because the ordinances violate the st amendment in this particular case the ordinance is clearly regulate the content of what counselors want to say to their clients who are informed consent and seek to set their own individual objectives they regulate the particular content when that counsel involves a goal to change unwanted same sex attractions behavior or identity conflicts even when the client seeks that clients are like the driver of a car and counselors are like a g p s they don't set the direction they just take the direction from the driver they don't dictate to the client any more than the g p s dictates how or where they should go when they enter in the car they just try to reach the objective of the client the client's set the goal and understand or counseling procedures across this country the counselor is not supposed to override the self autonomous determination of the client but to help the client reach that goal and when the client has a goal of change in palm beach county and boca raton they cannot help that client they must either remain silent or they must try to override that client's right of self determination court orders to go ahead counsel be before you can proceed i just had a a question the trial court the district court judge did not rule on the preemption issue correct  it i didn't find a case on point so but is it your belief that the district court judge should have ruled on preemption st before deciding the rest of the case judge though that's exactly what the judge did in the vase zero case in the city of tampa ruled had both the same preemption argument and the st amendment and ultimately ruled on the preemption to not address the constitutional constitutional claim gives more relief than the underline preemption claim in this case but the killer yet clear injunction the constitutional claim of free speech does give a greater benefit or remedy to the plaintiffs in this case the appellant's then does the preemption particularly on the issue of irreparable harm so we would ask the court to address the st amendment issue but century raise the issue of preemption i will also address that as well i think the preemption case certainly is very clear and i would recommend the vasso decision on that issue again that was a summary judgment where injunction in the st member gives a broader legal right with regards to the presumption of unconstitutionality when there is a content based restriction and also on a record the harm and speech is addition we have both of those here so i'd ask the court to address that but on the preemption issue the entire subject matter has been preempted by the state of florida there is no room for these counties to regulate in fact the counsel for the city and the counties are already acknowledge that when they were pressured by public interest organizations to this ordinance they issued opinions saying that this entire field has been preempted there is no basis or ability for local governments to regulate health care more of you know in a past life  on you know ways in which patients can be treated is just i think this is a whole messy area and so what i mean what what would have been appropriate in the way of limitations in this area well the comprehensive regulation in the state of florida does not restrict what our counseling clients are able to say so if they step across the county line in palm beach or outside the city a book or a tone they can do exactly what they did before these ordinances so there's a clear conflict there have been numerous attempts to pass this kind of same restriction on the state level in the florida legislature year after year after year including last year have rejected these attempts i i didn't see all this common i mean there's so many permutations of things the doctors and their patients need to talk about and so you know our job as a court whether we want to do it or not is to develop in you know these doctors can refer minor children to other practitioners or you know religious leaders and they can treat because next that the supreme court's already addressed that in the middle of decision it over it abrogated three cases two of which are the original counseling ban cases pick up case out of the th circuit which i argued the king case out of the  circuit which also argued in and both of those although they looked at different standards of review they also only upheld the bans because they said it involved professional speech the king case clearly rejected the idea that it was  not content based found that it was content based but notwithstanding said that it was professional speech missler abrogated by name pickup and king and also more king out of the four circuit didn't deal with this specific situation but it dealt this court clearly had issues constitutionally the st member a because that was a much broader application me no doctor in florida was allowed to ask any patient any any age they wouldn't be able to do that how if they did that would you like this kind of treatment and they say yes that's what i want that's why i came here what do they do they say you're asking me what the point  that prohibited under both ordinances yes absolutely in fact one of the ordinances even has more of a viewpoint well they both have the same thing just difference and fines they say that you can't even someone regarding a romantic attractions or romantic affections towards someone of the same sex or gender let me ask you a question and i'm going to ask this to mr getty's as well on the other side my understanding when i read the ordinances if you have someone who identifies as they were born biological male they come in and now they're identifying as a female during the discussion the therapist is a therapist even allowed to ask why do you believe now that you are a female is that allowed we might be able to ask but if that particular person now adenoviruses a female but biologically male says i don't want to identify as female i want to go identify as no i understand so if he what if if the the minor at that point says i identify as a female because i have an attraction to two boys at that point the therapist the way i read it cannot say for nasa you just have a same sex attraction that's correct cannot help that client even when the client expressly through informed consent in chapter seven hundred and sixty six of the florida statutes is clear on the right of informed consent article one section twenty three in the florida constitution the right of privacy including medical treatment and the right to set autonomous decisions both from a health care provider including counselors and clients to be able to set your goal that's a stablish throughout florida statutes but in this case there is one area in palm beach or book where tone that that doesn't apply and that is in that exact situation judge will