Professional Documents
Culture Documents
MOTION For Preliminary Injunction With Incorporated Memorandum of Law in Support by Christopher Doyle
MOTION For Preliminary Injunction With Incorporated Memorandum of Law in Support by Christopher Doyle
DISTRICT OF MARYLAND
TABLE OF CONTENTS................................................................................................................. i
A. Plaintiff and His Voluntary Talk Therapy Practice for Minors with Sexual
and Gender Identity Conflicts............................................................................2
ARGUMENT...........................................................................................................................17
i
C. SB 1028 Unconstitutionally Discriminates Against Plaintiff’s Protected
Speech on the Basis of Viewpoint. ..................................................................20
CONCLUSION........................................................................................................................35
ii
TABLE OF AUTHORITIES
CASES
11126 Baltimore Blvd., Inc. v. Prince George’s Cnty., Md., 58 F.3d 988 (4th Cir. 1995)............32
Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) ..............................................................28
Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184 (4th Cir. 2013) ......................................17,18
City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) ....................................................32
Columbia Union Coll. v. Clarke, 159 F.3d 151 (4th Cir. 1998) ...............................................20,21
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985)..................................20
Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) ..................................................................22
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ..............18,19
Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018) .........25,26
iii
King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014) .....................................................20
Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) .............................20
Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011) .....................................................33,34
Nat’l Inst. for Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371–72 (2018)
[NIFLA]................................................................................................................19,20,22,24,31
Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249 (4th Cir. 2003) ..............33,34
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995).......................................20
Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989) ...............................................26,27,30
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991).........25
Texans for Free Enter. v. Texas Ethics Comm’n, 732 F.3d 535 (5th Cir. 2013) ...........................35
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) .................................................18
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)...................32,33
iv
Ward v. Rock Against Racism, 491 U.S. 781 (1989) .....................................................................27
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I .............................................................................................................. passim
RULES
D. Md. L.R. 105.6 ............................................................................................................................1
OTHER AUTHORITIES
11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice &
Procedure §2948.1 (2d ed. 1995) .......................................................................................33,34
Am. Psychol. Ass’n, Guidelines for Psychological Practice with Transgender and Gender
Nonconforming People, 70(9) Am. Psychologist 832 (2015) [APA TGNC Guidelines],
https://www.apa.org/practice/guidelines/transgender.pdf ..................................................10,11
Stewart L. Adelson, M.D., The American Academy of Child and Adolescent Psychiatry
(AACAP) Committee on Quality Issues, Practice Parameter on Gay, Lesbian, or
Bisexual Sexual Orientation, Gender Nonconformity, and Gender Discordance in
Children and Adolescents, 51(9) J. Am. Acad. Child & Adolescent Psychiatry 957, 968
(2012) [AACAP Statement], available at https://doi.org/10.1016/j.jaac.2012.07.004
..........................................................................................................................................9,10,11
v
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff, CHRISTOPHER DOYLE, LPC, LCPC, individually and on behalf of his clients,
pursuant to Rule 65, Fed. R. Civ. P., moves the Court for a preliminary injunction enjoining
Defendants, together with their officers, agents, servants, employees, and others who are in active
concert or participation with them, from enforcing SB 1028 on the grounds that it violates the First
Amendment and the Constitution of Maryland, as set forth more fully in the following
memorandum of law, the Declaration of Christopher Doyle in Support of Plaintiff’s Motion for
Preliminary Injunction (“Doyle Declaration”) attached hereto as Exhibit A, and the Verified
Complaint for Declaratory Relief, Preliminary and Permanent Injunctive Relief, and Damages
Pursuant to Local Rule 105.6, Plaintiff requests that his motion for preliminary injunction
be set for a hearing at the Court’s earliest opportunity. Given the weighty First Amendment issues
involved, and the ongoing and irreparable injury being visited on Plaintiff and his clients each day
Maryland’s counseling ban law remains in effect, Plaintiff believes that oral argument would assist
MEMORANDUM OF LAW
1
V. Compl. Ex. B, APA Rpt., at 72, 73, 92; see id. at 2 n.** (defining “sexual orientation
change efforts (SOCE)” to encompass practices prohibited by SB 1028 as “conversion therapy”);
see infra Stmt. Facts Part B.
1
By enacting SB 1028, Maryland is storming the office doors of therapists, thrusting the
State into the sacrosanct relationship of counselor and client, and running roughshod over clients’
and counselors’ cherished First Amendment liberties. Maryland’s justification for such
unconscionable actions is that it does not approve of voluntary, professional counseling that
affirms and assists a minor’s desire to reduce or eliminate unwanted same-sex attractions or gender
identity conflicts. Maryland offers no actual evidence of harm arising from such voluntary
treatment, but instead relies on position papers by advocacy groups that either disregard or
misrepresent the empirical record. SB 1028 is in gross violation of the United States and Maryland
STATEMENT OF FACTS
Plaintiff refers to the sworn facts set forth in the Verified Complaint and Doyle Declaration
filed contemporaneously with this motion and incorporates those facts herein as if set forth in full.2
Plaintiff Christopher Doyle is a therapist licensed by the State of Maryland. (V. Compl.
¶ 13). Plaintiff has devoted most of his professional life to providing counseling to young people
and their parents who are seeking help for unwanted same-sex attractions. (V. Compl. ¶ 101; Doyle
Decl. ¶¶ 3–7.) In his practice, Plaintiff helps clients with their unwanted same-sex attractions,
behaviors, and identity by talking with them about root causes, about gender roles and identities,
and about their distress and confusion that arise from these attractions. (V. Compl. ¶ 111; Doyle
Decl. ¶¶ 9–15.) Speech is the primary tool that Plaintiff uses in his counseling with minors who
2
Unless otherwise indicated, capitalized terms herein have the same meanings as in the
Verified Complaint and Doyle Declaration.
2
state that their therapeutic goal is to seek to reduce or eliminate their unwanted same-sex
attractions, behaviors, or identity. (V. Compl. ¶ 112; Doyle Decl. ¶¶ 9–15.) Plaintiff does not begin
counseling with any predetermined goals other than those that the clients themselves identify and
set. (V. Compl. ¶ 115; Doyle Decl. ¶¶ 9–15.) This is consistent with his clients’ fundamental right
of self-determination. (Id.)
