological
well-being of a minor' is 'compelling."') (citation omitted).
The harms sought to be avoided by the County's Ordinance are not imagined.
The sources cited in the Ordinance unanimously conclude that rigorous research on
the safety and effectiveness of seeking to change sexual orientation is deficient, but
that there is evidence that conversion therapy can cause harm, including depression,
self-harm, self-hatred, and suicidal ideation. - None of the organizations whose
positions and research are cited in the County Ordinance's whereas clauses
identified a basis for distinguishing between minors likely to experience harm and
those likely to perceive a benefit. See Collins v. Texas, 223 U.8. 288, 297-98
(1912) (recognizing the "right of the State to adopt a policy even upon medical
matters concerning which there is difference of opinion and dispute"), Neither the
County nor the Court was presented with an adequate basis for concluding that any
conversion therapy on a minor, voluntary or otherwise, is safe and effective. The
County heard substantial testimony during nearly four hours of public comment and
debate regarding the very real harms suffered at the hands of therapists performing
conversion therapy.
32
Thus, the County has a compelling interest in banning conversion therapy to
protect the health, safety, and welfare of its minor charges.
COUNTY ORDINANCE IS NARROWLY TAILORED
To address this compelling interest, the Ordinance is narrowly tailored to
prohibit only the practice, (as opposed to any discussion or recommendation, of
conversion therapy), which is condemned by numerous professional organizations
as contraindicated, harmful, and ineffective, on minors, whose immaturity,
inexperience, and lack of judgment may sometimes impair their ability to exercise
their rights wisely, as performed by licensed providers, who would be the only ones
legally able to apply the principles and methods of the profession in their efforts to
change a minor.
The County's narrow curtailment of speech implicated by licensed
professionals practicing conversion therapy is justified given: the lack of a
scientific basis for conversion therapy; the number of national mental-health
associations condemning conversion therapy; the lack of empirical support for the
claims of conversion-therapy benefits; the possibility that the benefits, if any, may
be achieved through treatment approaches that do not attempt to change sexual
orientation; the fact that conversion therapy on minors, at best, has not been
33
evaluated for harm and, at worst, can cause significant physical and psychological
harm; the time it takes some psychological harms to manifest or be reported; the
vulnerability and susceptibility of minors to social and familial pressures to conform
with the desires of authority figures; the inappropriateness of therapists imposing
their beliefs on patients; the number of local practitioners who told the County that
the conversion therapy ban would restrict their practices; the existence of two Palm
Beach County children who were being subjected to conversion therapy; and the
threat of harm licensed practitioners may be inflicting on minors who may not now
know what damage is being done to them.
The Ordinance is not over-inclusive for banning non-aversive, voluntary
conversion therapy because the legislative record does not reveal that such therapy
is safer or more effective. The authorities relied upon by the County condemned
any type of therapy that sought to change the minor and recommended therapy that
had no a priori goal. Nor is the Ordinance under-inclusive for banning only the
conduct of licensed providers. The County's legislative record reflects harms
associated only with the professional practice of conversion therapy. The
legislative record reflects no position statements by any religious organizations
renouncing or decrying efforts by religious leaders to change a minor's sexual
orientation or gender identity. Thus, the County had no legislative basis to ban
34
anything other than the licensed, professional provision of conversion therapy.
The County's interests were not adequately protected by other regulations.
No other regulation actually prohibits providers in the County from subjecting
minors to the risk of the harms associated with seeking to change a minor's sexual
orientation or gender identity. Moreover, informed consent, which cannot be
provided for a therapy that is not effective, does not adequately prevent the harms
associated with conversion therapy when there is no safeguard to ensure that only
those who are likely to benefit from conversion therapy will consent to it.
Plaintiffs' argument that the County must have considered alternative
measures at the time it enacted the Ordinance is not supported by McCullen v.
Coakley, 134 S. Ct. 2518, 2539 (2014). In McCullen, the Supreme Court found
that the buffer zone regulation burdened substantially more speech than necessary to
achieve the Commonwealth's interests because other, existing laws could be
employed to address those interests. Id. The Court could not accept the
Commonwealth's response that it had "tried other approaches" that had not worked
because "the Commonwealth ha[d] not shown that it seriously undertook to address
the problem with less intrusive tools readily available to it. Nor ha[d] it shown that
