# Doyle v. Hogan

> District Court, D. Maryland · August 1, 2019

URL: https://www.frixlaw.com/law-library/cases/10202245

## Case

- **Court:** District Court, D. Maryland
- **Decided:** August 1, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10202245

## How later opinions describe it (automated extraction)

- stating that “it is appropriate to incorporate by reference an argument made in a motion to dismiss an original complaint despite the subsequent amendment of the complaint.”
- noting challenge may be either facial, i.e., “a complaint fails to allege facts upon which subject matter jurisdiction can be based[,]” or factual, i.e., “the jurisdictional allegations of the complaint [are] not true”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CHRISTOPHER DOYLE, LPC, LCPC, :
Individually and on behalf of
his clients :

v. : Civil Action No. DKC 19-0190

:
LAWRENCE JOSEPH HOGAN, JR.,
et al. :

MEMORANDUM OPINION

Plaintiff Christopher Doyle (“Plaintiff”) initiated the
instant action against Defendants Lawrence J. Hogan, Jr. in his
official capacity as Governor of the State of Maryland and Brian
E. Frosh in his official capacity as the Attorney General of the
State of Maryland (collectively, “Defendants”) on January 18,
2019.
The complaint alleges that § 1-212.1 of the Health
Occupations Article of the Maryland Code violates Plaintiff’s:
(1) right to freedom of speech under the First Amendment (ECF
No. 1 ¶¶ 144-163); (2) clients’ First Amendment rights to receive
information (id. ¶¶ 164-172); (3) right to free exercise of
religion under the First Amendment (id. ¶¶ 173-189); (4) “right
to liberty of speech under Articles 10 and 40 of the Declaration
of Rights of the Constitution of Maryland” (id. ¶¶ 190-210); and
(5) “right to free exercise and enjoyment of religion under
Article 36 of the Declaration of Rights of the Constitution of
Maryland” (id. ¶¶ 211-227). Plaintiff seeks (1) “a preliminary
injunction enjoining Defendants and Defendants’ officers,
agents, servants, employees, and attorneys, and all other
persons who are in active concert or participation with them .
. . from enforcing [§ 1-212.1][;]” (2) “a permanent injunction

enjoining enforce[ement] of [§ 1-212.1;]” (3) “a declaratory
judgment declaring unconstitutional [§ 1-212.1] and Defendants’
actions in applying [§ 1-212.1] under the United States
Constitution and Constitution of Maryland[;]” (4) “nominal
damages for the violation of [his] constitutional rights[;]” (5)
“actual damages in an amount to be awarded at trial[;]” (6) a
declaration that “the rights and other legal relations with
subject matter here are in controversy so that such declaration
shall have the force and effect of final judgment[;]” (7) the
court’s continued jurisdiction after finding in Plaintiff’s
favor “for the purpose of enforcing th[e] [c]ourt’s order[;]”
and (8) “reasonable costs and expenses of this action, including

attorney’s fees, in accordance with 42 U.S.C. § 1988[.]” (ECF
No. 1, at 42-45). Presently pending are: (1) Plaintiff’s January
18, 2019 motion for preliminary injunction (ECF No. 2); (2)
Defendants’ March 8, 2019 motion to dismiss for failure to state
a claim (ECF No. 26); (3) a motion for leave to file an amicus
curiae brief in support of Defendants’ motion to dismiss and
opposition to Plaintiff’s motion for preliminary injunction (ECF
No. 28) filed by FreeState Justice, Inc. (“FreeState”) on March
15, 2019; (4) a motion for leave to file an amicus curiae brief
in support of Defendants’ opposition to Plaintiff’s motion for
preliminary injunction (ECF No. 31) filed by The Trevor Project
on March 15, 2019; (4) Plaintiff’s April 11, 2019 motion to

compel (ECF No. 44); and (5) Plaintiff’s May 16, 2019 motion for
leave to file surreply in opposition to Defendant’s motion to
dismiss (ECF No. 58).
A hearing is scheduled for August 5-6 and will focus on
some aspects of the motion to dismiss, and the motion for a
preliminary injunction. Some of the other pending motions,
preliminary issues, and some of the arguments raised in the
motion to dismiss will be resolved in this memorandum opinion,
without a hearing. For the following reasons, FreeState’s motion
for leave to file amicus curiae will be granted, The Trevor
Project’s motion for leave to file amicus curiae will be granted,
Plaintiff’s motion for leave to file surreply will be granted,

and Plaintiff’s motion to compel will be denied without
prejudice.
I. Background
Defendant Hogan signed Senate Bill (“Senate Bill or SB”)
1028 on May 15, 2018. The law was codified as § 1-212.1 of the
Health Occupations Article of the Maryland Code and took effect
on October 1, 2018. (ECF No. 1-1, at 1, 6). § 1-212.1(b)
prohibits mental health or child care practitioners from
engaging in conversion therapy, defined by § 1-212.1(a)(2)(i) as
“a practice or treatment . . . that seeks to change an
individual’s sexual orientation or gender identity[,]” with
minor clients. § 1-212.1(a)(1)(2)(ii) states that “‘conversion

therapy’ includes any effort to change the behavioral expression
of an individual’s sexual orientation, change gender expression,
or eliminate or reduce sexual or romantic attractions or feelings
toward individuals of the same gender.”
Under § 1-212.1, mental health and child care practitioners
may practice therapy with minors that “provides acceptance,
support, and understanding, or the facilitation of coping,
social support, and identity exploration and development,
including sexual orientation-neutral interventions to prevent or
address unlawful conduct or unsafe sexual practices.” However,
such therapy may not “seek to change sexual orientation or gender
identity.” MD. CODE, Conversion Therapy, § 1-

