On Monday, Arizona House Speaker Ben Toma sent a letter to Governor Hobbs calling on her to immediately rescind her recent Executive Order involving so-called “conversion therapy.” Toma called the Executive Order “unintelligible, unenforceable, and very likely unconstitutional.”
In late June, Hobbs signed two more controversial Executive Orders targeting the LGBTQ population by requiring the state employee health care plan to cover gender-affirming surgery and barring conversion therapy treatment for minors.
Toma argued in his letter to Hobbs that “although other states have enacted laws banning conversion therapy, those states have made that policy choice through the legislative process. Your Executive Order is an improper exercise of your authority.”
The Center for Arizona Policy, a conservative advocacy organization, agreed with Toma and called Hobbs out for her “power grab” in a statement:
“Governor Katie Hobbs should have run for the Arizona legislature again if she wanted to make law. Arizona lawmakers who represent Arizonans from throughout the state are tasked with passing new laws, not the Governor.
This power grab is not only partisan, but it is unwise and dangerous. What she calls “conversion therapy” amounts to basic counseling for those struggling with their gender. It is likely unconstitutional to tell therapists what they can say and citizens what therapy they can seek. It is also unconscionable to block coverage for counseling and health services sought by state employees and their dependents….”
In 2017, the Pima County Board of Supervisors ignored the advice of counsel and voted to ban conversion therapy. They were quickly admonished by constitutional scholars and various attorneys for the mostly symbolic resolution in support of an ordinance banning the practice.
At the time, an attorney for the Center for Arizona Policy (CAP), Michael Clark, sent a letter to the supervisors advising them of the risks associated with the resolution. Clark argued, “The Supreme Court has long held that it is impermissible for the government to regulate speech based upon its content or viewpoint.”
While “conversion therapy” is seldom practiced in the U.S., progressives have attempted to portray Christian-based counseling as a dangerous form of it.
In his 2017 letter, Clark offered as an example the case of “a 17-year-old female who experienced same-sex attractions but who also believed that acting upon those attractions would be inconsistent with her sincerely-held religious beliefs. If that female believed that, rather than acting on her attractions, she should instead choose to live a chaste life, she would be unable to obtain professional counseling to assist her with her lifestyle choice… because the proposed ordinance prohibits counseling that would assist her with reducing sexual attractions in order to enable her to live a chaste life.”
Clark noted that a ban on any professional counseling speech that seeks “to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward persons of the same sex while permitting counseling speech that affirms and encourages an individual’s sexual orientation or gender identity “unconstitutionally regulates counseling speech based on its content and viewpoint.
Andrew L. Flagg, Chief Civil Deputy County Attorney advised supervisors in 2017 that “Arizona has a strict statute, A.R.S. § 41-1493.01, that applies the highest level of scrutiny to laws that “substantially burden” religious exercise. A burden on religious exercise is not “substantial” unless it puts “substantial pressure on an adherent to modify his behavior to violate his beliefs.”
Toma letter to Hobbs:
Dear Governor Hobbs,
Your recent Executive Order 2023-13, purporting to “protect young people from conversion therapy,” is very likely unconstitutional. I urge you to rescind it.
Although other states have enacted laws banning conversion therapy, those states have made that policy choice through the legislative process. Your Executive Order is an improper exercise of your authority. See Litchfield Elem. School Dist. No. 79 v. Babbitt, 125 Ariz. 215 (App. 1980) (the Governor “is charged with the duty of faithfully executing the laws” under Ariz. Const., art. 5, § 4, but “this is not a source from which the power to make legislative decisions can be created”).
Moreover, your definition of “conversion therapy” (encompassing any practice or treatment) is unprecedented, vague, unintelligible, and unenforceable. In other words, the Executive Order’s ban on “conversion therapy” is a ban defined by your administration alone – bearing no resemblance to the laws of other states. State agencies directed to implement your Executive Order cannot even begin to understand what constitutes a banned “conversion therapy.” Your Executive Order then exempts “gender-affirming care” but does not define this term (and none exists under Arizona law).
The far-reaching mandates of your Executive Order also threaten to violate the Parents’ Bill of Rights, A.R.S. § 1-602, and Arizonans’ constitutional rights, including patients’ right to freely speak with their therapists, see Ariz. Const. art. 2, § 6. As one federal court has explained, “the First Amendment does not allow [the government] to determine how their neighbors may be counseled about matters of sexual orientation or gender.” Otto v. City of Boca Raton, 981 F.3d 854, 871 (11th Cir. 2020) (finding conversion therapy ban unconstitutional under the First Amendment).
Accordingly, to prevent violations of Arizonans’ constitutional and statutory rights, costly and unnecessary litigation, and inevitable confusion among Arizona’s state agencies, you should immediately rescind Executive Order 2023-13.