it considered different methods that other jurisdictions have found effective." Id.
Here, unlike McCullen, no readily-available tools have been identified that the
35
County could have used to address its interests in protecting minors from the harms
of conversion therapy. Additionally, Plaintiffs identified no different methods of
achieving the County's goals that other jurisdictions have found effective. "To
meet the requirement of narrow tailoring, the government must demonstrate that
alternative measures that burden substantially less speech would fail to achieve the
government's interests," not that the government actually considered and rejected
those measures at the time of enactment. See id. at 2540.
As the District Court properly concluded, the evidence before it established
the County's compelling interest in protecting the physical and psychological health
of minors, and the County's narrow tailoring of an Ordinance enacted to accomplish
that purpose. The District Court's Order should be affirmed.
COUNTY ORDINANCE IS NOT VIEWPOINT-BASED
"Government regulation of speech is content based if a law applies to
particular speech because of the topic discussed or the idea or message expressed."
Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (emphasis added). The
County Ordinance bans a practice regardless of the content of the words implicated
by the practices or the provider's ideological basis for the practice. Compare
Virginia v. Black, 538 U.S. 343 (2003) (ban on cross burning with the intent to
36
intimidate was content-neutral because it did "not single out for opprobrium only
that speech directed toward 'one of the specified disfavored topics'") -with R. A. V.
v. St. Paul, 505 U.S. 377 (1992) (ban on cross burning with intent to intimidate "on
the basis of race, color, creed, religion or gender" found to be content-based) and
Wollschlaeger, 848 F.3d at 1307 (ban on discrimination and harassment based on
gun ownership or possession found to be content based).
The County Ordinance bans a practice - no matter the basis of the practice.
Content is not regulated. For example, the Ordinance does not prohibit Hamilton
from telling a girl in therapy that she looks "so beautiful" in a dress, as long as that
is not Hamilton's practice of seeking to change that girl's gender identity.
Similarly, Hamilton may not tell a boy that he is "so beautiful" in a dress if that is a
practice of seeking to change that boy's gender identity. The Ordinance bans a
particular practice - no matter its basis or content. Thus, the Ordinance is content
neutral.
The Ordinance is also viewpoint neutral. The Ordinance does not
discriminate based on the direction of the intended change as to gender identity or
sexual orientation. A provider is equally prohibited from seeking to change a
heterosexual minor into a non-heterosexual as they are from seeking to change a
non-heterosexual minor into a heterosexual.
37
Moreover, the Ordinance is not viewpoint-based for excluding from the
definition of "conversion therapy" practices that support a minor who is undergoing
gender transition. This exclusion is consistent with the definition of "conversion
therapy," which prohibits the provider from engaging in a practice that seeks to
change the minor.
The Ordinance does not discriminate against the viewpoint that change is
possible or desirable. The Ordinance does not ban change. It bans efforts by a
provider to change a minor. Presented with a minor client seeking to change their
sexual orientation or gender identity, Plaintiffs may commend and recommend
conversion therapy. But, Plaintiffs cannot perform it in Palm Beach County. The
Ordinance does not discriminate based on the viewpoint of the provider but prohibits
all providers from specified practices. See Keeton v. Anderson-Wiley, 664 F.3 d
865, 875 (11th Cir. 2011) (remediation plan that required a student to comply with
a universally applicable code of ethics prohibiting her from imposing her religious
values on patients, including those regarding homosexuality, was viewpoint neutral).
As a content and viewpoint-neutral regulation, the Ordinance, if it implicates the
First Amendment at all, is entitled to intermediate scrutiny. See Packingham v.
North Carolina, 137 S. Ct. 1730, 1736 (2017) ("Even making the assumption that
the statute is content neutral and thus subject to intermediate scrutiny, the provision
38
cannot stand"); Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994) ("In contrast,
regulations that are unrelated to the content of speech are subject to an intermediate
level of scrutiny, ..."); Bell v. City of Winter Park, 745 F.3d 1318, 1323 (llth Cir.
2014) ("Having determined that § 62-79 is content-neutral, we consider whether it
withstands intermediate scrutiny.").
The content-neutral regulation need not fall within some particular category
of speech, such as commercial speech, to qualify for intermediate scrutiny. See id.
As noted above, the County's Ordinance withstands intermediate scrutiny,
thus Plaintiffs failed to establish a substantial likelihood of success on the merits and
their Motion for Preliminary Injunction was properly denied.
II. THE DISTRICT COURT PROPERLY DENIED PLAINTIFFS'
AS TO THEIR PRIOR RESTRAINT CHALLENGE TO THE COUNTY
ORDINANCE (RESTATED).
PRELIMINARY INJUNCTION STANDARD AND STANDARD OF