212.1(a)(1)(2)(iii). § 1-212.1(c) states that practitioners in
violation of the statute “shall be considered to have engaged in
unprofessional conduct and shall be subject to discipline by a
certain licensing or certifying board.”
§ 1-212.1(a)(3) defines “mental health or child care
practitioner[s]” as physicians, professional counselors or
therapists, psychologists, social workers or residential child
care program professionals licensed or certified in the State of
Maryland, and “[a]ny other practitioner licensed or certified
under [the Health Occupations Article of the Code of Maryland]
who is authorized to provide counseling by the practitioners
licensing or certifying board.” According to Defendants, § 1-

212.1 permits practitioners to (1) communicate with the public
about conversion therapy; (2) express their views about
conversion therapy to any person, including minor and adult
clients; (3) recommend conversion therapy to any person,
including minor and adult clients; (4) administer conversion
therapy to clients over the age of 18; and (5) refer minor
clients to unlicensed counselors and religious leaders for the
purposes of undergoing conversion therapy. (ECF No. 26-1, at
3).
To conclude that sexual orientation change efforts (“SOCE”)
threaten the physical and psychological well-being of minors,
the Maryland legislature relied on research, conclusions and

statements by the American Psychological Association, American
Psychiatric Association, American Medical Association Council on
Scientific Affairs, National Association of Social Workers,
American Counseling Association Governing Council, American
School Counselor Association, American Psychoanalytic
Association, American Academy of Child and Adolescent
Psychiatry, American Association of Sexuality Educators,
Counselors, and Therapists, Pan American Health Organization,
American College of Physicians, and the Pediatrics journal. (ECF
No. 1-1, at 4). Much of the information that the legislature
relied on discusses the efficacy, or lack thereof, of conversion
therapy and explains that the practice may lead to depression or

even suicide. For example, the American Psychological
Association’s 2009 report on sexual orientation change efforts
defines SOCE as “methods that aim to change a same-sex sexual
orientation (e.g., behavioral techniques, psychoanalytic
techniques, medical approaches, religious and spiritual
approaches) to hetereosexual[,]” (ECF No. 1-2, at 20 n.5) and
concludes that:
sexual orientation change efforts can pose
critical health risks to lesbian, gay, and
bisexual people, including confusion,
depression, guilt, helplessness,
hopelessness, shame, social withdrawal,
suicidal ideations, substance abuse,
stress, disappointment, self-blame,
decreased self-esteem and authenticity to
others, increased self-hatred, hostility
and blame toward parents, feelings of anger
and betrayal, loss of friends and potential
romantic partners, problems in sexual and
emotional intimacy, sexual dysfunction,
high-risk sexual behaviors, a feeling of
being dehumanized and untrue to self, a loss
of faith, and a sense of having wasted time
and resources.

(ECF No. 1-1, at 1). Concerned about the negative effects
conversion therapy may have on children during and after
receiving the treatment, the “Maryland General Assembly passed,
and the Governor signed, SB 1028 to protect Maryland children
from harm[.]” (ECF No. 53, at 1).
Plaintiff is a “psychotherapist who is licensed to practice
mental health counseling in Maryland.” (ECF No. 1, at 5).
Plaintiff currently acts as a mental health therapist for Patrick

Henry College in Purcelville, VA, executive director for the
Institute for Healthy Families in the Washington, D.C. area (the
“Institute”), and clinical director and licensed counselor for
Northern Virginia Christian Counseling. (ECF Nos. 53-2, at 2,
p. 9 & 1, at 20). Plaintiff asserts that he “has devoted most
of his professional life to providing counseling to young people
and their parents who are seeking help for unwanted same-sex
attractions[.]” (ECF No. 1, at 21).
II. Motions for Leave to File Briefs as Amici Curiae
FreeState is a legal advocacy organization that seeks to
improve the lives of low-income lesbian, gay, bisexual,
transgender, and queer (“LGBTQ”) people in Maryland. (ECF No.

28, at 1). FreeState contends that it “has demonstrated a
special interest in the outcome of the suit” and “represents
large constituencies of individuals which have a vested
interest” because it “played an integral role in advocating for
the passage and subsequent enactment” of § 1-212.1. (Id., at 2)
(internal quotations omitted). Similarly, The Trevor Project
states that it is the nation’s largest LGBTQ youth crisis
intervention and suicide prevention organization. Some of the
individuals The Trevor Project serves were treated with
conversion therapy or belong to families interested in
compelling them to undergo conversion therapy. (ECF No. 31, at
2). The Trevor Project contends that it “has a special interest

in this litigation and can offer . . . an additional, unique
perspective on the relevant facts and law[] based on what it has
learned firsthand from the LGBTQ youth it serves.” (ECF No. 31,
at 1). Both parties also point out that several other district
courts analyzing the constitutionality of similar laws that ban
conversion therapy have “liberally granted leave to file amicus
curiae briefs[.]” (ECF Nos. 28, at 2 & 31, at 5).
Plaintiff opposes the proposed amici curiae, arguing that
their proposed briefs are neither useful nor timely. (ECF No.
37, at 2). As for usefulness, Plaintiff disputes the relevance
of a study article appended to FreeState’s proposed brief and
argues that, based on a 2014 public statement by a FreeState’s

