Yesterday, by a rare vote of 8-1, the Supreme Court struck down Colorado’s ban on “conversion therapy” for minors (we’re talking about a ban on speech, not medical procedures). Judge Ketanji Brown Jackson dissented, breaking from her two liberal colleagues.
The background: in 2019, Colorado passed a bill banning “conversion therapy for a minor” (HB19-1129), which you can see here. it defined “conversion therapy” this way:
(5.5) (a) “CONVERSION THERAPY” MEANS ANY PRACTICE OR TREATMENT BY A LICENSED PHYSICIAN SPECIALIZING IN THE PRACTICE OF 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.
(b) “CONVERSION THERAPY” DOES NOT INCLUDE PRACTICES OR TREATMENTS THAT PROVIDE:
(I) ACCEPTANCE, SUPPORT, AND UNDERSTANDING FOR THE FACILITATION OF AN INDIVIDUAL’S COPING, SOCIAL SUPPORT, AND IDENTITY EXPLORATION AND DEVELOPMENT, INCLUDING SEXUAL ORIENTATION-NEUTRAL INTERVENTIONS TO PREVENT OR ADDRESS UNLAWFUL CONDUCT OR UNSAFE SEXUAL PRACTICES, AS LONG AS THE COUNSELING DOES NOT SEEK TO CHANGE SEXUAL ORIENTATION OR GENDER IDENTITY; OR
(II) ASSISTANCE TO A PERSON UNDERGOING GENDER TRANSITION.
This is aimed only at minors—people under 18. Conversion therapy was not characterized as a criminal offense, but as a violation of professional discipline—a form of “unprofessional conduct” that could be punished by licensing boards, including suspension of licenses and fines.
Note that although we hear a lot about the law banning “affirmative therapy,” most of us see that as a kind of therapy that urges children who are gender dysphoric to alter their gender or their sex. But the law as written also bans “gay conversion therapy”: attempts, once in vogue when homosexuality was seen as a mental illness, to prevent people from being gay—to keep them “straight.” There are laws in 27 states and the District of Colombia, as shown in the map below from the Measurement Advancement Project, prohibiting this kind of therapy.
As the SCOTUS blog reports (as does the Supreme Court’s decision, linked below), the ban was challenged by a therapist who wanted to help her clients transition the way they wanted:
The Supreme Court on Tuesday sent a challenge to Colorado’s ban on “conversion therapy” – treatment intended to change a client’s sexual orientation or gender identity – for young people back to the lower courts for them to apply a new standard. By a vote of 8-1, the justices agreed with Kaley Chiles, the licensed counselor challenging the law, that the ban discriminates against her based on the views that she expresses in her talk therapy. A federal appeals court, Justice Neil Gorsuch wrote for the majority, should have applied a more stringent standard of review, known as strict scrutiny, to determine whether the law violates the First Amendment as applied to Chiles.
But the Supreme Court also strongly hinted that the ban would fail that test. In his 23-page opinion, Gorsuch stressed that in cases like Chiles’, Colorado’s ban “censors speech based on viewpoint.” Because the First Amendment “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth,” Gorsuch continued, “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”
Justice Ketanji Brown Jackson was the lone dissenter. She argued that the majority’s opinion “could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers.”
Chiles went to federal court in Colorado to challenge the constitutionality of the 2019 law and block Colorado from enforcing it against her. She contended that she did not attempt to “convert” her clients. Instead, she said, she merely tried to help them “with their stated desires and objectives in counseling, which sometimes includes clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body.”
A divided panel of the U.S. Court of Appeals for the 10th Circuit allowed the state to continue to enforce the law. The majority concluded that the conversion therapy ban simply regulated conduct – a licensed mental health professional’s treatment of a client – that also happened to involve speech. Therefore, the court of appeals concluded, it would review the ban using the least stringent test for constitutional challenges, known as the “rational basis” test – a relatively low bar, the court of appeals said, that the ban passed.
Chiles came to the Supreme Court in 2024, asking the justices to weigh in. On Tuesday, they reversed the 10th Circuit’s ruling and sent the case back to the lower courts for another look.
Curiously, Chiles apparently wasn’t trying to force her clients to adopt one course of action over another, but to achieve the course of action they wanted:
[Chiles] contended that she did not attempt to “convert” her clients. Instead, she said, she merely tried to help them “with their stated desires and objectives in counseling, which sometimes includes clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body.”