go that comes up in fact there are thirty basics witness actually has a colloquy that we cited into the briefs and it is that very question somebody who's born say male now wants to identify as female but then doesn't feel comfortable as that wants to really identify as male if that counselor tries to help that person identify consistent with their birth sex that's begun and they say specifically you cannot do that anywhere in palm beach county meet the county in the city have have put forth some evidence that this type of therapy could be harmful to children obviously you don't you don't think that that evidence is sufficient what if we were looking for compelling if we were looking for another chance to south by strict scrutiny what what do you think would be required more than conjectural harm under mcmullen and in this particular situation they haven't put forth any evidence they've got the american psychological association task force and then they got policy statements not the a p a which they actually cited including the district judge below actually cites that there is not a dearth of research and that you shouldn't prevent this kind of counseling that you should respect both the minor and the parents and provide informed consent there is no ban in the a p a task force which is all they have to change counsel there is no studies on harm with regards to minors regarding change counsel and there's zero evidence and they didn't regarding gender identity nothing in any of the statements nothing in the a p a task force and when we raised in our brief they did not rebut that they have zero evidence you need much more than that when you're restricting free speech this particular ordinances should be analyzed under read because based on the face of the ordinance and also in their application the only way you determine whether or not there is a violation is to listen to what the counselor is saying then when that counselor ultimately engages in a conversation which they agree they do this one hundred percent through words just like a g p s they're not coercing someone they're just providing words when that counselor ultimately is deemed to help that client reach a goal of change these ordinances kick in it is clearly a content speech regulation and it's subject to strict scrutiny they have no compelling interest and by the way not only the lower court but neither the city or the county good morning or honors pleased to court my name is diane abbott along with ed get us from the law firm of weiser road and helpmann we represent the city of boca raton your honour's the ordinance that is under attack here is a is an ordinance that prevents what has found to be a dangerous and ineffective medical procedure it is a regulation of conduct and not a regulation of speech there is not a single phrase or word that the ordinance supportive of the city's position than if a case says things like the following nif list said there is not a separate category of professional speech we have never defended the ordinance as being a regulation of professional speech the basis for the ordinance is it doesn't regulate speech at all it regulates conduct in exactly the sort of way that netflix says that we can and how does it regulate conduct when it's undisputed that the therapy in question is completely talk therapy well because sometimes talking is is the conduct and the courts have made that completely clear and no fly has made that clear mifflin has said while drawing the line with in the new flow pinion it rejects the concept that there is a separate category of speech called professional speech and it says that there are two categories of speech that are really regulate a bull and not protected speech and one is when speech is conduct as is the case here so i ask you a question regarding your client's ordinance which is broken correct yes your honor right well when you read the ordinance it talks about  efforts to change behaviors so let me go back to the hypothetical that i posed to opposing counsel if you have a client who comes in to a therapist born biologically a male now identifies as a female and during the therapy it comes up that the reason that they identify as a female now is because they have a same sex attraction to males can that therapist then have a discussion with them because now they identify as a female can they have a discussion and say perhaps you have a same sex attraction to males and you homosexual as opposed to a woman of course your honor that's when you explain that to me how because my understanding of the ordinance and i read all the deposition transcripts and the people who talked about it from bo said that that in fact was not permitted under the ordinance you know your i don't know the particular question that you're that you're the particular quote from the rep that you're asking but they were of you of the ordinance makes makes the following crystal clear that psychologist can say anything he or she wants to that patient he can say i think this is the reason that you're feeling the way that you're feeling i think it say i think that you should stop being homosexual or that you should stop identifying as a as a particular gender he can say i think that you should probably go get treatment sexual orientation change efforts because i think that there are effective i think they work i think you should go to a to a religious leader or to somewhere outside of the boca raton and here is the number of a doctor that can do those things for you each and every one of those things is absolutely permissible under the ordinance if i harmful as you heard as your city asserts then why wouldn't the ordinance othen need to exclude others from getting this kind of therapy perhaps or different carve out for religious leaders for other reasons but why how could you realistically limit it to a therapist if the basis is that this is harmful in the st place a couple of raise a joiner st of all as as your appellants criticize regulations like this should be supported by the evidence the evidence that the city has are statements or conclusions from nine major mental health psychological organizations and in fact your amicus suggest that there are five other mental health psychological organizations that have recommended against this sort of psychological therapy that's the factual basis for the ordinance and extending that to other speakers has would would not have a basis and the reason might be obvious your honor which is which is the following while while these cycles i just try to minimize what they do in other words to suggest that they are indistinguishable from people that simply put a soapbox on the street corner and speak that's not what psychologists or psychologists are trained professionals that learn methods and methodology to change behavior they are the people who who the