If a client determines that he or she wants help to reduce or eliminate unwanted same-sex
attractions, behaviors, or desires, or gender identity conflicts, then prior to engaging in counseling
Plaintiff provides the client with an informed consent form and requires the client to review and
sign it prior to commencing counseling. (V. Compl. ¶ 108.) This informed consent form outlines
Therapy”), explains the controversial nature of such counseling, including the fact that some
therapists do not believe sexual orientation or gender identity can or should be changed, and
informs the client of the potential benefits and risks associated with counseling to eliminate,
reduce, or resolve unwanted same-sex attractions, behaviors, or identity. (V. Compl. ¶ 108.) In
Plaintiff’s informed consent form, he quotes research both from the 2009 APA Report and from
the 2009 research overview of the National Association for Research and Therapy of
Homosexuality (NARTH), titled “What Research Shows,” which summarizes decades of research
Plaintiff employs speech and standard psychological instruments and practices to help
clients understand and identify their anxiety or confusion regarding their attractions, behaviors, or
identity and then to help each client formulate the method of counseling that will most benefit that
particular client. (V. Compl. ¶ 113; Doyle Decl. ¶¶ 9–15.) Plaintiff often finds that a client is not
3
ready or does not desire immediately to begin seeking to reduce or eliminate their unwanted same-
sex attraction, behaviors, or identity. (V. Compl. ¶ 114.) When that is the case, Plaintiff focuses
on helping the client and parents to heal any wounds or frustrations and to begin working on loving
and accepting the minor client, despite any challenges that arise from the unwanted same-sex
notion that homosexuality is an illness, defect, or shortcoming. (V. Compl. ¶ 118.) Plaintiff has
never publicly stated that he believes homosexuality or same-sex attractions is a mental illness in
need of a “cure.” (V. Compl. ¶ 118.) Plaintiff does not seek to “cure” clients of same-sex
attractions, but only to assist clients with their stated desires and objectives in counseling, which
sometimes include reducing or eliminating unwanted same-sex attractions. (V. Compl. ¶ 119.) In
most cases, clients do not even identify as “homosexual” or “gay” or “lesbian,” but rather believe
they are heterosexual and experiencing conflicts with their heterosexual identities due to traumatic
or other experiences that have caused unwanted same-sex attractions or behaviors. (V. Compl.
¶ 68.) The only relevant consideration in Plaintiff’s counseling, and in all mental health counseling,
is that same-sex attractions or behaviors are at variance with the client’s self-described
heterosexual identity, causing anxiety or distress, and that the client seeks to eliminate the
attractions or behaviors that lead to such anxiety or distress. (V. Compl. ¶ 121.)
Plaintiff has five minor clients he is counseling with unwanted same-sex attractions and/or
gender identity conflicts, and roughly a dozen families with minor children who are consulting
with him regarding their children’s unwanted same-sex attractions and/or gender identity conflicts,
who have been seeing improvement and progress toward their therapeutic goals. (V. Compl.
¶ 105.) These minor clients will suffer significant mental health consequences if they are required
4
to halt their counseling to eliminate, reduce, or resolve unwanted same-sex attractions, behaviors,
or identity because of SB 1028, potentially including anxiety, depression, and suicidal ideation.
The voluntary talk therapy Plaintiff practices to help his clients achieve their goals of
conflicts, is now prohibited by SB 1028. (V. Compl. ¶ 124; Doyle Decl. ¶¶ 15, 18, 19.) The
counseling ban statute prohibits licensed professionals such as Plaintiff from engaging in such
voluntary counseling under threat of fines and disciplinary action. (V. Compl., Ex. A, SB 1028 at
5–6.) SB 1028 carves out individualized exceptions for counseling that affirms and commends
cross-gender identity, thereby punishing only the viewpoint that such attractions, behaviors, or
The statute purports to be aimed at protecting minors from harm caused by Plaintiff’s
counseling, but recites no legitimate evidence of harm from such counseling which is voluntarily
sought, given, and received. (V. Compl. ¶¶ 23–41; Doyle Decl. ¶¶ 15–17.) SB 1028 will prevent
Plaintiff’s clients from continuing to progress in their self- and individually-determined courses of
counseling, and from continuing to receive counseling in accordance with their sincerely held
religious beliefs. (V. Compl. ¶¶ 106, 107, 138–141; Doyle Decl. ¶¶ 16, 18, 21.) In addition,
SB 1028 will adversely affect the ability of Plaintiff and other Maryland professionals to counsel
future clients who have requested or will request counseling for unwanted same-sex attractions,
behaviors, or identity, or gender identity conflicts, because the counseling ban will require Plaintiff
5
and other professionals to stop providing or decline to provide such voluntary counseling. (V.
Compl. ¶¶ 134–35.)
2009 APA Report, the accompanying APA Resolution, and twelve position documents of various
organizations that neither supplement, update, or otherwise augment the APA Report. (V. Compl.
The APA Report does not use the political term “conversion therapy” like SB 1028. Rather,
the APA Report uses “the term sexual orientation change efforts (SOCE) to describe methods (e.g.,
approaches) that aim to change a person’s same-sex sexual orientation to other-sex, regardless of
whether mental health professionals or lay individuals (including religious professionals, religious
leaders, social groups, and other lay networks, such as self-help groups) are involved.” (V. Compl.
The APA Report discloses up front, and repeatedly throughout, that there is no empirical
or other research supporting any conclusions regarding either efficacy or harm from SOCE,
especially in children and adolescents. (V. Compl. Ex. A, APA Rep., at 3 (“[T]he recent SOCE
research cannot provide conclusions regarding efficacy or safety . . . .”), 7 (“The research on
SOCE has not adequately assessed efficacy and safety.”), 37 (“These [recent] studies all use
designs that do not permit cause-and-effect attributions to be made.”), 42 (“[T]he recent studies
do not provide valid causal evidence of the efficacy of SOCE or of its harm . . . .”), 42 (“[T]he
nature of these studies precludes causal attributions for harm or benefit to SOCE . . . .”), 42
6
(“We conclude that there is a dearth of scientifically sound research on the safety of SOCE. . . .
Thus, we cannot conclude how likely it is that harm will occur from SOCE.”), 72 (“There is a
lack of published research on SOCE among children.”), 73 (“We found no empirical research
on adolescents who request SOCE . . . .”), 91 (“We concluded that research on SOCE . . . has
not answered basic questions of whether it is safe or effective and for whom.”), 91 (“[S]exual
orientation issues in children are virtually unexamined.”) (all emphases added).) None of the
other Sources adds anything to the empirical record unequivocally found to be lacking in the APA
Report.3
the APA Report looked to participants’ perceptions of SOCE, “in order to examine what may be
perceived as being helpful or detrimental by such individuals, distinct from a scientific evaluation
of the efficacy or harm . . . .” (V. Compl. Ex. A, APA Rep., at 49.) The review did not show
evidence of one outcome over the other. “[S]ome recent studies document that there are people
who perceive that they have been harmed through SOCE, just as other recent studies document
that there are people who perceive that they have benefited from it.” (V. Compl. Ex. A, APA Rep.,
at 42 (citations omitted).)