predecessor organization Equality Maryland, the organization
actually believes § 1-212.1 is unnecessary. (Id., at 3-5).
Plaintiff adds that The Trevor Project’s discussion about the
negative effects conversion therapy may have on parent-child
relationships is discredited by Defendants’ response to
Plaintiff’s request for admissions. As for timeliness,
Plaintiff states that the amici curiae “proffer information
months after the counseling ban” and believes acceptance of the
amicus briefs “will disrupt the current preliminary injunction
proceedings.” Finally, Plaintiff argues that the factual
material included in The Trevor Project’s proposed brief creates
an “ex post facto evidentiary record to bolster Maryland’s

counseling ban enactment.” (Id., at 8).
There is no Federal Rule of Civil Procedure that applies to
motions for leave to appear as amicus curiae in a federal
district court. District courts therefore have discretion
whether to grant or deny such leave and often look for guidance
to Rule 29 of the Federal Rules of Appellate Procedure, which
applies to amicus briefs at the federal appeals level. See,
e.g., Jin v. Ministry of State Sec., 557 F.Supp.2d 131, 136
(D.D.C. 2008); Tafas v. Dudas, 511 F.Supp.2d 652, 660 (E.D.Va.
2007); Bryant v. Better Bus. Bureau of Greater Md., Inc., 923
F.Supp. 720, 728 (D.Md. 1996); Washington Gas Light Co. v. Prince
George’s County Council, Civ. Action No. 08-cv–0967-DKC, 2012 WL

832756, at *3 (D.Md. Mar. 9, 2012). Rule 29 indicates that amici
should state “the reason why an amicus brief is desirable and
why the matters asserted are relevant to the disposition of the
case.” Fed.R.App.P. 29(b)(2). As noted by Judge Davis in
Bryant, “[t]he aid of amici curiae has been allowed at the trial
level where they provide helpful analysis of the law, they have
a special interest in the subject matter of the suit, or existing
counsel is in need of assistance.” Bryant, 923 F.Supp. at 728
(citing Waste Mgmt. of Pa., Inc. v. City of York, 162 F.R.D. 34,
36 (M.D.Pa. 1995)). “A motion for leave to file an amicus curiae
brief, however, should not be granted unless the court ‘deems
the proffered information timely and useful.’” Id. (quoting Yip

v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J. 1985), aff’d, 782 F.2d
1033 (3d Cir. 1986), and aff’d sub nom. Appeal of Yip, 782 F.2d
1033 (3d Cir. 1986)).
FreeState and The Trevor Project have each demonstrated a
special interest in the outcome of the suit. The Trevor
Project’s memorandum provides a separate, experiential
perspective of conversion therapy and the issues surrounding it
and FreeState’s memorandum provides a helpful analysis of § 1-
212.1 as a reasonable regulation of a particular mental health
treatment. Additionally, Plaintiff’s arguments in opposition to
the proposed amici curiae are without merit. Plaintiff’s
argument that FreeState actually agrees with Plaintiff’s

position on § 1-212.1 is speculative and, therefore,
unpersuasive. To the extent that The Trevor Project’s brief is
undermined by Defendants’ admissions, a single discrepancy fails
to frustrate The Trevor Project’s proposed amicus brief in its
entirety. Furthermore, both proposed amici filed their briefs
shortly after Defendants filed their motion to dismiss and
opposition to Plaintiff’s motion for preliminary injunction,
providing ample time for their review and consideration. Thus,
Plaintiff’s timeliness objections are similarly unconvincing.
The proposed amicus briefs also comply with the requirements of
United States District Court for the District of Maryland
Standing Order 2018-07. Accordingly, the motions for leave to

file brief as amicus curiae will be granted and the amicus briefs
will be considered.
III. Motion to Compel
Plaintiff argues that, “when [he] attempted to take
Defendants’ Rule 30(b)(6) deposition on March 28, 2019,
Defendants either refused to answer dozens of questions on the
basis of ‘legislative privilege,’ or their designated witness
was unprepared and could not answer any of numerous specific
questions as to how Defendants interpret, apply or enforce [§ 1-
212.1].” (ECF No. 38, at 1). Thus, under Fed.R.Civ.P. 37(a)(1),
Plaintiff requests “an order compelling Defendants to provide a
Rule 30(b)(6) deposition witness properly prepared and able to

answer [his] questions concerning Defendants’ positions,
interpretations, understanding, application, and enforcement of
[§ 1-212.1].” (ECF No. 44, at 1). Plaintiff also requests “an
order compelling Defendants to produce a properly prepared Rule
30(b)(6) designee to answer Plaintiffs’ deposition questions
concerning Defendants’ consideration of less speech-restrictive
alternatives to [§ 1-212.1].” (Id.).
In response, Defendants explain that, after receiving
Plaintiff’s notice of deposition, they arranged a designee to
attend the deposition and fully answer Plaintiff’s questions.
(ECF No. 52, at 1-2). Defendants argue that the designee spent
ample time preparing for the deposition and answered Plaintiff’s

questions “on allegations of harm related to conversion therapy,
possible amendments to the bill that were considered and adopted
by the legislature, testimony presented at the committee
hearings on the bill, and the public conclusions made by the
legislature.” (Id., at 4-10). Finally, Defendants assert that
the designee was entitled to assert legislative privilege when
Plaintiff’s “deposition questions inquired into legislative
intent[.]” (Id., at 12).
Rule 30(b)(6) provides that persons designated to represent
an organization “must testify as to matters known or reasonably
available to the organization.” The rule “requires a good faith
effort . . . to find out the relevant facts—to collect