REVIEW
The preliminary injunction standard and standard of review recited under
39
Issue I above also applies to this issue on appeal.
COUNTY ORDINANCE IS NOT AN UNCONSTITUTIONAL PRIOR

RESTRAINT
Plaintiffs dedicate a few paragraphs to this issue, asserting without any
evidence in support of that assertion that the County's Ordinance is an
unconstitutional prior restraint. As the District Court correctly noted, the County's
Ordinance penalizes past speech and is thus not an unconstitutional prior restraint.
III. THE DISTRICT COURT PROPERLY DENIED PLAINTIFFS'
MOTION FOR TEMPORARY INJUCTION BECAUSE PLAINTIFFS
AS TO THEIR VAGUENESS CHALLENGE TO THE COUNTY
ORDINANCE (RESTATED).

REVIEW
40
THE COUNTY ORDINANCE IS NOT VAGUE
The District Court properly concluded the County Ordinance is not vague, as
the Supreme Court has used the term "sexual orientation" in numerous opinions, and
the terms "gender identity" and "sexual orientation" each have a common and
readily-ascertainable meaning. The Ordinance provides Plaintiffs with a
reasonable opportunity to understand what is prohibited. Dr. Hamilton testified she
knew what it meant to seek to change sexual orientation or gender identity. Dr.
Otto also knows: he gives clients an informed consent form that outlines the nature
of SOCE counseling, explains the controversial nature of SOCE counseling, and
informs the client of the potential benefits and risks associated with SOCE
counseling.
The District Court properly concluded Plaintiffs failed to establish a
substantial likelihood of success on their vagueness challenge.
41
IV. THE DISTRICT COURT PROPERLY DENIED PLAINTIFFS'
FAILED TO ESTABLISH IRREPARABLE HARM AS TO THEIR
PREEMPTION CHALLENGE TO THE COUNTY ORDINANCE
(RESTATED).

REVIEW
NO IRREPARABLE HARM ESTABLISHED
The District Court properly concluded Plaintiffs failed to establish irreparable
harm as to their claim that the County was preempted from enacting the subject
Ordinance. "A showing of irreparable harm is 'the sine qua non of injunctive
relief.'" Northeast Fla. Chapter of the Ass'n of Gen. contractors of Am. v. City of
Jacksonville, 896 F.2d 1283, 1285 (llth Cir. 1990) (quoting Frejlach v. Butler, 573
F.2d 1026, 1027 (8th Cir. 1978). An injury is irreparable only if it cannot be
undone through monetary remedies. Id.
As the District Court noted, money damages would be available to Plaintiffs
if they were able to establish a loss of income or clients due to the County's
42
enactment of an ultra vires ordinance. Thus, Plaintiffs failed to establish an
irreparable injury as to their ultra vires claim, and the District Court properly denied
injunctive relief as to this claim.
CONCLUSION
The District Court properly denied Plaintiffs' JVIotion for Preliminary
Injunction because Plaintiffs failed to establish a substantial likelihood of success on
their First Amendment claim, and failed to establish irreparable harm as to their
preemption claim.
The County respectfully requests this Honorable Court affirm the- Order
Denying Plaintiffs' Motion for Preliminary Injunction.
Respectfully submitted,
-^
HELENE C. HVIZD'"
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this brief complies with the type-volume limitation
of the Federal Rule of Appellate Procedure 32(a)(7). According to the Word
43
program on which it is written, the pages of this brief contain 9027 words and are
typed using Times New Roman 14-point f9nt.
t.
HELENE C. HVIZD, E(
CERTIFICATE OF SERVICE
I CERTIFY that on June 10, 2019, I electronically filed the foregoing
Appellee County of Palm Beach, Florida's Brief with the Clerk of the Court for the
United States Court of Appeals for the Eleventh Circuit by using the CM/ECF
system. Service will be accomplished by t}ie CM/ECF system.
^/^ ^.
HELENE C. HVIZD
Counsel for Defendant/Appellee
County of Palm Beach, Florida
Palm Beach County Attorney's Office
301 North Olive Avenue, Sixth Floor
West Palm Beach, Florida 33401
Tel.: (561) 355-2582
Fax.: (561) 655-7054
44