Nonetheless, the task force found several reported benefits of SOCE perceived by
participants: “(a) a place to discuss their conflicts; (b) cognitive frameworks that permitted them
3
One of the Sources cited in the SB 1028 Preamble recites statistics of harm purportedly
caused by “family rejection” but excludes any claim of a causal link, or even a correlation, with
SOCE. (V. Compl. Ex. A, SB 1028, at 4 (citing “study published in 2009 in the journal
‘Pediatrics’”).)
7
to reevaluate their sexual orientation identity, attractions, and selves in ways that lessened
shame and distress and increased self-esteem; (c) social support and role models; and (d)
strategies for living consistently with their religious faith and community.” (V. Compl. Ex. A,
APA Rep., at 49 (emphasis added) (citations omitted).) “Participants described the social support
The task force also observed that perceptions of harm may correlate specifically to
“aversion techniques.” (V. Compl. Ex. A, APA Rep., at 41 (“Early research on efforts to change
sexual orientation focused heavily on interventions that include aversion techniques. Many of
these Studies did not set out to investigate harm. Nonetheless, these studies provide some
suggestion that harm can occur from aversive efforts to change sexual orientation.” (emphasis
The task force also found that individuals’ religious beliefs shape their experiences and outcomes:
4
One of the Sources cited in the SB 1028 Preamble addresses only aversion therapy. (V.
Compl. Ex. A, SB 1028, at 2 (citing “a report in 1994” by The American Medical Association
Council on Scientific Affairs).)
8
(V. Compl. Ex. A, APA Rep., at 50 (emphasis added) (citations omitted).) “The participants had
multiple endpoints, including LGB identity, ‘ex-gay’ identity, no sexual orientation identity, and
a unique self-identity.” (Id.) “Further, the findings suggest that some participants may have
emphasis added).)
review to sexual orientation and did not address gender identity . . . .” (V. Compl. Ex. A, APA
Rep., at 9 (emphasis added).) Another Source cited by SB 1028, however, points to the same lack
(Stewart L. Adelson, M.D., The American Academy of Child and Adolescent Psychiatry
(AACAP) Committee on Quality Issues, Practice Parameter on Gay, Lesbian, or Bisexual Sexual
Orientation, Gender Nonconformity, and Gender Discordance in Children and Adolescents, 51(9)
J. Am. Acad. Child & Adolescent Psychiatry 957, 968 (2012) [hereinafter AACAP Statement],
Also:
5
The AACAP Statement is cited in SB 1028 as follows: “The American Academy of Child
and Adolescent Psychiatry published in 2012 an article in its journal entitled ‘The Journal of the
American Academy of Child and Adolescent Psychiatry . . . .’” (V. Compl. Ex. A, SB 1028, at 3.)
9
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 . . . .
As with the APA Report, the AACAP Statement leaves discretion with the licensed
professional to make an informed decision, with the patient, about the most appropriate treatment.
(AACAP Statement at 969 (“As an ethical guide to treatment, ‘the clinician has an obligation to
inform parents about the state of the empiric database’ . . . .” (footnote omitted), 971 (“The ultimate
judgment regarding the care of a particular patient must be made by the clinician in light of all of
the circumstances presented by the patient and that patient’s family, the diagnostic and treatment
The APA itself more recently addressed issues of gender identity and minors which were
not included in the APA Report. (Am. Psychol. Ass’n, Guidelines for Psychological Practice with
Transgender and Gender Nonconforming People, 70(9) Am. Psychologist 832 (2015) [hereinafter
discussion separate from SOCE, these later Guidelines make the point that “[t]he constructs of
gender identity and sexual orientation are theoretically and clinically distinct, even though
professionals and nonprofessionals frequently conflate them.” (APA TGNC Guidelines at 835.)
Nonetheless, the APA recognized the same absence of research on gender identity change in
children: “Due to the evidence that not all children persist in a TGNC identity into adolescence or
adulthood, and because no approach to working with TGNC children has been adequately,
empirically validated, consensus does not exist regarding best practice with prepubertal
children.” (Id. at 842 (emphasis added).) One distinct approach recognized by the APA “to address
gender identity concerns in children” is an approach where “children are encouraged to embrace
10
their given bodies and to align with their assigned gender roles.” (Id.) And again, calling for more
research, the APA concludes, “It is hoped that future research will offer improved guidance in
Notwithstanding the APA’s call for future research, however, the APA expressly
sanctioned as imperative allowing a minor who has selected a gender identity different from his
Other literature by a research scientist favorably cited in the AACAP Statement positively
advances treatment to assist children in fading “cross-gender identity” by the time they reach
and Peer-Based Treatment Protocol, 7 Clinical Psychol. and Psychiatry 360, 361 (2002)
[hereinafter Meyer-Bahlburg] (“We expect that we can diminish these problems if we are able to
speed up the fading of the cross-gender identity which will typically happen in any case.”) (cited
by AACAP Statement at 969 n.100); see also Meyer-Bahlburg at 365 (“The specific goals we have
for the boy are to develop a positive relationship with the father (or a father figure), positive
relationships with other boys, gender-typical skills and habits, to fit into the male peer group or at
least into a part of it, and to feel good about being a boy.”).)
11
4. The APA Report Commends a Client-Directed
Approach to Therapy for Clients with Unwanted Same-
Sex Attractions, Commends More Research on
Voluntary SOCE, and Condemns Only Coercive
Therapies.
For adults desiring “to change their sexual orientation or their behavioral expression of
their sexual orientation, or both,” the APA reported that “adults perceive a benefit when they are
“respect for the client’s values, beliefs, and needs,” and “permission and opportunity to explore
a wide range of options . . . without prioritizing a particular outcome.” (V. Compl. Ex. A, APA
(V. Compl. Ex. A, APA Rep., at 5 (emphasis added).) “For instance, the existing research indicates
that possible outcomes of sexual orientation identity exploration for those distressed by their
sexual orientation may be: LGB identities[,] Heterosexual sexual orientation identity[,]
Disidentifying from LGB identities[, or] Not specifying an identity.” (Id. at 60 (emphasis added)
(citations omitted).)6
6
In connection with its SOCE review and recommendations, the APA Report highlighted a
problem with the sexual orientation terminology in the academic research:
Recent studies of participants who have sought SOCE do not
adequately distinguish between sexual orientation and sexual
orientation identity. We concluded that the failure to distinguish
these aspects of human sexuality has led SOCE research to obscure
12
A key finding from the task force’s review “is that those who participate in SOCE,
regardless of the intentions of these treatments, and those who resolve their distress through
other means, may evolve during the course of their treatment in such areas as self-awareness,
self-concept, and identity.” (V. Compl. Ex. A, APA Rep., at 66 (bold emphasis added); id. at 61
(“Given . . . that many scholars have found that both religious identity and sexual orientation
identity evolve, it is important for LMHP to explore the development of religious identity and
The task force identifies the same essential framework “for children and adolescents
who present a desire to change either their sexual orientation or the behavioral expression of their
sexual orientation, or both, or whose parent or guardian expresses a desire for the minor to
change.”7 (V. Compl. Ex. A, APA Rep., at 5 (emphasis added).) Specifically, for children and
services should also be provided in the least restrictive setting that is clinically possible and should
13
including whenever possible a developmentally appropriate informed consent to treatment.”
