Monday, October 7, 2019

The Tampa conversion therapy ruling is probably not what you think

None of the First Amendment issues (speech and religion) are elements of the ruling in this case.
As you are all probably aware, in Vazzo v. City of Tampa, a U.S. district court judge struck down Tampa's ordinance prohibiting pediatric conversion therapy. While I disagree with the verdict it is important to recognize that Judge William F. Jung is considered to be an extraordinarily capable jurist.

Judge Jung was nominated by George W. Bush and President Obama with no action taken by the Senate. He was then nominated by Trump. Jung is a very smart guy and he is not an ideologue.

Jung's ruling in this case was based on preemption; the idea that healthcare is the exclusive province of the State of Florida. Jung makes the point that Tampa's ordinance potentially affects providers throughout the state.

There is no grant of authority by the Florida Legislature to municipalities to substantively regulate healthcare treatment and discipline. The State, not localities, occupies this field. … there is nothing local or unique to Tampa about SOCE that would suggest the statewide, uniform medical regulation regime should vary because of Tampa’s peculiarities, and should vary across the State, from town to town and from county to county. The matter legislated against—SOCE—is statewide, not Tampa- specific.
I am not a lawyer but I think that Judge Judge erred. There are two structures affecting municipalities: Dillon's Rule and Home Rule. Many states are a hybrid of both.

Under Dillon's Rule a municipality may exercise only those powers expressly conferred by statute (usually the state constitution), reasonably implied by statute, or essential and not merely convenient.

Under Home Rule, a municipality is free to enact laws without a specific charter to do so from the state. Florida is a Home Rule state with the exception of taxes. However, there are conflicting statutes expressed in the 1968 Constitution and the 1973 Municipal Home Rules Power Act.

Preemption occurs when the state statute demonstrates an intent to occupy a field of regulation. However, Florida courts have usually required a clear directive by the state not to allow an action. That aligns with the intent of the voters to effect Home Rule.

In other words, Judge Jung's ruling was not an invention and was not out of religious zealotry. Hopefully the City of Tampa will appeal Jung's ruling. Equality Florida was a movant in this case. Equality Florida might be able to appeal in Tampa's stead if Tampa chooses not to appeal. When I know who is doing what to whom I will let you know.

There is one other wrinkle to this case. Judge Jung was not influenced by expert testimony in this case. At least not sufficiently to rule in favor of the City of Tampa. Jung refers to:
… the complex and dynamic subject matter of human gender and sexual preference. This shows the wisdom of the Legislature’s program of uniform statewide governance and defining and disciplining the field statewide by medical experts. The field of gender expression is especially complex. Tampa’s lay attempt at psychotherapy regulation crowds into this very complex, evolving area.
When the JAMA embargo ended, I emailed to all of the attorneys involved in this case copies of the Harvard study of gender identity conversion efforts. Obviously, the Court did not have the expert testimony of the lead investigator of that study, Dr. Jack Turban at Harvard Medical School or someone of comparable credentials.

I have suggested and hope that Jack might be available as an expert witness in the Palm Beach County case. I can make the recommendation but it is not my place to discuss this with Dr. Turban.

There now exists an exigency for municipalities to protect their children until the State of Florida gets around to passing legislation. In other words, evidence-based science should prevail over a political process. Even under a Dillon's Rule interpretations, this urgency should allow the municipality to prevail.

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