studies suggest have been doing things that are ineffective and that are causing harm and that's why that's the sort of conduct that the city has banned the other reason your honor has pointed this out when it when there is a criticism that why don't you ban religious leaders from doing it not only is there not an evident basis for the city to have done it but there are other constitutional issues that had not been resolved at the time the city adopted the order of if this ordinance can stand than it could a community with different values who found different assertions from professional groups actually banned counseling and tended to assist a person say going through a gender transition or and tended to help a person explore their same sex attractions if that city said well we have we have these studies that say that that that type of of counseling is harmful well i think i think the short answer is today i don't think they could because those sorts of studies don't exist but of course anytime if a government develops a sufficient evidentiary basis if the quantum of evidence for those sorts of counseling as you suggested came to be if the scientific community has come to learn that certain kinds of counseling that are provided people who are undergoing gender transition are both ineffective and in substantially horrible eat these these studies are talking about greatly sixty percent suicide rates etc then of course a government  can and a practice that they have found to be harmful so we could have a patchwork of different counseling approaches across the country based on whichever whichever communities thought that a particular practice was more or less harmful that seems that seems in serious tension with the st amendment well it's not intention with the st amendment if again we're not regulating speech at all we are regulating a procedure really w some states ban certain medical procedures and other states do not i suppose you could say that's a power that we're this court has said that characterizing speech as conduct is a dubious constitutional enterprise how how can we get from point a which is this is this is purely literally speech to this speech constitutes conduct but other speech constitutes speech well the quote that your honor has read me is lager this issue wasn't an issue in welsh lager but that sentence standing alone that speech is not conduct calling speech conduct is a dubious constitutional enterprise well it was actually if it is thought had to say about about pick up it said the pick up law importantly and i'm not adding that word so in discussing pick up member bolshie locker was not a sexual orientation change efforts ok so it says pick up importantly did not restrict what the petitioner could say or recommend to a client which is exactly the same as the case here we always want that we had serious doubts about whether pick up with correctly decided what would what has happened since then that would interfere with the serious doubts that eleven out of twelve i believe members of the court had at the very least nif what happened so it's so and forgive me your honor i didn't answer your earlier question but if if one pulls that sentence in while slogger out of context as as the law in the which is we do not distinguish speech is never conduct it's a dubious enterprise the statement is simply wrong and that's it when it's what the new flick or that's what the supreme court said after wall slaughter it said while it's sometimes difficult sometimes words are not speech sometimes words are the conduct and if that's ever the case this is the case because the words or the activity but let me ask you the let me make this final point i see i'm running out of time if what these correct that all they do is speak and so they are entitled to a full category of constitutional protections because they are speakers under what authority does the state of florida license psychologist wouldn't it all be prior restraint because they are just speakers and the answer is that they're not just speakers they are medical practitioners and the way they practice their profession is regulated will and and i see my red light i have a question actually mr and as soon as your position the city considered less restrictive means is a do you say the city did well the less restrictive means that the that the counselor suggested why didn't you just ban of verse of therapy and why didn't you just be in therapy nonconsensual therapy and the answer is if the city thought about that it rejected it immediately because the studies on which it's based on this is this is described in detail in the brief if the city considered and rejected this alternatives it would have been for that reason or you're saying the city did consider and reject as alternatives for those reasons judge here here's the background a draft ordinance was presented to the city council and that draft ordinance was adopted so i don't want to extend beyond the record and suggest that elected what was going through elected officials minds did they think of doing something less my only point is the record fully supports that there is no less restrictive alternative because the things that are being alleged things that they suggest should be kept out of the ordinance or are activities that have been expressly found to be harmful in the studies that are the basis for the city's regulation thank you morning good morning may it please the court my name is hellene this day with the palm beach county attorney's office and i represent palm beach county in this matter we certainly adopt the arguments made by counsel for boca raton but i'd like to address two quick points if i may it was suggested during the appellant's argument that in fact there is no scientific evidence establishing a harm as to conversion therapy in the vasic case which has now been partially briefed this court has the amaechi and also the initial brief the equality florida brief plainly presents to this court additional testimony additional evidence beyond all of the scientific evidence we already have the kaitlin ryan study as stablished is that of those young individuals who were subjected to conversion therapy as minors over sixty percent reported attempting suicide there is plenty of evidence in front of this court there is plenty of medical evidence a stablish ing the harm of conversion therapy appellants also suggested that in fact the evidence the record will show that counsel or opinions of counsel in fact as judge would go unmentioned recommended that preemption should should prevent the county or the city from passing the ordinance they passed i can speak to that matter it was my legal opinion and in fact i explained during the six hour deposition that i gave that my opinion in august of two thousand and sixteen was that in fact the county was preempted by the state