The task force also highlighted the ethical importance of client self-determination,
encompassing “the ability to seek treatment, consent to treatment, and refuse treatment. The
psychotherapy.” (V. Compl. Ex. A, APA Rep., at 68 (emphasis added); see also id. at 6 (“LMHP
assumptions and goals, without preconditions on the outcome [and] permitting the client to
decide the ultimate goal of how to self-identify and live out her or his sexual orientation. . . .
[T]herapy that increases the client’s ability to cope, understand, acknowledge, and integrate sexual
The task force viewed the concept of self-determination as equally important for minors:
“It is now recognized that adolescents are cognitively able to participate in some health care
treatment decisions, and such participation is helpful. [The APA] encourage[s] professionals to
seek the assent of minor clients for treatment.” (V. Compl. Ex. A, APA Rep., at 74 (emphasis
added) (citations omitted); see also id. at 77 (“The ethical issues outlined [for adults] are also
In light of this strong self-determination ethic regarding youth, the task force
“recommend[ed] that when it comes to treatment that purports to have an impact on sexual
orientation, LMHP assess the adolescent’s ability to understand treatment options, provide
developmentally appropriate informed consent to treatment, and, at a minimum, obtain the youth’s
assent to treatment.” (Id. at 79.) “[F]or children and adolescents who present a desire to change
their sexual orientation or their behavioral expression of their sexual orientation, or both, or whose
14
guardian expresses a desire for the minor to change,” the task force recommended “approaches
[that] support children and youth in identity exploration and development without seeking
predetermined outcomes.” (Id. at 79–80.) “LMHP should strive to maximize autonomous decision
making and self-determination and avoid coercive and involuntary treatments.”8 (Id. at 76.) “The
use of inpatient and residential treatments for SOCE is inconsistent with the recommendations of
Apart from recommending against coercive, involuntary, and residential treatments, the
task force did not recommend the end of SOCE. Rather, without empirical evidence of SOCE
efficacy or harm, the task force merely recommended that clients not be lead to expect a change
in sexual orientation through SOCE. (V. Compl. Ex. A, APA Rep., at 66.) Indeed, the task force
cited literature expressly cautioning against declining SOCE therapy for a client who requests
it.
LMHP who turn down a client’s request for SOCE at the onset of
treatment without exploring and understanding the many reasons
why the client may wish to change may instill hopelessness in the
client, who already may feel at a loss about viable options. . . .
[B]efore coming to a conclusion regarding treatment goals,
LMHP should seek to validate the client’s wish to reduce
suffering and normalize the conflicts at the root of distress, as
well as create a therapeutic alliance that recognizes the issues
important to the client.
8
The APA Report defines “coercive treatments as practices that compel or manipulate a
child or adolescent to submit to treatment through the use of threats, intimidation, trickery, or some
other form of pressure or force.” (V. Compl. Ex. B, APA Rep., at 71 n.59.) It defines “involuntary
treatment as that which is performed without the individual’s consent or assent and which may be
contrary to his or her expressed wishes.” (Id. at 71 n.60.)
15
The task force also called for more research on SOCE. (V. Compl. Ex. A, APA Rep., at 91
(“Any future research should conform to best-practice standards for the design of efficacy
research. Additionally, research into harm and safety is essential.”), 91 (“Future research will
have to better account for the motivations and beliefs of participants in SOCE.”), 91 (“This line
of research should be continued and expanded to include conservatively religious youth and
The task force also noted, “The debate surrounding SOCE has become mired in ideological
disputes and competing political agendas.” (V. Compl. Ex. A, APA Rep., at 92 (citation omitted).)
One policy recommendation “urges the APA to: . . . Encourage advocacy groups, elected officials,
policymakers, religious leaders, and other organizations to seek accurate information and avoid
promulgating inaccurate information.” (Id. (emphasis added).) The task force’s call for future
research implicitly rejected the suggestion by some that “SOCE should not be investigated or
Given the absence of empirical evidence on SOCE outcomes, and the emphasis on client-
centered approaches, the task force recommended that choosing SOCE counseling be given to the
In weighing the harm and benefit of SOCE, LMHP can review with
clients the evidence presented in this report. Research on harm from
SOCE is limited, and some of the research that exists suffers from
methodological limitations that make broad and definitive
conclusions difficult. . . .
16
(V. Compl. Ex. A, APA Rep., at 67 (emphasis added) (citations omitted); see also id. at 6 (“LMHP
reduce potential harm and increase potential benefits by basing their scientific and professional
judgments and actions on the most current and valid scientific evidence, such as the evidence
conservative religious faiths who “struggle to live life congruently with their religious beliefs,”
and that this stress “had mental health consequences.” (V. Compl. Ex. A, APA Rep., at 46–47.)
“Some conservatively religious individuals felt a need to change their sexual orientation because
of the positive benefits that some individuals found from religion . . . .” (Id. at 47.) Thus, the task
force “proposed an approach that respects religious values and welcomes all of the client’s actual
and potential identities by exploring conflicts and identities without preconceived outcomes. This
approach does not prioritize one identity over another and may aide a client in creating a sexual
orientation identity consistent with religious values.” (V. Compl. Ex. A, APA Rep., at 67 (citation
omitted).) “Although there are tensions between religious and scientific perspectives, the task force
and other scholars do not view these perspectives as mutually exclusive.” (V. Compl. Ex. A, APA
ARGUMENT
In the Fourth Circuit, Plaintiff can obtain a preliminary injunction if he establishes “‘[1]
that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the
absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an
injunction is in the public interest.’” Centro Tepeyac v. Montgomery Cnty., 722 F.3d 184, 188 (4th
17
Cir. 2013) (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)).
Defendants face a much higher burden to prove the Constitutionality of SB 1028 under the
applicable constitutional standards. (See infra Part I.D.2.) Defendants bear the burden of
demonstrating that SB 1028 satisfies strict scrutiny. As the Supreme Court held, “the burdens at
the preliminary injunction stage track the burdens at trial.” Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 429 (2006). Thus, on a preliminary injunction
motion, the government—not the movant—bears the burden of proof on narrow tailoring,
because the government bears that burden at trial. Ashcroft v. ACLU, 542 U.S. 656, 665 (2004)
(holding, on preliminary injunction motion, “the burden is on the government to prove that the
proposed alternatives will not be as effective as the challenged statute.” (emphasis added)).