information, review documents and interview employees with
personal knowledge[.]” Wilson v. Lakner, 228 F.R.D. 524, 528
(D.Md. 2005). “As a corollary, depending on the nature and
extent of the obfuscation, the testimony given by [a]
nonresponsive deponent (e.g., ‘I don’t know’) may be deemed
binding on the corporation so as to prohibit it from offering
contrary evidence at trial.” Dorsey v. TGT Consulting, LLC, 888
F.Supp.2d 670, 685 (D.Md. 2012).
Here, the arguments advanced in support of Plaintiff’s
request are unpersuasive. Defendants provided a designee, the
Director of Health Occupations Boards and Commissions, with

knowledge about § 1-212.1. In preparation for the deposition,
the designee spent about 7 hours reviewing documents and speaking
with lawyers in the Maryland Attorney General’s office. (ECF
No. 45-1, at 23-24). Finally, Plaintiff’s frustration with the
designee’s invocation of legislative privilege here does not
demonstrate noncompliance with Rule 30(b)(6). The designee’s
testimony indicates that she made “good faith efforts to prepare”
and “rendered substantial testimony concerning the subject area
of [her] designation[.]” Wilson, 228 F.R.D. at 530 (internal
quotations removed). Thus, Plaintiff’s arguments do not
indicate that additional designees are necessary at this time.
Accordingly, Plaintiff’s motion to compel will be denied.

IV. Motion for Leave to File Surreply
Plaintiff argues that his proposed surreply to Defendants’
motion to dismiss must be accepted because he must be provided
with and have an opportunity to address the discovery evidence
Defendants rely on in their reply. (ECF No. 58, at 1). According
to Plaintiff, Defendants’ reply “argue[s], for the first time,
that discovery evidence supports dismissal of Plaintiff’s claims
for lack of standing” and relies on “passages of Plaintiff’s
deposition testimony that w[ere] not available when Defendants’
Motion to Dismiss was filed.” (Id.) Thus, Plaintiff’s surreply
requests permission “to argue from discovery evidence, including
all of [his] deposition testimony[.]” (Id. (emphasis omitted)).

Under Local Rule 105.2(a), “[u]nless otherwise ordered by
the Court, surreply memoranda are not permitted to be filed.” A
surreply may be permitted “when the moving party would be unable
to contest matters presented to the court for the first time in
the opposing party’s reply.” Khoury v. Meserve, 268 F.Supp.2d
600, 605 (D.Md. 2003) (citation omitted). By contrast, “[a]
motion for leave to file a surreply may be denied when the matter
addressed in the reply is not new.” Marshall v. Capital View
Mut. Homes, No. 12–cv-3109-RWT, 2013 WL 3353752, at *3 (D.Md.
July 2, 2013) (citation omitted).
By way of background, Defendants’ motion to dismiss argues
that Plaintiff lacks standing. Specifically, Defendants state

that Plaintiff does not allege an injury-in-fact, or “‘[]
intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by statute’ and
that ‘there exists a credible threat of prosecution
thereunder.’” (ECF No. 26-1, at 7) (quoting Davison v. Randall,
912 F.3d 666, 678 (4th Cir. 2019)). Plaintiff’s opposition to
Defendants’ motion to dismiss argues that Plaintiff has standing
because, due to § 1-212.1, he may have to halt counseling with
five Maryland minor clients he is treating for “unwanted same-
sex attractions and/or gender identity conflicts.” (ECF No. 47,
at 3) (internal quotation omitted). Defendants’ reply repeats
and elaborates on their original standing argument, adding that

Plaintiff’s deposition and other discovery documents further
demonstrate Plaintiff’s lack of standing. (ECF No. 53, at 1-
5). Attached to Defendants’ reply are excerpts of Plaintiff’s
deposition, Plaintiff’s answers to interrogatories, and copies
of informed consent forms used by Plaintiff at the Institute for
Healthy Living. (ECF Nos. 53-2; 53-3; 53-4; 53-5; 53-6).
Although the standing argument in Defendants’ reply is not
novel, Defendants do augment their argument with new evidence by
relying on Plaintiff’s discovery responses. As a result,
Plaintiff’s deposition and the standing arguments in Plaintiff’s
proposed surreply that advance new conclusions based on the
deposition will be considered in determining whether Plaintiff

has standing and the motion for leave to file surreply will be
granted.
V. Motion to Dismiss
A. Defendants’ Incorporation by Reference
Defendants filed an opposition in response to Plaintiff’s
motion for preliminary injunction on March 8, 2019. (ECF No.
25). In their motion to dismiss, Defendants rely on and
incorporate by reference some of the arguments they advanced in
their opposition to Plaintiff’s motion for preliminary
injunction, which assert that Plaintiff “has not state[d] a claim
for violation of his free speech rights as a matter of law.”
(ECF No. 26-1, at 2 n.1). As a preliminary matter, Plaintiff

disputes Defendants’ incorporation by reference. (ECF No. 47,
at 10-11). Plaintiff’s response to Defendants’ motion to dismiss
and motion for leave to file surreply conclude that Defendants’
incorporation indicates waiver of their defense because
Defendants “only perfunctorily and cursorily referenced their
defense of failure to state a claim as to [Plaintiff]’s [f]ree
[s]peech claim[.]” (Id.; see also ECF No. 58, at 11).
Defendants’ reply argues instead that Federal Rule of Civil
Procedure 10(c) allows them to incorporate by reference their
arguments that Plaintiff cannot establish a violation of his
free speech rights. (ECF No. 53, at 9).
Rule 10(c) provides that “[a] statement in a pleading may

