Supreme Court hands victory to anti-LGBTQ “conversion therapy” advocates

Discredited “conversion therapy” just gained new legal footing under "free speech" claims

This newsletter is free and goes out to over 23,000 subscribers, but it’s only able to sustain itself due to the support I receive from a small percentage of regular readers. Would you please consider becoming one of those supporters? You can use the button below to subscribe or use my usual Patreon page!

---

The Supreme Court has ruled 8-1, on the global Transgender Day of Visibility no less, that faith-based torture of gay kids is acceptable because conservative Christians believe, with no actual evidence, that they can turn people straight. It’s yet another example of the Court giving unfair deference to religion with no regards to the facts.

In 2019, Colorado became the 18th state to pass a law banning “conversion therapy” for minors. The reasoning was simple: It’s not actual therapy. It’s not based in science and has been discredited by numerous medical and mental health organizations. It’s genuinely harmful, as evidenced by countless victims of the practice who have spoken out against it. The law said that any licensed medical professionals—bound to do right by their clients—couldn’t engage in the conspiracy.

“What this bill does is states that those who are licensed medical and mental health professionals cannot participate in that therapy,” [Sheena Kadi, deputy director of pro-LGBTQ group One Colorado] said on Saturday. “What this does is gives assurance to these families that are looking for that professional guidance that they will not be misled by a licensed medical or mental health professional that this is a credible practice.”

Of course, evangelical religious organizations saw this as discrimination because they’re not bound by facts, science, or ethics. They just treated this like anti-Christian discrimination because they feel it’s their duty to turn LGBTQ people cis and straight, even though that’s not something they can do without brainwashing people into suppressing who they are.

And then they found their perfect test case with Kaley Chiles, a licensed counselor in Colorado who insisted this new law violated her First Amendment rights to speak to her patients. If they wanted to change their gender identity or orientation, she wanted the option to help them achieve their goals. She also said she only offers “talk therapy” and none of the coercive/cruel elements sometimes associated with “conversion therapy,” including electrical shocks.

Kaley Chiles, presumably celebrating how many LGBTQ kids’ lives she’ll be able to ruin now (screenshot via YouTube)

While lower courts denied her claims on their merits, saying the Colorado law fairly regulated professional conduct and not speech itself, the Supreme Court took up the case and has now overturned those earlier rulings. And because the law went after even talking about “conversion,” two of the more liberal justices joined the majority ruling.

Even Vox’s Ian Millhiser, who’s been rightly critical of the Court when warranted, said this decision was “sadly” correct.

Discriminating based on viewpoint is just about the worst thing that a state legislature can do if it wants a law to survive a First Amendment challenge, which explains why two of the Court’s three Democrats joined Gorsuch’s opinion. In a separate concurrence, Kagan explains why she and Sotomayor voted against Colorado’s law, and her opinion leans heavily into the very strong rules against viewpoint discrimination.

Such laws, Kagan writes, are an “‘egregious form’ of content-based regulation,” in part because they suggest that the government had an “impermissible motive” when it wrote the law — “regulating speech because of its own ‘hostility’ towards the targeted messages.” For this reason, Kagan writes, laws that engage in viewpoint discrimination of any kind “are the most suspect of all speech regulations.”

Despite the ruling, Millhiser says, this doesn’t necessarily mean Colorado counselors will suddenly start engaging in “conversion therapy.” That’s because they could be sued for malpractice if they give bad advice, though the bar to prove that is much higher for patients. The downside to the decision, though, is that the ruling makes it harder for states to prevent that harm from occurring in the first place.

That’s what Justice Ketanji Brown Jackson said in her dissent. She argued that this isn’t a free speech issue at all because licensed clinicians in Colorado are duty-bound to follow the medical consensus—and no one’s stopping Chiles from sharing her opinions in other capacities. This is about regulating health care, in other words, not someone’s speech.

As applied to Chiles, the [Minor Conversion Therapy Law] treats the talk-therapy form of conversion therapy as a prohibited medical treatment. But Chiles is free to express her opinion about the efficacy of conversion therapy or her disagreement with Colorado’s conclusion that such therapy is harmful to minors. Colorado’s law does not target or prohibit the expression of such views by anyone in any form—including by licensed healthcare providers in discussions with patients and their families. All that Colorado’s law proscribes is the provision of such therapy to minors. This means that, while Chiles can freely promote conversion therapy and vociferously decry the State’s prohibition, she cannot practice that therapy without being subject to professional discipline under Colorado law.

…

Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned. Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want. Largely due to such State regulation, Americans have been privileged to enjoy a long and successful tradition of high-quality medical care.

