For 6 years, the City of Appleton has had an unconstitutional ordinance in its Municipal Code. Concerns about this ordinance’s scope and constitutionality were raised at the time of its adoption, but the Common Council went ahead and approved it anyway by a vote of 14-1. The unconstitutionality of that ordinance has now been confirmed by an 8-1 decision of the Supreme Court of the United States of America.
I refer to Section 7-300 of Appleton’s Municipal Code, the section which banned, among other things, counselors and therapists, when working with patients under the age of 18, from providing talk therapy that the city defined as being “conversion therapy”.
The ordinance in question’s definition of “conversion therapy” is almost word-for-word the same as that of a Colorado state statute that has just been determined to be unconstitutional by the Supreme Court in its ruling in the Chiles vs. Salazar case. Both the Appleton ordinance and the Colorado law define conversion therapy as a practice or treatment intended to change a person’s “sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same [sex/gender].”
Both Appleton’s ordinance and Colorado’s law also explicitly define conversion therapy to not include therapy that provides (a) “assistance to a person undergoing gender transition“ or (b) “acceptance, support, and understanding” or facilitates an individual’s “coping, social support, and identity exploration and development, including sexual-orientation neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such counseling does not seek to change [an individual’s] sexual orientation or gender identity.”
The Supreme Court determined that the law in question is unconstitutional because it regulates speech based on viewpoint. It notes that, “The fact that the State’s viewpoint regulation falls only on licensed health care professionals does not change the equation. The First Amendment protects the right of all to speak their minds, and NIFLA expressly rejected the notion that professional speech is subject to ‘diminished constitutional protection.’” The court goes on to warn, “History is littered with examples of governments that have sought to manipulate professional speech ‘to increase state power,’ ‘suppress minorities,’ and censor ‘unpopular ideas.’”
Justice Gorsuch, penning the opinion for the majority, points out one of the great dangers of the government regulating professional speech, writing, “Not long ago, many medical experts and organizations, including the American Psychiatric Association, considered homosexuality a mental disorder. […] On the view Colorado and the dissent advance, a law adopted during that era prohibiting counselors from engaging in the ‘substandard care’ of affirming their clients’ homosexuality would have been subject to only rational-basis or intermediate-scrutiny review—and likely upheld. […] Today, tomorrow, and forever, too, any professional speech that deviates from ‘current beliefs about the safety and efficacy of various medical treatments’ could be silenced with relative ease.”
Justice Kagan in her concurring opinion, points out how serious a matter it is when the government tries to ban certain viewpoints, “If the First Amendment prohibits anything, it is the ‘official suppression of ideas.’ […] Because viewpoint-based laws always raise that specter, they are the most suspect of all speech regulations. So much so that this Court has refused to permit viewpoint discrimination even within unprotected categories of speech, like fighting words or obscenity.”
I reached out to City Attorney Chris Behrens and asked what the status of this ordinance was in light of the Supreme Court’s ruling in Chiles vs. Salazar. He indicated that, going forward, the Appleton Health Department will not accept written allegations against a provider and forward those on to the Wisconsin Department of Safety and Professional Services as the ordinance requires but will instead provide individuals submitting complaints with information on how to contact DSPS directly with their concerns.
He indicated that he and Health Officer Charles Sepers also “discussed bringing this ordinance back to the Board of Health at a future meeting with a recommendation to repeal the ordinance given the Chiles decision.”
Additionally, he noted that since the ordinance’s adoption Dr. Sepers was “not aware of any written complaints being submitted to his department pursuant to 7-300.”
[While in some respects it is good that no licensed professional faced repercussions from the City of Appleton under this ordinance since its adoption, the very lack of complaints and city action suggests that this ordinance was not enacted in response to any sort of actual issue on the ground that the Common Council was wrestling with at the time. The extreme similarity in the ordinance’s language to the language of the Colorado law would also suggest it did not spring up as an organic response to an organic issue in Appleton but rather came from a shared template.
This inorganic and unconstitutional ordinance has sat on Appleton’s books for 6 years, and, even if seemingly unused, it was fulfilling a purpose and making a statement. The statement it has been making for the last 6 years is: “We, the City of Appleton, have authority over your words and your viewpoints. Give careful consideration to your thoughts because if you express thoughts we don’t like, we will try to cause you harm.”
There are 6 alderpersons who were serving on the Common Council in 2020 and who voted in favor of this ordinance who are still members of the Common Council today. They are Vered Meltzer (District 2), Brad Firkus (District 3), Katie Van Zeeland (District 5), Denise Fenton (District 6), Alex Schultz (District 9), and Chris Croatt (District 14). Every single Council member takes an oath to support the Constitution of the United States. In the case of this ordinance, that oath was not followed well, and one hopes that the current Common Council will quickly rectify this issue and that the 6 alderpersons who voted in favor of this ordinance back in 2020 will not only publicly apologize for having overstepped their authority but will also be the ones who most vigorously lead the charge to rectify that mistake and make it clear that, going forward, the City of Appleton will respect and uphold the constitutional rights of the people who reside and conduct business in this city.
It is only good and right that the Council (and those 6 alderpersons in particular) should do that because, as the Supreme Court noted in its ruling, “The First Amendment stands as a bulwark against any effort to prescribe an orthodoxy of views, reflecting a belief that each American enjoys an inalienable right to speak his mind and a faith in the free marketplace of ideas as the best means for finding truth. Laws like Colorado’s, which suppress speech based on viewpoint, represent an egregious assault on both commitments.” The last thing Appleton should want to be known for is for being the city that engaged in an egregious assault on the fundamental right of Americans to speak their minds and for having suppressed the ability of people within its borders to seek truth.]
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