be adopted by reference elsewhere in the same pleading or in any
other pleading or motion.” Although Rule 10 instructs the form
of pleadings, “[a] few federal courts have allowed defendants to
incorporate by reference to prior motions made in the action.”
5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc.
Civ. § 1326 (4th ed. 2019). This court and other federal district
courts have allowed incorporation by reference under similar
circumstances. See, e.g., NVR, Inc. v. Harry A. Poole, Sr.
Contractor, Inc., No. 14-cv-241-ELH, 2015 WL 1137739, at *2 n.5
(D.Md. Mar. 13, 2015) (considering arguments incorporated from
defendant’s previous motion to dismiss into defendant’s newly
filed reply to plaintiff’s response to defendant’s motion to

dismiss or, in the alternative, motion for more definite
statement); Levy v. Wexford Health Sources, Inc., No. 14-cv-
3678-TDC, 2016 WL 865364, at *6 (D.Md. Mar. 7, 2016) (permitting
parties to “incorporate by reference arguments made in their
original briefs” if plaintiff was required to re-file her motion
for partial summary judgment); Lowden v. William M. Mercer, Inc.,
903 F.Supp. 212, 216 (D.Mass. 1995) (stating that “it is
appropriate to incorporate by reference an argument made in a
motion to dismiss an original complaint despite the subsequent
amendment of the complaint.”). Because Plaintiff’s arguments in
favor of prohibiting incorporation are without merit, the free
speech arguments advanced in Defendants’ opposition to

Plaintiff’s motion for preliminary injunction will be evaluated
as part and parcel of Defendants’ motion to dismiss.
B. Standing
The issue of standing may be challenged on a motion to
dismiss for lack of subject matter jurisdiction under
Fed.R.Civ.P. 12(b)(1). “The plaintiff has the burden of proving
that subject matter jurisdiction exists.” Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). When deciding Rule
12(b)(1) motion, the court “may consider evidence outside the
pleadings” to help determine whether it has jurisdiction over
the case before it. Richmond, Fredericksburg & Potomac R.R. Co.
v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also

Evans, 166 F.3d at 647. The court should grant a Rule 12(b)(1)
motion “only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a matter
of law.” Richmond, 945 F.2d at 768 (citing Trentacosta v.
Frontier P. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987)).
Any plaintiff seeking to invoke the jurisdiction of a
federal court must establish standing. See, e.g., Allen v.
Wright, 468 U.S. 737, 750—51 (1984); S. Walk at Broadlands
Homeowner’s Ass’n Inc. v. Openband at Broadlands, LLC, 713 F.3d
175, 185 (4th Cir. 2013). The doctrine of standing consists of
two distinct “strands”: constitutional standing pursuant to
Article III and prudential standing. See Elk Grove Unified Sch.

Dist. v. Newdow, 542 U.S. 1, 11 (2004). The requirements for
constitutional standing reflect that Article III “confines the
federal courts to adjudicating actual ‘cases’ and
‘controversies.’” Allen, 468 U.S. at 750; see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1993) (“[S]tanding is
an essential and unchanging part of the case-or-controversy
requirement of Article III[.]”). “[A plaintiff] must, in other
words, show that the facts alleged present the court with a ‘case
or controversy’ in the constitutional sense and that [he] is a
proper plaintiff to raise the issues sought to be litigated.”
Linda R.S. v. Richard D., 410 U.S. 614, 616 (1973). To establish
Article III standing, a plaintiff must demonstrate that:

(1) [she] has suffered an “injury in fact”
that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly
traceable to the challenged action of the
defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will
be redressed by a favorable decision.

Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011) (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180-81 (2000)). A plaintiff can show injury-in-fact
in two ways:
First, there is a sufficiently imminent
injury in fact if plaintiff[] allege[s] “an
intention to engage in a course of conduct
arguably affected with a constitutional
interest, but proscribed by a statute, and
there exists a credible threat of
prosecution thereunder.” Babbitt v. Farm
Workers Nat’l Union, 442 U.S. 289, 298
(1979). “[I]t is not necessary that [a
plaintiff] first expose himself to actual
arrest or prosecution to be entitled to
challenge a statute that he claims deters
the exercise of his constitutional rights.”
Steffel v. Thompson, 415 U.S. 452, 459
(1974). Separately, there is an ongoing
injury in fact if plaintiff[] make[s] a
“sufficient showing of self-censorship,
which occurs when a claimant is chilled from
exercising his right to free expression.”
Cooksey v. Futrell, 721 F.3d 226, 235 (4th
Cir. 2013) (internal quotation marks
omitted).

Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018).
Defendants argue that Plaintiff cannot demonstrate injury-
in-fact because he has minimal connections to the state of
Maryland and “fails to allege that he performs or intends to
perform conversion therapy on minor clients in Maryland.” (ECF
No. 26-1, at 8). Although Defendants accurately point out that
Plaintiff’s complaint and motion for preliminary injunction do
“not specifically allege that he has any [client]s in Maryland”
(id.), Plaintiff’s answers to Defendants’ interrogatories
clarify that Plaintiff provides therapy to at least two minors
who reside in Maryland and formerly provided counseling to at
least three other minor clients who reside in Maryland (ECF No.
53-3, at 3).1 Additionally, Plaintiff testified that he has used
his Maryland therapeutic license (ECF No. 58-1, at 137) to treat
minor clients in Maryland over the past three years (id., at