Defendants indisputably bear the burden of proving narrow tailoring at trial. See, e.g., United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts
speech, the Government bears the burden of proving the constitutionality of its actions.”); id. at
2540 (“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 simply that the chosen route is easier” (emphasis added)). Plaintiff “must be deemed
likely to prevail unless the government has shown that . . . proposed less restrictive alternatives
are less effective than enforcing the act.” Ashcroft, 542 U.S. at 666 (emphasis added). Accordingly,
18
Defendants bear—and cannot carry (see infra Parts I.D.2, 4)—the burden of proving narrow
tailoring here. See Gonzales, 546 U.S. at 429; Ashcroft, 542 U.S. at 665.
The apparent rationale for SB 1028, as for similar statutes across the country, is that it is a
permissible regulation of “professional conduct” that is subject to only rational basis review.
According to recent Supreme Court pronouncements, however, that argument is fatally flawed in
two respects: The SOCE counseling prohibited by SB 1028 is speech, not conduct, and there is no
separate category of “professional speech” for which the Court has relaxed rigorous strict scrutiny
review. See Nat’l Inst. for Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371–72 (2018)
[hereinafter NIFLA] (“[T]his Court has not recognized ‘professional speech’ as a separate category
of speech. Speech is not unprotected merely because it is uttered by professionals.”); see also Reed
v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015); Holder v. Humanitarian Law Project, 561 U.S.
1, 27 (2010) (“The Government is wrong that the only thing actually at issue in this litigation is
conduct . . . . [The statute] regulates speech on the basis of its content.”); Legal Servs. Corp. v.
Velazquez, 531 U.S. 533 (2001) (holding federal act providing litigation funding to private
advice on certain subjects); NAACP v. Button, 371 U.S. 415, 438 (1963) (“[A] state may not, under
Indeed, as the NIFLA Court reiterated barely seven months ago, sanctioning the
government’s cunning labelling of a professional’s speech as “conduct” would eviscerate the First
Amendment protections guaranteed to doctors, lawyers, nurses, mental health professionals, and
many others:
19
a group’s First Amendment rights by simply imposing a licensing
requirement. States cannot choose the protection that speech
receives under the First Amendment, as that would give them a
powerful tool to impose invidious discrimination on disfavored
subjects.
A viewpoint-based restriction on private speech has never been upheld by the Supreme
Court, or any court. Indeed, a finding of viewpoint discrimination is dispositive. See Sorrell v. IMS
Health, 564 U.S. 552, 571 (2011). “It is axiomatic that the government may not regulate speech
based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 828 (1995). “When the government targets not subject matter, but
particular views taken by speakers on a subject, the violation of the First Amendment is all the
more blatant.” Id. at 829. In fact, viewpoint-based regulations are always unconstitutional. See,
e.g., Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (“‘[T]he
First Amendment forbids the government to regulate speech in ways that favor some viewpoints
or ideas at the expense of others.’”); Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.
788, 806 (1985) (“[T]he government violates the First Amendment when it denies access to a
speaker solely to suppress the point of view he espouses . . . .”); see also Columbia Union Coll. v.
9
The recent en banc Eleventh Circuit decision in Wollschlaeger v. Florida also supports the
conclusion that SB 1028 bans protected speech. There, the entire Eleventh Circuit recognized that
“characterizing speech as conduct is a dubious constitutional enterprise.” 848 F.3d 1293, 1309
(11th Cir. 2017) (en banc) (emphasis added). In the same breath, the court presciently observed,
“There are serious doubts about whether Pickup [v. Brown] was correctly decided.” Id.; cf. NIFLA,
138 S. Ct. at 2371–72 (abrogating by name counseling ban decisions in Pickup v. Brown, 740 F.3d
1208, 1227–1229 (9th Cir. 2014), and King v. Governor of New Jersey, 767 F.3d 216, 232 (3d Cir.
2014)) (“This Court's precedents do not recognize such a tradition for a category called
‘professional speech.’”).
20
Clarke, 159 F.3d 151, 156 (4th Cir. 1998) (holding Maryland infringed on private religious
college’s free speech rights by establishing program to provide financial support for private
colleges but denying funding to religious college solely based on religious viewpoint).
SB 1028 exemplifies viewpoint discrimination. On its face, SB 1028 defines its byword
“conversion therapy” to prohibit talk therapy that helps a client “eliminate or reduce sexual or
romantic attractions or feelings toward individuals of the same gender.” (V. Compl., Ex. A,
SB 1028, at 5 (emphasis added).) So defined, it prohibits the particular viewpoint that unwanted
same-sex attraction can be reduced or eliminated to the benefit of a client who wants such
counseling, for the counselor’s even saying so would be caught up in the broad “practice or
treatment” and “any effort to change” language of the counseling ban. Conversely, the plain
for the same client who wants to reduce or eliminate them. (Id.)
Thus, SB 1028 prohibits counseling that affirms a minor client’s desire to change his
his own concept of self and biological identity, but allows counseling on the same subject matter
that affirms or commends the development of a changing sexual orientation. Thus also, SB 1028
prohibits counseling that affirms a minor’s seeking to eliminate gender identity conflict or, having
already transitioned to a cross-gender identity, to de-transition and conform his gender identity to
his own concept of self and biological identity, while allowing counseling that affirms and
commends a minor’s transitioning from his or her biological gender identity to a cross-gender
identity. There can be no question that SB 1028 discriminates against the viewpoint disfavored by
Maryland.
21
The Supreme Court and several other courts have invalidated regulations of professional
speech as unconstitutional viewpoint discrimination. See, e.g., NIFLA, 138 S. Ct. at 2371–72;
Sorrell, 564 U.S. at 580; Velazquez, 531 U.S. at 548–49; Conant v. Walters, 309 F.3d 629 (9th Cir.
2002). In these cases, the courts recognized the axiomatic truth that the government is not
permitted to impose its viewpoint on speakers, even if they are professionals subject to licensing
In Velazquez, the Supreme Court addressed a restrictive federal funding law that operated
in the same viewpoint-based manner as SB 1028. The law provided grant funding to private legal
aid attorneys who accepted certain welfare cases, but prohibited grant funding to attorneys if they
challenged welfare laws on behalf of their clients. Velazquez, 531 U.S. at 536–39. The Court
invalidated the law as viewpoint discriminatory, because it had the effect of prohibiting “advice or
argumentation that existing welfare laws are unconstitutional or unlawful,” and thereby excluded
certain “vital theories and ideas” from the lawyers’ representation. Id. at 547–49.
