Supreme Court Seems Skeptical About Bans On Conversion Therapy
The conservative majority of the Supreme Court seems to be leaning in favor of a Christian therapist who is challenging a Colorado ban on conversion therapy on the grounds of free speech infringement.
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The conservative majority of the Supreme Court has signaled that it is prepared to rule against Colorado’s ban on conversion therapy for minors, siding with a Christian licensed therapist who claims the ban violates her First Amendment rights.
In hearing Chiles v. Salazar, the justices must decide if states may ban the practices of “converting” queer people to heterosexuality or transgender people to cisgender. The court’s decision, expected by June, will affect the more than 20 other states that have similar bans on the outdated and dangerous practice.
Related: SCOTUS To Consider Whether Conversion Therapy Bans Violate First Amendment
The 2019 Colorado ban at the center of the case prohibits “a mental health care provider from engaging in conversion therapy with a patient under 18 years of age.” Banned practices are defined as “psychiatry that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” Not banned are practices that provide “acceptance, support, and understanding.”
During today’s arguments, justices debated whether the “conversion therapy” covered by the Colorado ban should be viewed as speech or treatment and if the banned practice causes harm to minors.
If viewed as speech, as therapist Kaley Chiles claims, then her views are protected under free speech. If viewed as treatment, then it must be treated as medical care, which is subject to regulation. The decision between protected free speech and legal regulation on professional conduct has split the lower courts.
Chiles’s representation argued that the speech that takes place in therapy is constitutionally protected, adding, “there is ongoing harm every day. Mrs. Chiles is being silenced, and the kids and families who want her help are unable to access it.” The lawyer arguing on behalf of Colorado maintains that the ban does not interfere with First Amendment rights, stating that “it does not stop a professional from expressing any viewpoint about the treatment to their patient or to anyone else.
Based on the justices’ line of questioning, the conservative majority seems likely to conclude that the Colorado ban is trying to regulate free speech in favor of one viewpoint over another. Justice Samuel Alito said encouraging minors to embrace gender identity or sexuality while prohibiting speech that allows them to question it “looks like blatant viewpoint discrimination.”
As for whether the banned treatment causes harm to minors, the legal defense for the therapist and the Trump administration claimed that there was no evidence indicating that such therapy causes harm. Colorado’s lawyer argued that there is a “mountain of evidence” that conversion therapy is both ineffective and harmful.
The American Psychiatric Association (APA) has stated that therapy aimed at changing sexuality and gender identity can be harmful and has caused “depression, sexual problems, low self-esteem, and suicide.” The rationale for conversion practices came into question when the APA reversed its position that homosexuality was a mental disorder in 1973.
Chiles’s representation is a group of lawyers from the Alliance Defending Freedom (ADF), a legal-defense fund focused on conservative Christian issues that has become synonymous with high-profile culture war cases. The ADF represented the Colorado baker who refused to make a wedding cake for a gay couple, the web designer who refused to make a wedding website for a gay couple, the Hobby Lobby case, which ruled that employer health insurance could exclude contraception coverage, and the Mississippi case that overturned Roe v. Wade. In the coming months, the ADF has a case that defends the right to bar trans athletes from women’s sports teams and a case defending a pregnancy center’s First Amendment rights, both set to be heard by the Supreme Court.
If the Supreme Court rules that the Colorado ban on conversion therapy infringes on free speech, the case could be sent back to the lower court for further consideration or they could declare the law unconstitutional and strike it down.