1 Plaintiff’s interrogatory responses indicate that he uses
audio visual equipment to conduct much of the individual
counseling with these clients. However, Plaintiff is still
subject to Maryland law even if Plaintiff himself is not
physically located in Maryland when treating his Maryland
clients. See Craig P. Tanio et al., Maryland Telemedicine Task
Force: Final Report, Appendix R: Physician Licensing in Maryland
http://mhcc.maryland.gov/mhcc/pages/home/workgroups/documents/
tlmd/tlmd_ttf_rpt_102014.pdf (“Physicians and other
practitioners delivering telemedicine services must abide by
state licensure and scope of practice laws and requirements in
the state where the patient receives services.”).
133) and wishes to continue this practice (id.). Thus, Plaintiff
has demonstrated that he is a “mental health or child care
practitioner” actively treating clients in Maryland. §1-212.1.
Defendants next argue that, even if Plaintiff demonstrates
that he counsels clients in Maryland, he is not injured by § 1-

212.1 because he does not actually perform conversion therapy.
(ECF No. 53, at 2). Defendants rely on Plaintiff’s testimony
about his counseling practice, interrogatory answers and the
consent forms he uses when practicing at the Institute for
Healthy Families. (ECF Nos. 53-2; 53-3; 53-4; 53-5; 53-6). The
forms state that “[Plaintiff] and the Institute for Healthy
Families do[] not practice reparative therapy, reorientation
therapy, conversion therapy, or any type of sexual orientation
change effort (SOCE) therapy.” (ECF No. 53-6, at 2). The forms
further state that clients seeking treatment for sexual or gender
identity conflicts will receive “sexual/gender identity-
affirming therapy/coaching.” (Id.). Plaintiff’s deposition

testimony states, in relevant part, that he “define[s]
conversion therapy as a practice that is expressly trying to
change a client from gay to straight” and affirms that he does
not “engage in that particular kind of therapy.” (ECF No. 53-
2, at 5, p. 20). Plaintiff explained:
Essentially, the work that I do, I describe
it as sexual and gender identity affirming
therapy, and what I explain to clients is
that they’re in the driver’s seat, that I’m
not imposing a goal on their work. I have
a duty and a right to my clients to work
with what they want to work on, and clients
that may be open to sexual fluidity or
change, I’m open to that client’s goal.

(Id., at 6, p. 22). Finally, Defendants argue that Plaintiff
has not shown a credible threat of prosecution because “[h]e has
not been the subject of complaints to the Maryland Board of
Professional Counselors and Therapists . . . and his only
communications with the Board occurred in connection with
renewing his license.” (ECF No. 53, at 5).
Plaintiff responds that relevant portions of his complaint
demonstrate how he is injured by § 1-212.1, including:
As a psychotherapist licensed in Maryland
who engages in counseling to eliminate,
reduce, or resolve unwanted same-sex
attractions, behaviors, or identity,
Plaintiff is subject to potential
professional discipline under [§ 1-212.1].

[§ 1-212.1] prohibits Plaintiff from
engaging in counseling to eliminate, reduce,
or resolve unwanted same-sex attractions,
behaviors, or identity with his minor
clients, and requires Plaintiff to
discontinue ongoing counseling despite the
clients’ and their parents’ consent and
requests to continue, or face penalties
under the statute.

(ECF No. 47, at 3) (quoting ECF No. 1, at 26). According to
Plaintiff, “‘[a]ccepting as true all of the factual allegations
contained in the complaint and drawing all reasonable inferences
in favor of the plaintiff,’ . . . it is clear that [he] is
challenging [§ 1-212.1] because it bans his Maryland counseling
with Maryland clients.” (ECF No. 47, at 4) (quoting Hall v.
DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017), cert. denied,
138 S.Ct. 635 (2018) (internal marks omitted)). Plaintiff’s
surreply adds that, although Plaintiff testified that he does

not engage in conversion therapy, he also testified that he
currently treats minors with “gender identity confusion” who
“sometimes identify a goal that they have for themselves to
change or reduce or eliminate the unwanted attraction or
confusion.” (ECF No. 58-1, at 134-35). Where clients manifest
this intent, Plaintiff “wish[es] to provide them with the
counseling that they seek in order to accomplish their self-
chosen goals.” (Id., at 135-36). In conclusion, Plaintiff
stated that § 1-212.1 “determines that the work that [he] do[es]
is called conversion therapy[.]” (Id., at 136). Finally,
Plaintiff adds that his practice of conversion therapy qualifies
as prohibited behavior under § 1-212.1 even when the “change

goal” originates with his minor client. (ECF No. 58, at 6).
Although portions of Plaintiff’s testimony undermine
whether Plaintiff practices conversion therapy as defined by §
1-212.1, Plaintiff has demonstrated standing. Plaintiff
testified, after reading the definition of conversion therapy
provided in the senate bill that preceded § 1-212.1, that he
does not engage in conversion therapy. (ECF No. 58-1, at 70).
Plaintiff added that he “affirm[s] [the client’s] identity as
they state[.]” (Id., at 73). However, Plaintiff explained that
the treatments used to affirm a client’s identity include
“practices and techniques . . . that may have an effect on a
client’s sexual identity, gender identity, attractions, [and]

behaviors[.]” (Id., at 71-72). Plaintiff’s treatment methods
may simultaneously affirm a client’s identity while “help[ing]
them understand or resolve certain unwanted attractions and
behaviors” (id., at 74) because “a [client]’s sexual or gender
identity may not be the same as their attractions [and]
behaviors” (id., at 72). Plaintiff “has experienced a non-
speculative and objectively reasonable chilling effect” due to
§ 1-212.1 and, thus, has demonstrated standing. Cooksey v.
Futrell, 721 F.3d 226, 236 (4th Cir. 2013).
C. Third-Party Standing
Plaintiff’s complaint, filed “individually and on behalf of
his clients[,]” alleges that § 1-212.1 harms his clients because

the law “prevents [them] from receiving counseling to eliminate,
reduce, or resolve unwanted same-sex attractions, behaviors, or
identity and deprives them of the opportunity even to obtain
information about such counseling from [licensed mental health
professionals].” (ECF No. 1, at 33). Defendants argue that
Plaintiff does not have third-party standing because his minor
clients “are not hindered in their ability to represent their
own interests.” (ECF No. 26-1, at 9).
Generally, a plaintiff “must assert his own legal rights
and interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.” Warth v. Seldin, 422