In Conant, the Ninth Circuit invalidated a federal policy that punished physicians for
communicating with their patients about the benefits or options of marijuana as a potential
treatment. 309 F.3d at 633. The court explained that the doctor-patient relationship is entitled to
Id. at 636 (emphasis added). The court also observed that, far from being a First Amendment
orphan, such professional speech “‘may be entitled to the strongest protection our Constitution has
to offer.’” Id. at 637 (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)). The
court held that the ban impermissibly regulated physician speech based on viewpoint:
22
The government’s policy in this case seeks to punish physicians on
the basis of the content of doctor-patient communications. Only
doctor-patient conversations that include discussions of the medical
use of marijuana trigger the policy. Moreover, the policy does not
merely prohibit the discussion of marijuana; it condemns
expression of a particular viewpoint, i.e., that medical
marijuana would likely help a specific patient. Such
condemnation of particular views is especially troubling in the First
Amendment context.
Id. at 637–38 (emphasis added). The court rejected as inadequate the government’s justification
that the policy prevented clients from engaging in harmful behavior, and permanently enjoined
SB 1028 here operates almost identically to the federal policy enjoined in Conant. Just as
the policy in Conant prohibited physicians from speaking about the benefits of marijuana to a
suffering patient, so does SB 1028 prohibit counselors from speaking about the potential for
beneficial counseling to aid a client in reducing or eliminating unwanted sexual or gender identity
conflicts. In both cases, the law expresses a preference for the message the government approves,
and disdain—with attached punishment—for the viewpoint the government abhors. As was true
discrimination.
presumptively unconstitutional and may be justified only if the government proves that they are
narrowly tailored to serve compelling government interests.” Reed, 135 S. Ct. at 2226; see also
R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992) (“[T]he danger of censorship presented by a
23
facially content-based statute requires that that weapon be employed only where it is ‘necessary to
serve the asserted [compelling] interest.’” (alteration in original) (citations omitted)). Put simply,
the Supreme Court has handed down a firm rule: laws that are content based on their face must
Importantly, this firm rule mandating strict scrutiny of facially content-based restrictions
applies regardless of the government’s alleged purpose in enacting the law. Reed, 135 S. Ct. at
2227 (“On its face, the [law] is a content-based regulation of speech. We thus have no need to
consider the government’s justifications or purposes for enacting the [law] to determine whether
it is subject to strict scrutiny.”). In so holding, the Court rejected the lower court’s rationale that
the alleged purpose behind enacting a content-based law can justify subjecting it to diminished
constitutional protection. Id. “[T]his analysis skips the crucial first step . . . determining whether
the law is content neutral on its face.” Id. at 2228. The answer to that question, the Reed Court
said, is dispositive of the level of scrutiny applicable to the regulation of speech. Id. “A law that
is content based on its face is subject to strict scrutiny regardless of the government’s benign
motive, content-neutral justification, or lack of animus toward the ideas contained in the
regulated speech.” Id. (emphasis added). “[A]n innocuous justification cannot transform a
As NIFLA made clear, this rule also applies to content-based restrictions on the speech of
licensed professionals. NIFLA, 138 S. Ct. at 2371-72. “[T]his Court has not recognized
‘professional speech’ as a separate category of speech. Speech is not unprotected merely because
24
to say that the purpose of these regulations was merely to insure
high professional standards and not to curtail free expression.
135 S. Ct. at 2229 (citing Button, 371 U.S. at 438–39) (emphasis added).
Thus, content-based laws must satisfy strict scrutiny, even if targeted at licensed
professionals. Reed, 135 S. Ct. at 2229. There are no exceptions to this rule. 10 Indeed, the notion
First Amendment jurisprudence that last term we found it so ‘obvious’ as to not require
explanation.” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105,
115-16 (1991). The burden is on Defendants to prove that SB 1028’s content-based and
presumptively invalid restrictions can satisfy strict scrutiny, and Defendants cannot meet that
burden.
of SB 1028 under the strict scrutiny standard. And in this First Amendment context, the
speech-restrictive law with widespread impact” is at issue, “the government must shoulder a
10
The concurring Justices remove any doubt of the concrete nature of the rule. See, e.g., Reed,
135 S. Ct. at 2233 (Alito, J., concurring) (“As the Court holds, what we have termed ‘content-
based’ laws must satisfy strict scrutiny.”); id. at 2234 (Breyer, J., concurring) (noting under
majority’s rule finding of content discrimination is “an automatic strict scrutiny trigger.”
(emphasis added)); id. at 2236 (Kagan, J., concurring in the judgment) (“Says the majority, when
laws single out specific subject matter, they are facially content based; and when they are facially
content based, they are automatically subject to strict scrutiny.” (emphasis added)).
25
rights.” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2472
(2018) (emphasis added). Here, because SB 1028 infringes upon the free speech rights of licensed
medical professionals, the government “must do more than simply posit the existence of the
disease sought to be cured. It must demonstrate that the recited harms are real, not merely
conjectural.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994); see also Edenfield v.
Fane, 507 U.S. 761, 770 (1993) (recognizing government regulation of professional speech not
supportable by “mere speculation or conjecture”); Landmark Commc’ns, Inc. v. Virginia, 435 U.S.
829, 841 (1978) (“The Commonwealth has offered little more than assertion and conjecture to
support its claim . . . .”). This is so because “[d]eference to legislative findings cannot limit judicial
inquiry when First Amendment rights are at stake.” Landmark Commc’ns, 435 U.S. at 843.
Courts have not hesitated to invalidate laws that impose restrictions on speech based on
supposition and conjecture, rather than empirical evidence. In Edenfield, where the government
sought to restrict the speech of licensed accountants, the government “presented no studies” and
relied upon a record that “contain[ed] nothing more than a series of conclusory statements that add
little if anything” to the government’s effort to regulate certain speech. 507 U.S. at 771. Also, the
government relied upon a report of an independent organization to bolster its claims of harm, but—
exactly as the APA Report does in this case—the report there admitted that it was “unaware of the
existence of any empirical data supporting the theories” of alleged harm. Id. at 772 (emphasis
added). Because of the lack of evidence of harm, the Supreme Court invalidated the restriction as
a violation of the accountants’ First Amendment rights. In Sable Commc’ns of Cal., Inc. v. FCC,
492 U.S. 115 (1989), the Supreme Court again confronted a record (like here) where there was
nothing more than anecdote and suspicion of harm behind a total prohibition on the targeted
speech. 492 U.S. at 129. There was no record evidence “aside from conclusory statements during
26
the debates by proponents of the bill” and the record “contain[ed] no evidence” concerning the
alleged effectiveness of other alternatives. Id. Because of that failure, the Supreme Court
means of advancing Maryland’s claimed governmental interests. See Boos v. Berry, 485 U.S. 312,
329 (1988) (explaining when content-based restrictions on speech are analyzed under strict
scrutiny, a law “is not narrowly tailored [where] a less restrictive alternative is readily available”);
Ward v. Rock Against Racism, 491 U.S. 781, 798 n.6 (1989) (noting under “the most exacting
restrictive alternative to pass narrow tailoring). Plaintiff “must be deemed likely to prevail unless
the government has shown that . . . proposed less restrictive alternatives are less effective than
To satisfy the narrow tailoring prong of their strict scrutiny burden, Defendants must show
that Maryland “seriously undertook to address the problem with less intrusive tools readily
available to it.” McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014) (emphasis added). “To meet
11
The Eleventh Circuit, too, has invalidated laws regulating professional speech when the
alleged harm purportedly being addressed was unsupported by concrete evidence. In Mason v.