but that my opinion changed based on additional research and additional evidence most specifically memorandum of law presented by the wellington village attorney in which she provides quite plainly the legislature for their believes that such professions shall be regulated only for the preservation of the health safety and welfare of the public under the police powers of the state such professions shall be regulated when and i'm reading now from four hundred and fifty six three to be the public is not effectively protected by other means including but not limited to other state statutes local ordinances and federal legislation do you think we have enough information at this stage of the case to decide the preemption issue or is that something more appropriately decided at the summary judgment phase your honor this is a very interesting question given the status of us being here before the cases here the vasic case is only partially brief to this point i think certainly this court can take notice of other cases in front of it at at events it was summer a summary judgment stage correct that was at the summary judgment stage yes exactly and in fact preemption did not become major focus of our case in should be decided st before anything else in the case in terms of the merits of the case and it was a brief portion of the order that is in front of this court in this case because the trial court did determine as to an injunction that there was no irreparable harm established as to the claim that in fact the county was preempted from entering into from enacting the ordinance that enact and there was also a way that many people have strong views on this type of this type of discussion what do you make of the a p a report statement that given the lack of empirical evidence from randomized control trials of the efficacy of treatment eliminating gender discord e the potential risks of treatment and longitudinal evidence gender discordance persists only in a small minority of untreated cases arising in childhood further research is needed so on and so forth is the is the evidence as as strong data wise as you might want it to be to support a speech or section that's louis is your honor and what you're quoting from is just a very brief portion of a very large a task force report and in fact that section that you quoted references fear that further study is necessary the caitlin ryan's study is further study and it's there it's present and it shows a real harm from the were held in front of the palm beach county board of county commissioners and in fact numerous people spoke at both of those hearings which lasted several hours each in fact the county identified six providers within incorporated palm beach county who were providing conversion therapy a mental health professionals to stood up addressed the board of county commissioners and suggested that conversion therapy not only violates the ethics of the profession but it also implies that the therapist has the ability to change one's sexual orientation several people in faith who were opposed to the conversion therapy ban spoke many of them suggesting that  aversion therapy should be the therapy that was avoided in fact the b c c considered that testimony considered that those statements by those individuals in front of the b c c so if you just take a look at that you very lengthy transcripts vigils  correct who opposed the ordinance exactly yes or on or both sides presented their case to the board of county commissioners from palm beach county and lengthy hearings so those issues were considered thank you thank you please the court ryan study is not in this record and even it is it wouldn't support their claim it concludes concludes that there is like the others no causal connection i would refer also this court to pages twenty seven dollars twenty eight cents in which the thirty six dollars witnesses for the defendant said they spent about five minutes looking at narrow tailing earl turned of the options in fact they didn't spend any arguments on what those narrow tailoring options would be neither did the lower court indeed informed consent would be a particular option and that's exactly what the a p a task force recommends that the clients be fully informed including the minors and the parents and then make an informed decision and then you leave it up to the judgment of the counselor to also mostly counsel the problem will it be less restrictive alternative if it's five could force you to give me one well i think clearly informed consent and it's already there already do informed consent and it's already under seven hundred and sixty six of the florida statutes and florida statutes regarding patients rights and alternative health care have a broad right of clients to be able to set the directive and choose the health care provider of their choice including the health care provider there is no equivalent regulation at all in counseling or else at regarding what be said in that complicated by the fact that these are minors know they can't really give informed consent know your honor because minors give informed consent through their parents and the as the indication in this record shows if a parent wants to have a child in one direction but the child's not willing to go these councils is not going to force that that client to go in the direction that the client doesn't want to go the client is that child not the mom or the death in the reason is because of the overwhelming  idea within counseling is that the person has the right of self determination and you can't lead a horse you might be able to lead them to water perhaps but you can't make them drink and you can't have successful counseling if the client the minor is unwilling argument that this speech is speech extend to those have that their peace or this had to be more obviously conduct those are more obviously outside of the pure words and as they have stipulated clearly what happens in these counseling sessions are only words there is no such thing frankly within the council world of conversion therapy and in fact the old outdated motives that they say in terms of aversion another kinds of things they haven't practiced in decades let me just schlichter judges prior and hall have a hypothetical and cites the prior concurrence with approval and in that particular concurrence the question is asked after a series of questions quote could a state prohibit a doctor from advising a client about sex reassignment surgery and the unequivocal answer that was being expected is absolutely no and that's exactly what these ordinances have sought to do they are unconstitutional content based regulations they don't survive strict scrutiny and thank you very much on your own as we request that you reverse and enter the plume an air injunction thank  we're going to take a short break and we'll be