The issue here is that it’s still “affirmative” in that Chiles went along with what their (minor) patients wanted rather than examining what they wanted.
The grounds for the decision were narrow: banning conversion therapy violated the First Amendment’s provision for freedom of speech (my bold below):
Gorsuch characterized the question before the justices as “a narrow one”: whether Colorado’s ban on conversion therapy violates the First Amendment as applied to the talk therapy that Chiles provides, and in particular whether the 10th Circuit was correct in applying “rational basis review” to the ban.
The Supreme Court, Gorsuch observed, “has long held that laws regulating speech based on its subject matter or ‘communicative content’ are ‘presumptively unconstitutional’” and therefore trigger strict scrutiny, which requires the government to show that a restriction on speech is narrowly tailored to serve a compelling government interest. “Under that test,” Gorsuch added, “it is ‘“rare that a regulation . . . will ever be permissible.”’”
The court has also acknowledged, Gorsuch continued, “the even greater dangers associated with regulations that discriminate based on the speaker’s point of view. When the government seeks not just to restrict speech based on its subject matter, but also seeks to dictate what particular ‘opinion or perspective’ individuals may express on that subject, ‘the violation of the First Amendment is all the more blatant,’” Gorsuch stressed. “’Viewpoint discrimination,’” Gorsuch said, “represents ‘an egregious form’ of content regulation, and governments in this country must nearly always ‘abstain’ from it.”
“Applying these principles,” Gorsuch continued, “we conclude that the courts below failed to apply sufficiently rigorous First Amendment scrutiny in this case.” First and foremost, Gorsuch wrote, although “the First Amendment protects many and varied forms of expression, the spoken word is perhaps the quintessential form of protected speech. And that is exactly the kind of expression in which Ms. Chiles seeks to engage.”
. . . The majority rejected the state’s contention that the conversion therapy ban targets conduct or medical treatments, rather than speech, and therefore should be subject to a more deferential standard of review. Although the ban “may address conduct—such as aversive physical interventions” – Gorsuch wrote, Chiles “seeks to engage only in speech, and as applied to her the law regulates what she may say,” as well as “what views she may and may not express.” “Colorado,” Gorsuch concluded, “does not regulate speech incident to conduct; it regulates ‘speech as speech.’”
Note as well that Colorado’s ban wasn’t fully negated, nor were similar bans throughout the U.S.. Rather, the case was sent back to the lower courts for reevaluation on these grounds (from Grok, with sources); the applicable appellate courts must:
- Apply strict scrutiny (the most demanding level of First Amendment review) to the law as it applies to Chiles’s talk therapy. Under this standard, Colorado bears the burden of proving that the restriction on Chiles’s speech is narrowly tailored to serve compelling state interests.
- Reconsider the case in light of the Court’s determination that the law engages in viewpoint discrimination (banning one set of views on sexual orientation/gender identity while expressly permitting the opposing “affirmative” views, such as acceptance, support, identity exploration, or assistance with gender transition).
The Court’s opinion, concurrences, and Justice Jackson’s dissent can be found by clicking on the screenshot below:
I’ll be brief here (I hope): the Court screwed up big time here, failing to recognize, as Justice Jackson said in her 35-page dissent (which she read from the bench in toto), that in the case of therapy, medical or psychological, talk is more than just speech, it’s treatment. From her dissent:
No one directly disputes that Colorado has the power to regulate the medical treatments that state-licensed professionals provide to patients. Nor is it asserted that, when doing so, a State always runs afoul of the Constitution. So, in my view, it cannot also be the case that Colorado’s decision to restrict a dangerous therapy modality that, incidentally, involves provider speech is presumptively unconstitutional. In concluding otherwise, the Court’s opinion misreads our precedents, is unprincipled and unworkable, and will eventually prove untenable for those who rely upon the long-recognized responsibility of States to regulate the medical profession for the protection of public health.
Remember that medical therapy uses speech as well. Any doctor who simply told a patient to go home and drink vinegar with herbs to treat their cancer would be guilty of professional misconduct. Note that here the doctor doesn’t do anything, but could still be punished for malpractice. The doctor must adhere to reasonable and accepted forms of treatment, and that includes treatments suggested only through speech.