Florida Bar, 208 F.3d 952 (11th Cir. 2000), the government attempted to regulate the speech of
attorneys, but “presented no studies, nor empirical evidence of any sort to suggest” that the
harm they were positing was real, rather than merely conjectural. 208 F.3d at 957 (emphasis
added). The Eleventh Circuit held that, to survive scrutiny, the government “has the burden . . . of
producing concrete evidence” of the alleged harm prior to restricting the protected speech of
licensed professionals. Id. at 958 (emphasis added). Indeed, it held that when there are “glaring
omissions in the record of identifiable harm,” the government has not satisfied “its burden to
identify a genuine threat of danger.” Id. (emphasis added).
27
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 simply
that the chosen route is easier.” Id. at 2540. Thus, Defendants “would have to show either that
substantially less-restrictive alternatives were tried and failed, or that the alternatives were
closely examined and ruled out for good reason.” Bruni v. City of Pittsburgh, 824 F.3d 353, 370
(3d Cir. 2016) (emphasis added); see also Reynolds v. Middleton, 779 F.3d 222, 231 (4th Cir.
2015) (“As the Court explained in McCullen . . . the burden of proving narrow tailoring requires
the [government] to prove that it actually tried other methods to address the problem.”).
compelling interest supporting SB 1028. The Preamble merely recites, “Maryland has a
compelling interest in protecting the physical and psychological well–being of minors, including
LGBT youth, and in protecting minors against exposure to serious harm caused by sexual
orientation change efforts . . . .” (V. Compl. Ex. A, SB 1023, at 4.) This bald assertion of “serious
harm” not only misrepresents the Sources in the preceding recitals, but also is insufficient as a
matter of law to establish a compelling interest. As shown in Part B of the Statement of Facts,
supra, Defendants cannot point to any empirical or concrete evidence of harm to justify SB 1028.
The Wollschlaeger court taught that laws targeting the content of certain doctor-patient or
counselor-client communications cannot be justified by the “paternalistic assertion that the policy
was valid because patients might otherwise make bad decisions” if left to determine the best course
of counseling for themselves. 848 F.3d at 1310. Maryland “does not have carte blanche to restrict
the speech of doctors and medical professionals on a certain subject without satisfying the demands
[of the First Amendment].” Id. at 1314. Indeed, just because Maryland “may generally believe
28
that doctors and medical professionals should not ask about, nor express views hostile to, [a certain
position], it ‘may not burden the speech of others in order to tilt the public debate in a preferred
direction.’” Id. at 1313–14 (quoting Sorrell, 564 U.S. at 578–79). Where, as here, “[t]he record
demonstrates that some patients do not object to questions and advice about [the prohibited content
of speech], and some even express gratitude for their doctor’s discussion of the topic,” a law is
unconstitutional if it “does not provide for such patients a means by which they can hear from their
doctors on the topic.” Id. at 1313. There are no such means provided in SB 1028 for clients who
Furthermore, SB 1028 undermines several specific admonitions from the APA Report and
related Sources, such as the APA imperative that minors be allowed to return to their biological
gender, even after identifying as the other gender for a period of time. (See supra Stmt. Facts Part
B.3.) SB 1028 also, for example, requires therapists such as Plaintiff to cut off counseling with
clients who express a desire to alleviate their conflicted sexual or gender identities, which directly
contradicts the APA Report’s admonition to explore a client’s identity issues instead of declining
them outright, and Maryland’s compulsory ethical regulation not to abandon or neglect clients.
(See supra Stmt. Facts Part B.4; Md. Code Regs. 10.58.03.05.A(2)(a) (“A counselor may not . . .
Abandon or neglect clients in counseling . . . .”) Thus, SB 1028 prohibits counselors from assisting
minors with change decisions even the APA expressly endorses, and otherwise creates harm
identified by the APA and pre-existing Maryland law rather than reducing any.
least restrictive means for advancing Maryland’s purported interests or that the statute is otherwise
narrowly tailored. Even if Defendants could conjure a compelling interest for SB 1028’s ban on
29
voluntary SOCE counseling, Defendants could not meet their burden of showing that the statute is
narrowly tailored. “It is not enough to show that the Government’s ends are compelling; the means
must be carefully tailored to achieve those ends.” Sable Commc’ns, 492 U.S. at 126. There must
be a ‘fit between the . . . ends and the means chosen to accomplish those ends.’” Wollschlaeger,
SB 1028 woefully fails narrow tailoring. It is not necessary to prevent harm (none has been
established), and existing Maryland laws and regulations already prohibit practices that actually
harm clients. (V. Compl. ¶¶ 53–76.) These pre-existing, comprehensive provisions already protect
minors, and carry legal sanctions for violators, without suppressing speech. Under R.A.V., if
Maryland had content-neutral means of preventing the alleged harm, failing to employ those means
demonstrates that SB 1028 is not narrowly tailored as a matter of law. R.A.V., 505 U.S. at 395.
Moreover, if Maryland is concerned with possible harms to minors from being subjected
to counseling involuntarily or coercively, Maryland could have banned those practices without
indiscriminately outlawing voluntary SOCE counseling for willing clients. State-dictated informed
consent requirements would be another less restrictive means to advance Maryland’s purported
interests. To be sure, when legislation virtually identical to SB 1028 was being debated in
California, several mental health organizations recognized that such “legislation is attempting to
undertake an unprecedented restriction on psychotherapy.” (V. Compl. ¶ 152 & Ex. E at 1.) They
proposed informed consent language that would have been much more narrowly tailored than
SB 1028’s unprecedented intrusion into the relationship between counselor and willing client.
(Id.).
