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After the Norman City Council, the LGBTQ community and their advocates celebrated a ban on conversion therapy passed this week, questions remain about how to enforce the ban and whether the city has stepped beyond its purview.

The Transcript obtained more information to explore how courts have viewed bans in other states and the enforcement process the city will follow.

As defined by the citys ordinance, conversion therapy is an attempt by a licensed provider to alter a persons sexual orientation or gender identity.

The ordinance does not ban mental health counseling to affirm and provide coping mechanisms to accept ones gender identity or sexual orientation, nor is it a ban on therapies designed to prevent unlawful conduct or unsafe sexual practices.

Conversion therapy is often undefined and unspecific, according to the International Rehabilitation Council for Torture Victims (IRCT). However, the council lists corrective violence and electric shocks as techniques in conversion therapy.

Electroconvulsive therapy, aversive treatments using electric shocks or vomit-inducing drugs, exorcism or ritual cleansing (often involving violence while reciting religious verse), force-feeding and food deprivation, forced nudity and forced isolation and confinement are some of the more extreme examples of conversion therapy, IRCT found.

The organization maintains that even talk or psychotherapy can become a repeatedly traumatic event, the website reads. Conversion therapy is practiced in at least 69 countries, according to IRTC.

Churches are exempt from Normans ban due to freedom of religion provisions in the First Amendment, the citys legal staff previously told the council. The city could find no other bans across the nation that included religious organizations.

Conversion therapy or reparative therapy has been promoted in religious right groups like the Family Research Council and The American Family Association, fundamentalist church associations and Exodus, International.

Is the citys conversion ban enforceable? It was a question raised during the June 29 council meeting, and City Attorney Kathryn Walker described the process to The Transcript.

The first avenue of enforcement is pursuing a criminal misdemeanor charge, but the process would have to rely heavily on witness testimony. The complaint would be filed in municipal court.

Because this would be a misdemeanor and would, by its very nature, likely not occur in the presence of an officer, the complaint would have to be a citizen-filed complaint, Walker said. In these situations, the person filing the complaint comes to the Police Department and fills out a docket for Municipal Court, which outlines what happened, when it happened, etc.

A prosecutor will determine if there is sufficient cause to charge the accused, she said.

Non-traffic charges in Municipal Court rely heavily on witness testimony, she said. We would not typically require recordings, financial statements, etc. to determine whether to file a charge. In the criminal context, the provider cannot be required to testify likely, the complaining witness would have to testify in order for the City to meet its burden of proof.

Testimony aside, other evidence can be introduced, but much of the case comes down to witness credibility, Walker said.

It depends on the type of case sometimes, there is photographic or video evidence, such as assault and battery cases, neighbor issues, etc., and often there are other witnesses, Walker said. In this type of case, there could be an audio recording or some other evidence related to the therapy, but if the witness is credible, other evidence may not be necessary to obtain a finding of guilty.

The other option for enforcement is through civil action.

This means the City would file a lawsuit and ask the Court to order the provider to stop engaging in the practice of conversion therapy, Walker said. Although the burden of proof standard is different in the civil context, the Court would require some kind of evidence, likely testimony, that the provider has engaged in the prohibited conduct, it has caused irreparable harm, etc.

Though courts have ruled on conversion therapy bans in other municipalities, the legal fate of Normans ordinance is still up in the air due to a lack of precedent in the 10th Circuit Court of Appeals.

Weve got the 9th Circuit Court of Appeals and other circuits that have upheld [conversion therapy] bans, because they looked at the therapy as professional conduct, not speech, Walker said. Then you have the 11th Circuit Court of Appeals say, Well no, we think this speech, and if its speech, then its protected by the First Amendment. So therefore, any ordinance impacting that speech or regulating that speech would be subject to strict scrutiny, which is the highest level of scrutiny the court gives a case, and its very hard to survive strict scrutiny.

The 9th Circuit, which encompasses California, ruled that the law banning conversion therapy was constitutional despite challenges.

The law much like Normans ordinance banned the practice of conversion therapy on minors to protect their physical and psychological well-being, and only prevented regulated licensed mental health providers not churches or religious institutions from practicing conversion therapy.

The evidence falls far short of demonstrating that the primary intended effect of [the conversion therapy ban] was to inhibit religion, Circuit Judge Susan Graber wrote in the opinion.

The Supreme Court in 2017 declined to hear the challenge to the 9th Circuits ruling, allowing the ban to remain in place. The courts decision set a precedent that if a challenge solely to a ban itself arises, the ban will more than likely remain intact.

In a 2019 decision, the 4th Circuit, which is more conservative than Oklahomas 10th Circuit, ruled that a Maryland law banning conversion therapy on minors does not impede on the First Amendments protection of freedom of speech.

According to the judge, prohibiting the practice of conversion therapy on minors doesnt prevent therapists from expressing their personal views about conversion therapy to their minor clients it just prevents them from practicing it.

Most recently, in November 2020, the 11th Circuit which encompasses Florida struck down Boca Raton and Palm Beach Countys ordinance that banned conversion therapy. But unlike the 9th Circuits ruling, the 11th Circuit ruling looked at conversion therapy as speech, and ruled a ban is a violation of the First Amendment.

Circuit Judge Britt Grant, a Donald Trump-appointed judge, said while enjoining the laws allows speech that many find concerning even dangerous, the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.

When it comes to Normans conversion therapy ban, the absence of precedent in Oklahomas 10th Circuit represents the biggest unknown.

What we dont know is how the 10th Circuit would look at this ban, Walker said. If they look at (conversion therapy) as conduct, the ban would stand, I believe. But, if they look at it as speech, we may have some issues, because it would be a First Amendment issue.

So thats really where we are, and the 10th Circuit just hasnt answered that question, so this could be challenged. It can be challenged on its face, or it can be challenged as an applied setting so if we were to file charges against someone, that could be a challenge based on how we apply the ordinance.

A challenge to the ordinance on its face is highly unlikely, Walker said, but a challenge once the ordinance is being enforced is more likely.

I dont know if someone will want to spend the time, money and effort to overturn it on its face and to challenge it on its face they may, but I havent heard a specific threat of that, she said. I do think in an applied situation its probably more likely. But were ready in any event. Were going to be careful how we apply it, so well see how it turns out.

Alex Gerzewski, spokesman for the Oklahoma Attorney Generals Office said the question of whether a city acts outside its purview under these circumstances has not been addressed by an AG opinion.

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How the city will enforce, uphold conversion therapy ban - Norman Transcript