Today, the Court turns its back on that tradition. And, to be completely frank, no one knows what will happen now.

…

So, to put it bluntly, the Court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers. A state license used to mean something to the patients who entrust their care to licensed professionals—i.e., that the person is certified to be one who provides treatments that are consistent with the standard of care.

That stops today.

Those long-term consequences are the real concern here. How many more children will suffer because of what the Court is now allowing in the name of “free speech”? They are more than willing to give deference to a Christian counselor, but they’re effectively ignoring the speech of the experts who say this sort of “therapy” directly harms patients.

Slate’s Mark Joseph Stern also points out that this decision doesn’t go as far as it could have, perhaps for a reason:

After this wind-up, the reader might expect Gorsuch to declare that Colorado’s law does not pass strict scrutiny and therefore violates the First Amendment. But he did not. Instead, having walked right up to that point, he stepped back, and sent the case back down to the appeals court, directing it to apply the test instead. He strongly implied that the Colorado ban, and others like it, would not survive this review “as applied” to talk therapy. But he left the question open for the appeals court to answer.

So the question of what this decision will mean in practice is still technically up in the air. Does a doctor have the right to tell a patient to take ineffective “medicine,” or to avoid surgery, due to his or her religious beliefs? We would normally say of course not but this decision leaves those options very much in the air.

And then there’s the obvious hypocrisy:

After Chiles, parents who seek to “convert” their transgender children have a constitutional right to do so. But thanks to last year’s decision in Skrmetti, parents who seek to affirm their transgender children with medication have no such right. States can ban gender-affirming medication but evidently cannot ban anti-transgender talk therapy. And the majority does not explain why anti-LGBTQ+ speech receives heightened protections when other viewpoints do not.

The Alliance Defending Freedom, the anti-LGBTQ Christian hate group that represented Chiles, celebrated their ability to make lives worse for LGBTQ people who happen to see Chiles and others like her in the future.

“Kids deserve real help affirming that their bodies are not a mistake and that they are wonderfully made. The U.S. Supreme Court’s decision today is a significant win for free speech, common sense, and families desperate to help their children,” said ADF Chief Legal Counsel Jim Campbell, who argued before the court in October. “States cannot silence voluntary conversations that help young people seeking to grow comfortable with their bodies.”

The irony in all of this is that no one has been punished by Colorado’s 2019 law yet. And now no one will be… at least unless someone drags in the body of literally harmed child. But the science hasn’t changed. “Conversion therapy” still doesn’t work. And anyone who tells a gay or trans child that they can (and should) change who they are could be subject to punishment. Eventually.

The American Humanist Association called the decision “completely divorced from reality” and that the ruling “sacrifices the health and well being of children on the altar of religious bigotry and homophobia in the medical profession.”

Americans United for Separation of Church and State said the decision “delivered a win to Christian Nationalists seeking to turn religious freedom into a weapon to harm others.”

The Freedom From Religion Foundation said this ruling “continues the trend of the Supreme Court favoring religious litigants under the guise of free speech.”

This is what happens, though, when the Supreme Court elevates ideology over expertise. When they allow religious extremism to override carefully thought-out policies backed by medical organizations. The message is clear: Your religious views are always permissible in any context as long as you can pretend it’s a “free speech” issue. Just ignore the pile of dead LGBTQ people over there, and all is fine. Who needs professional standards anyway?

The immediate effect here is that licensed therapists who happen to be religious can just pretend their advocacy of pseudoscience is nothing more than advice, and they can avoid the regulations that make their license meaningful in the first place.

Who pays the price for that? LGBTQ kids. Not politicians or judges. Certainly not the heartless staff at ADF who don’t give a shit about the self-harm or depression experienced by LGBTQ individuals.

So here’s the Supreme Court’s logic as it stands right now: Affirming a child’s identity can be regulated. But undermining it with junk therapy is constitutionally protected. Religiously motivated viewpoints get preferential treatment. Medical reality is no longer a priority.

But the fact that the Court stopped short of explicitly striking down all “conversion therapy” bans nationwide means there’s enough ambiguity for lower courts to wrestle with, which means there’s still a window—albeit a very narrow one—for states to defend evidence-based standards of care. But this decision still creates a roadmap for future faith-based challenges that dismantle protections under the guise of “free speech.”

That’s the real danger here. This won’t stop at conversion therapy. LGBTQ kids are just the sacrificial lambs here. If professional responsibility is replaced by personal beliefs, medical licenses will become decorative at best. More people will suffer because the conservative justices will do anything they can to help their right-wing religious allies.

---