Furthermore, if the purpose of SB 1028 is to protect minors from the purported harms of
30
tailoring. See NIFLA, 138 S. Ct. at 2376 (quoting Brown v. Entertainment Merchants Assn., 564
U.S. 786, 802 (2011)). The ban regulates only licensed professionals, necessarily excluding
“conversion therapy” offered by unlicensed religious counselors and clergy. If Maryland genuinely
believes all “conversion therapy” is harmful to minors, then exempting unlicensed religious
counselors and clergy from regulation makes no sense. Maryland has the authority and police
power to regulate conduct by adults that is considered harmful to children, whether or not those
adults are religious or part of a religious institution. Moreover, in particular situations where the
expertise and training of a licensed counselor can help ease a minor’s distress over sexual or gender
identity conflicts, forcing the minor to seek help from only unlicensed counselors may cause more
The APA Report is especially relevant here because, not only does it fail to present
empirical evidence of harm from any kind of SOCE counseling, its non-empirical, anecdotal
reporting of harm does not differentiate between SOCE from licensed professionals and SOCE
from religious organizations or persons. (See supra Stmt. Facts Part B.1.) Thus, Maryland cannot
justify the underinclusivity of SB 1028 on any claimed difference in harm between licensed SOCE
and unlicensed religious SOCE, still further undermining any notion of narrow tailoring.
Prior restraints against constitutionally protected expression are highly suspect and
disfavored. See Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992). In fact, “any
system of prior restraints comes to this Court bearing the heavy presumption against its
constitutional validity.” Bantham Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
12
Plaintiff does not concede or posit that SB 1028 would be constitutional if it included
unlicensed religious counselors or clergy in its prohibitions, or imply that religious counselors or
clergy cause harm to minors when appropriately consulted on matters within their competencies.
31
Total prohibitions constitute prior restraints. See 11126 Baltimore Blvd., Inc. v. Prince
George’s Cnty., Md., 58 F.3d 988, 994–95 (4th Cir. 1995) abrogated on other grounds by City of
Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) (distinguishing as prior restraint county
ordinance prohibiting adult bookstores anywhere in county unless special exception obtained, from
permissible ordinance restricting stores to only zoned locations). As was true of the total ban on
adult bookstores in 11126 Baltimore Blvd., SB 1028 goes beyond merely regulating the time and
place of counseling speech to totally banning a category of counseling speech with minors
everywhere in the State, even if voluntarily sought. Moreover, there is no permit to be obtained
excepting some counselors or some places from the ban. Such bans are subject to prior restraint
A law is unconstitutionally vague and overbroad if it “either forbids or requires the doing
of an act in terms so vague that [persons] of common intelligence must necessarily guess at its
meaning and differ as to its application.” Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926).
Government policies “must be so clearly expressed that the ordinary person can intelligently
choose, in advance, what course it is lawful for him to take.” Id. at 393. “Precision of regulation”
is the touchstone of the First Amendment. Button, 371 U.S. at 435. “It is a basic principle of due
process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972). While all regulations must be reasonably clear,
“laws which threaten to inhibit the exercise of constitutionally protected” expression must satisfy
“a more stringent vagueness test.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 499 (1982). Such a law must give “adequate warning of what activities it proscribes”
and must “set out explicit standards for those who apply it.” See Broadrick v. Oklahoma, 413 U.S.
32
SB 1028 does not fulfill either requirement and thus forces both mental health professionals
and those enforcing the law to guess at its meaning and differ as to its application. Because sexual
orientation and gender identity are fluid and changing concepts, licensed professionals are left to
guess about what they are permitted to say to their clients who present with sexual or gender
identity conflicts. (See, e.g., V. Compl. Ex. B, APA Rep., at 2 (declaring “scientific fact” that
“[s]ame-sex sexual attractions and behavior occur in the context of a variety of sexual orientations
and sexual orientation identities, and for some, sexual orientation identity (i.e., individual or
(emphasis added)).) SB 1028 leaves licensed counselors uncertain whether and at what point a
particular recommendation or utterance to a minor client will cost them money or even their
licenses. Similarly, enforcement officials cannot be certain at what point a counselor has crossed
the line. This does not satisfy the stringent test required for the threat to Plaintiff’s First
SB 1028, as shown above, the irreparable harm prong of the preliminary injunction standard is
satisfied as a matter of law: “The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976);
Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011); Newsom ex rel. Newsom v.
Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003). Indeed, First Amendment violations
are presumed to impose irreparable injury. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th
Cir. 2012); see also 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal
33
Practice & Procedure §2948.1 (2d ed. 1995) (“When an alleged constitutional right is involved,
most courts hold that no further showing of irreparable injury is necessary.” (emphasis added)).
To be sure, Plaintiff and his clients are suffering and will continue to suffer immediate and
irreparable injury absent injunctive relief. Plaintiff is being silenced in his ability to speak to his
willing, minor clients with counseling to assist them in reducing or eliminating distress arising
from unwanted sexual or gender identity conflicts, and his clients are likewise suffering irreparable
injury from the denial of their right to hear such counseling. (V. Compl. ¶¶ 127–143.) If Plaintiff
violates SB 1028’s prohibitions he is subject to fines and other disciplinary action. If he follows
SB 1028’s requirements he will violate legal and ethical standards protecting client self-
determination. The imposition of punishment for speech desired by clients and permitted by
harm.
A preliminary injunction will protect the very rights the Supreme Court has characterized
as “lying at the foundation of a free government of free men.” Schneider v. New Jersey, 308 U.S.
147, 151 (1939). As noted above, “even a temporary infringement of First Amendment rights
constitutes a serious and substantial injury.” Legend Night Club, 637 F.3d at 302; Newsom, 354
F.3d at 261. Conversely, Defendants are in no way harmed by issuance of a preliminary injunction
against enforcing a statute which is not supported by evidence of harm to be prevented and is likely
There can be no comparison between the irreparable loss of First Amendment freedoms
suffered by Plaintiff and his clients absent injunctive relief, and Defendants’ phantom interest in
enforcing an unconstitutional law. The balance of the equities tips decidedly in Plaintiff’s favor,
34
INJUNCTIVE RELIEF SERVES THE PUBLIC INTEREST.
The final prerequisite for preliminary relief is that it serve the public interest. Newsom, 354
F.3d at 261.The protection of First Amendment rights is of the highest public interest. See Elrod,
427 U.S. at 373. This protection is ipso facto in the interest of the general public because “First
Amendment rights are not private rights . . . so much as they are rights of the general public. . . .
‘for the benefit of all of us.’” Machesky v. Bizzell, 414 F.2d 283, 289 (5th Cir. 1969) (quoting Time,
Inc. v. Hill, 385 U.S. 374, 389 (1967)). Indeed, “[i]njunctions protecting First Amendment
freedoms are always in the public interest,” ACLU of Ill. v. Alvarez, 679 F.3d 583, 590 (7th Cir.
2012) (emphasis added); Texans for Free Enter. v. Texas Ethics Comm’n, 732 F.3d 535, 539 (5th
Cir. 2013).
CONCLUSION
For all of the foregoing reasons, Plaintiff’s Motion for Preliminary Injunction should be
Respectfully submitted,
35