Columbia’s conversion therapy ban likely won’t hold up in court, SC attorney general says

A court would likely find Columbia’s conversion therapy ban unconstitutional, South Carolina’s Attorney General Alan Wilson concluded in an opinion published Wednesday. Columbia City Council in 2021 narrowly passed an ordinance banning licensed professionals in the city from offering the practice to minors with a $500 fine for violators.

LGBTQ-rights activists in Columbia had asked for the ordinance, which they say protects LGBTQ youth from harm. Twenty states ban the practice. Columbia is South Carolina’s first city to outlaw it on the local level.

The Attorney General issued the opinion at the request of State Sen. Josh Kimbrell, R-Spartanburg County, who has been a vocal opponent of Columbia’s ordinance.

Wilson’s opinion acknowledged that different courts across the U.S. have come to competing conclusions on whether banning conversion therapy violates the First Amendment.

Conversion therapy, which seeks to change a person’s sexual orientation, is widely opposed by national physician’s groups and mental health associations. The American Medical Association officially refers to it as a “so-called” therapy, and stresses the practice has been associated with electric shock and food deprivation, among other techniques.

Wilson believes that South Carolina courts would strike down Columbia’s ordinance.

“People have intense moral, religious and spiritual views about these matters — on all sides,” Wilson wrote, quoting from an Eleventh Circuit Court decision deeming a similar ordinance in Boca Raton, Florida unconstitutional. “And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender,” he wrote.

Wilson adds Columbia’s ordinance could be construed to overstep its municipal bounds by regulating an industry that state government is meant to oversee.

Columbia’s ordinance is “presumed constitutional,” however, until a court rules otherwise, Wilson also notes.

FIRST AMENDMENT VIOLATION?

This session, Kimbrell is sponsoring legislation that would preempt the ordinance and similar local policies as well as allow medical professionals to withhold treatment based on personal beliefs. Kimbrell requested the Attorney General opinion in May, after Columbia’s ordinance had received unanimous approval on a first reading. It later passed on a 4-3 vote.

Kimbrell argued then that the ordinance penalizes counselors “if they do not affirm LGBTQ preferences, even if doing so would violate the therapist’s deeply held religious beliefs,” and thus violating their First Amendment rights.

Those who fought for the ordinance in Columbia say they stand by its legality and its mission.

“It is psychologically damaging pseudoscience that tries to ingrain in queer young people that they are shameful sinners who deserve to be rejected, erased and fundamentally changed,” said Dylan Gunnels, an LGBTQ-rights advocate in Columbia who pushed for the city’s ban after undergoing the practice as a teenager. “No young person should be subjected to what I went through, and I was relieved when Columbia banned this heinous practice.”

Columbia at-large councilman Howard Duvall, who has worked with LGBTQ-rights advocates in the city on a number of initiatives, said the city wants to do everything it can to protect LGBTQ youth.

“Our Council did the right thing by passing this ordinance, and I stand by it,” he said in a statement shared by the group SC United for Justice and Equality.

“No minor should be subjected to the abuse of ‘conversion therapy.’” Other groups have fought to see the ordinance overturned and support Kimbrell’s efforts.

“South Carolina could be one step closer to protecting a biblical worldview in Christian counseling — a major step against local government overreach,” the faith-based Palmetto Family Alliance wrote in a statement Wednesday.

The state Senate Medical Affairs Committee is expected to hear S.811, Kimbrell’s bill to overturn the ordinance, on Thursday.