U.S. 490, 499 (1975). However, “there may be circumstances where
it is necessary to grant a third party standing to assert the
rights of another.” Kowalski v. Tesmer, 543 U.S. 125, 129-30
(2004). The United States Court of Appeals for the Fourth
Circuit summarized the test for third-party standing in Freilich
v. Upper Chesapeake Health, Inc., 313 F.3d 205, 215 (4th Cir.
2002):
Even if a plaintiff satisfies Article III
standing requirements, “[f]ederal courts
must hesitate before resolving a
controversy, even one within their
constitutional power to resolve, on the
basis of the rights of third persons not
parties to the litigation.” Singleton v.
Wulff, 428 U.S. 106, 113 (1976). To
overcome the prudential limitation on third-
party standing, a plaintiff must
demonstrate: (1) an injury-in-fact; (2) a
close relationship between [him]self and the
person whose right []he seeks to assert; and
(3) a hindrance to the third party’s ability
to protect his or her own interests. Powers
v. Ohio, 499 U.S. 400, 410–11 (1991).

There is little doubt that, if Plaintiff’s minor clients
would like Plaintiff to treat them using conversion therapy,
they are injured by § 1-212.1. Likewise, Plaintiff’s close
relationship with his minor clients is evidenced by his ongoing
provision of counseling services. However, Plaintiff fails to
show how his clients are unable to protect their own interests
by independently bringing suit. Plaintiff asserts that his minor
clients cannot file suit because they face “embarrassment,

stigmatization, and opprobrium[.]” (ECF No. 47, at 6) (quoting
ECF No. 1, at 29). However, the court “cannot simply assume
that every” potentially embarrassed and stigmatized minor client
“is incapable of asserting his or her own claims.” Freilich,
313 F.3d at 215. “[T]hird parties themselves usually will be
the best proponents of their own rights,” and Plaintiff has
provided no concrete evidence that these alleged factors prevent
his minor clients from bringing their claims. Singleton, 428
U.S. at 114. Additionally, Plaintiff’s minor clients may file
pseudonymously to ensure their information remains private while
proceeding on their own behalf. See, e.g., Otto v. City of Boca
Raton, Fla., 353 F.Supp.3d 1237, 1247 (S.D.Fla. 2019) (“Further,

the Court notes . . . that minor clients have been able to file
suit pseudonymously in other cases challenging bans on SOCE.”)
(internal quotations and citation omitted); Doe v. Christie, 33
F.Supp.3d 518, 520 (D.N.J. 2014), aff’d sub nom. Doe ex rel. Doe
v. Governor of N.J., 783 F.3d 150 (3d Cir. 2015); Pickup v.
Brown, 42 F.Supp.3d 1347, 1349 (E.D.Cal. 2012), aff’d, 728 F.3d
1042 (9th Cir. 2013), and aff’d, 740 F.3d 1208 (9th Cir. 2014).
Accordingly, Plaintiff does not possess third party standing to
bring claims on behalf of his minor clients. As a result,
Plaintiff’s claim that § 1-212.1 violates his clients’ First
Amendment right to receive information, asserted only on behalf
of his minor clients, will be dismissed.

D. Eleventh Amendment Immunity
Defendants argue that, under the Eleventh Amendment, “the
Governor and Attorney General, the only two [D]efendants, are
immune from this suit and should be dismissed as defendants.”
(ECF No. 25, at 14). Defendants recognize that private
individuals may sue “[s]tate officials for prospective or
declaratory relief for ongoing violations of federal law[,]”
(ECF No. 26-1, at 11) (quoting Weigel v. Maryland, 950 F.Supp.2d
811, 831 (D.Md. 2013)) (internal quotation marks omitted) but
add that Defendants are not included under this Eleventh
Amendment exception because they are not specifically
responsible for enforcing § 1-212.1. (Id., at 12). Plaintiff

responds that Defendants are excepted from Eleventh Amendment
immunity because § 1-212.1 “suggests department- or board-level
officials are among the class of state officials who may be the
proper defendants by virtue of explicit authority in” the law.
(ECF No. 47, at 9).
Defendants’ argument will be reviewed under Rule 12(b)(1).
The Fourth Circuit has not decided whether sovereign immunity is
grounds for dismissal for failure to state a claim under Rule
12(b)(6) or for lack of subject matter jurisdiction under Rule
12(b)(1). Judges in this district favor analysis under Rule
12(b)(1) because immunity functions “as a block on the exercise
of that jurisdiction[.]” Gross v. Morgan State Univ., 308

F.Supp.3d 861, 865 (D.Md. 2018) (quoting Biggs v. Meadows, 66
F.3d 56, 60 (4th Cir. 1995)) (internal quotation marks omitted).
“A motion to dismiss based on lack of subject matter jurisdiction
pursuant to [] Rule . . . 12(b)(1) raises the question of whether
the court has the competence or authority to hear the case.”
Davis v. Thompson, 367 F.Supp.2d 792, 799 (D.Md. 2005). The
plaintiff bears the burden of establishing subject matter
jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982);
see also Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009) (noting challenge may be either facial, i.e., “a complaint
fails to allege facts upon which subject matter jurisdiction can
be based[,]” or factual, i.e., “the jurisdictional allegations

of the complaint [are] not true”) (alteration in original)
(internal citations and quotation marks omitted). Where
defendants raise the defense of sovereign immunity, they make a
facial challenge to the complaint. See, e.g., Weiss v. Price,
No. 17-cv-1127-ELH, 2018 WL 1156770, at *2 (D.Md. Mar. 5, 2018);
Downing v. Balt. City Bd. of School Comm’rs, No. 12-cv-1047-RDB,
2012 WL 6615017, at *3 (D.Md. Dec. 18, 2012). In a facial
challenge, “the facts alleged in the complaint are taken as true,
and the motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d
at 192.
As noted by the Fourth Circuit in Lee–Thomas v. Prince
George’s County Public Schools, 666 F.3d 244, 248–49 (4th Cir.