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Case: 19-10604 Date Filed: 06/10/2019 Page: 1 of 58

IN THE UNITED STATES COURT OF APPEALS

ROBERT W. OTTO, PH.D., LMFT, individually and on behalf of his patients,

CITY OF BOCA RATON, FLORIDA, and COUNTY OF PALM BEACH,

Interlocutory Appeal From the United States District Court

APPELLEE, COUNTY OF PALM BEACH, FLORIDA'S, BRIEF

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

ROBERT W. OTTO, et al. v. CITY OF BOCA RATON, et al.

Case No. 19-10604-A

Appellee COUNTY OF PALM BEACH, FLORIDA files this Certificate of

entities interested in this appeal, as required by Federal Rule of Appellate Procedure

26.1-1. and Eleventh Circuit Rule 26.1:

Alliance for Therapeutic Choice, amicus in support ofPlaintiffs/Appellants

Berger, Mary Lou, defendant/appellee Palm Beach County Commissioner

City ofBoca Raton, Florida, defendant/appellee

ROBERT W. OTTO, et al. v. CITY OF BOCA RATON, et al.

Case No. 19-10604-A

Equality Florida Institute, Inc., amicus in support ofdefendants/appellees

Fahey, Rachel, trial co-counsel for defendant/appellee Palm Beach County

Gannam, Roger K., trial and appellate co-counsel for plaintiffs/appellants

Hamilton, Julie H., Ph.D., LMFT, plaintiff/appellant

Kerner, Dave, defendant/appellee Palm Beach County Commissioner

Liberty Counsel, trial and appellate counsel for plaintiffs/appellants

Mack, Bernard, defendant/appellee Palm Beach County Commissioner

Mayotte, Monica, defendant/appellee City ofBoca Raton Council Member

ROBERT W. OTTO, et al. v. CITY OF BOCA RATON, et al.

Case No. 19-10604-A

McKinlay, Melissa, defendanVappellee Palm Beach County Commissioner

Mihet, Horatio Gabriel, trial and appellate co-counsel for plaintiffs/appellants

O'Rourke, Andrea Levine, defendant/appellee City ofBoca Raton Council Member

Otto, Robert W., Ph.D., LMFT, plaintiff/appellant

Palm Beach County, Florida, defendant/appellee

Phan, Kim, trial co-counsel for defendant/appellee Palm Beach County

Reinhart, Bruce E., United States Magistrate Judge

Rodgers, Jeremy, defendant/appellee City ofBoca Raton Deputy Mayor

Rosenberg, Robin L., United States District Judge

SDG Counseling, LLC, company ofplaintiff/appellant Robert W. Otto, Ph.D.,

Singer, Scott, defendant/appellee City ofBoca Raton Mayor

Staver, Matthew Duane, trial and appellate co-counsel for plaintiffs/appellants

The Trevor Project, amicus in support of defendants/appellees

Thomson, Andy, defendant/appellee City ofBoca Raton Council Member

ROBERT W. OTTO, et al. v. CITY OF BOCA RATON, et al.

Case No. 19-10604-A

Valeche, Hal R., defendant/appellee Palm Beach County Commissioner

Weinroth, Robert S., defendant/appellee Palm Beach County Commissioner

Weiss, Gregg K., defendant/appellee Palm Beach County Commissioner

No publicly traded company or corporation has an interest in the outcome of this

STATEMENT REGARDING ORAL ARGUMENT

Appellee, County of Palm Beach, Florida (County), suggests that oral

Motion for Preliminary Injunction is amply supported with reference to record

evidence, and a correct application of the law to that evidence.

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT..............................C-l

STATEMENT REGARDING ORAL ARGUMENT........................................... i

TABLE OF CONTENTS ....................................................................................... ii

STATEMENT REGARDING ADOPTION OF

BRIEFS OF OTHER PARTIES......................................................................... viii

STATEMENT OF SUBJECT MATTER AND