Background
Plaintiffs Wyatt Bury and Pamela Eisenreich, licensed counselors, challenged ordinances in Kansas City and Jackson County that prohibited conversion therapy with minors and restricted public accommodations discrimination based on sexual orientation or gender identity. The district court had dismissed most of the plaintiffs’ claims and denied a broad preliminary injunction, relying on a distinction between regulating speech and regulating professional conduct. The Supreme Court later decided Chiles versus Salazar, rejecting a similar speech-conduct distinction for a Colorado statute regulating conversion therapy.
The court’s reasoning
The Eighth Circuit found it appropriate to reverse the district court’s dismissal of the free speech and vagueness claims. The court noted that the Supreme Court in Chiles versus Salazar rejected the argument that the statute regulated professional conduct rather than speech, observing that the statute regulated speech as speech. Because the district court’s order relied on the same speech-conduct distinction rejected in Chiles versus Salazar, the appellate court remanded the case for the district court to consider the complaint and request for a preliminary injunction in light of this intervening authority.
What it means going forward
The case returns to the district court, which must now evaluate the plaintiffs’ constitutional challenges and request for a preliminary injunction without relying on the speech-conduct distinction previously used to dismiss the claims.