2012):
Pursuant to the Eleventh Amendment, “[t]he
Judicial power of the United States shall
not be construed to extend to any suit in
law or equity, commenced or prosecuted
against one of the United States by Citizens
of another State.” U.S. Const. amend. XI.
The Supreme Court “has drawn on principles
of sovereign immunity to construe the
Amendment to establish that an unconsenting
State is immune from suits brought in
federal courts by her own citizens as well
as by citizens of another State.” Port
Auth. Trans–Hudson Corp. v. Feeney, 495 U.S.
299, 304 (1990) (internal quotation marks
omitted). The States’ immunity also extends
to “state agents and state
instrumentalities.” Regents of the Univ. of
Cal. v. Doe, 519 U.S. 425, 429 (1997). “The
Eleventh Amendment bar to suit is not
absolute,” however. Feeney, 495 U.S. at
304. There are three exceptions to that
constitutional bar.

First, “Congress may abrogate the States’
Eleventh Amendment immunity when it both
unequivocally intends to do so and acts
pursuant to a valid grant of constitutional
authority.” Bd. of Trustees of Univ. of
Ala. v. Garrett, 531 U.S. 356, 363 (2001)
(internal quotation marks and alterations
omitted). . . . Second, “the Eleventh
Amendment permits suits for prospective
injunctive relief against state officials
acting in violation of federal law.” Frew
ex rel. Frew v. Hawkins, 540 U.S. 431, 437
(2004). . . . Third, “[a] State remains free
to waive its Eleventh Amendment immunity
from suit in a federal court.” Lapides v.
Bd. of Regents of Univ. Sys. of Ga., 535
U.S. 613, 618 (2002).

To the extent that Plaintiff seeks damages for violation of his
constitutional rights, Defendants are entitled to Eleventh
Amendment immunity.
However, the second exception is also relevant here based
on Plaintiff’s request for injunctive relief. The exception,
originally detailed in Ex parte Young, 209 U.S. 123, 155-56
(1908), applies to “officers of the state[] [who] are clothed
with some duty in regard to the enforcement of the laws of the
state[.]” Excluded from the exception are “officers who have
only a general obligation to enforce all laws of the state and
who lack a ‘special relation’ to the specific law or action being
challenged.” Stinnie v. Holcomb, 734 F.App’x 858, 874 (4th Cir.
2018) (citation omitted). “This requirement ‘protects a state’s
Eleventh Amendment immunity while, at the same time, ensuring
that, in the event a plaintiff sues a state official in his
individual capacity to enjoin unconstitutional action, any
federal injunction will be effective with respect to the
underlying claim.’” Kobe v. Haley, 666 F.App’x 281, 299 (4th
Cir. 2016) (quoting McBurney v. Cuccinelli, 616 F.3d 393, 399
(4th Cir. 2010).
§ 1-212.1(c) itself states that practitioners in violation
of the statute “shall be subject to discipline by the mental
health or child care practitioner’s licensing or certifying
board.” § 1-212.1(e) adds that “The [Maryland] Department [of
Health] shall adopt regulations necessary to implement this

section.” As Defendants highlight, the text of § 1-212.1 awards
the statute’s disciplinary and regulatory maintenance to
specific bodies. However, the statute does not explicitly
prohibit oversight by the Maryland governor and attorney
general. Additionally, the governor “supervise[s] and direct[s]
the officers and units” in the State of Maryland Executive
Branch, including the Maryland Department of Health. MD. CODE,
State Government, § 3-302. Similarly, the attorney general “is
the legal adviser of and shall represent and otherwise perform
all of the legal work for each officer and unit of the State
government.” Id. § 6-106; see also Bostick v. Smoot Sand &
Gravel Corp., 154 F.Supp. 744, 756 (D.Md. 1957), judgment rev’d

on other grounds, 260 F.2d 534 (4th Cir. 1958) (“[I]t has not
been unusual for the Maryland Attorney General to render legal
opinions to agencies of the Federal government, and to include
them in his official reports.”). “The requirement is not a
stringent one, as the officer being sued need only “‘have some
connection with the enforcement of the act.’” Stinnie, 734
F.App’x at 875 (quoting Young, 209 U.S. at 157). “[I]t is not
even ‘necessary that such duty of enforcement be declared in the
same act which is to be enforced.’” Id. (quoting Young, 209
U.S. at 157). Thus, Defendants have failed to demonstrate that
issuing an injunction against them would be ineffective at
prohibiting enforcement of § 1-212.1.
V. Conclusion

For the foregoing reasons, FreeState’s motion for leave to
file amicus curiae will be granted, The Trevor Project’s motion
for leave to file amicus curiae will be granted, Plaintiff’s
motion for leave to file surreply will be granted, and
Plaintiff’s motion to compel will be denied without prejudice.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10202245. Public record. Not legal advice.