Brown notes that conversion therapy is “dangerous,” and nearly everyone would agree with that vis-à-vis gay conversion therapy. It’s long been recognized by therapists and their organizations that trying to force someone out of becoming gay, instead of simply talking over the issue, is acting unethically and, insofar as this causes stress and may change someone’s life in a negative way, i.e. causing harm.
We’re beginning to recognize that the same holds for “affirmative therapy” as well. If it works, affirmative therapy puts young people on a one-way treadmill leading to to puberty blockers, then to adult hormones, and perhaps to surgery. Britain’s Cass Review, as well as studies in Scandinavian countries, have already recognized that “affirmative therapy” that leads to blockers and hormones is of unproven efficacy and could be dangerous over the long term. Insofar as talk therapy promotes these actions, then, it too is dangerous—much like telling someone they should take vinegar for cancer. It seems only rational that when a minor has a psychological problem around gender or sexuality, the therapist should be giving objective treatment—helping the patient sort out their feelings—and not imposing some outside ideology on the therapy. For outside ideology is exactly what is polluting “conversion therapy”: you shouldn’t be gay on the one hand, and on the other your gender dysphoria should be roundly affirmed (e.g., you feel like a girl inhabiting a boy’s body, and thus should go that route) rather than examined.
Perhaps when this case is remanded to lower courts, they will clarify these issues, notably that talk therapy is equivalent to action. But surely the Supreme Court could have said that, and, as far as I can see, they messed up big time. I’m especially disappointed that the other two liberal justices, Kagan and Sotomayor, deemed the Colorado law a case of “viewpoint discrimination.” It may have been that way for legislators, but the law as written doesn’t deal with motivations. It is trying to prevent harm to minors.
I disagree strongly with the Court’s decision, while at the same time remembering that the law it banned is aimed at minors, not adults.
The problem with banning conversion therapy is that these bans have been construed to ban counselors from doing anything more than affirmation for the clients who are considering transgendering. They can not do a neutral exploration; they must affirm their gender identity.
We really need clarification of what is and isn’t conversion therapy. The counselor who brought this case to court also wanted to be able to freely explore thoughts and feeling with clients who were gay and were uncomfortable with their sexual orientation.
Thank you for discussing the case and bringing up the extra points, and for including the “definition” of conversion therapy being considered.
In order to be more effective Justice Jackson needs to be more persuasive.
Sometimes the decision has to be reviewed carefully by legal minds to determine the full implications. “In general” one would hope an 8-1 decision was decided correctly.
The psychotherapist’s responsibility is to offer, discuss, and help a patient evaluate various points of view rather than imposing views on the patient. We see some reports and literature these days in which therapists are imposing social and political viewpoints and interpretations on their patients, and these viewpoints are largely, but not invariably, left-wing. Those who do so may be guilty of malpractice, but I see little evidence that legislators are concerned, although they probably should be.
Take a look at Jonathan Turley’s piece on WordPress today. “No One Knows What Will Happen Now”: Justice Ketanji Brown Jackson Warns Against Unbridled Free Speech.”
The opinion is pretty narrow in the sense that it leave entirely untouched the rest of the law banning conversion therapy. The only limitation considered is a licensed professional whose practice is exclusively talk therapy,, i.e., no prescriptions, no drug therapy, no medical interventions.
Well, I’d have to read the opinion, but this struck me as a good thing. On the question of whether a vote like this is unusual, it is easy to be misled by high profile, partisan cases. Last term the number of cases decided unanimously was 43%, and the number of cases decided on partisan lines was only 9%.
“Winters and colleagues (2021) proposed to define sexual grooming [ between adult and child ] as:
“the deceptive process used by sexual abusers to facilitate sexual contact with a minor while simultaneously avoiding detection. Prior to the commission of the sexual abuse, the would-be sexual abuser may select a victim, gain access to and isolate the minor, develop trust with the minor and often their guardians, community, and youth-serving institutions, and desensitize the minor to sexual content and physical contact. Post-abuse, the offender may use maintenance strategies on the victim to facilitate future sexual abuse and/or to prevent disclosure” (p.933).”
Identification of red flag child sexual grooming behaviors
Jeglic et. al.
Child Abuse & Neglect
Volume 136
February 2023, 105998
https://doi.org/10.1016/j.chiabu.2022.105998
Winters, et. al. 2021:
Toward a Universal Definition of Child Sexual Grooming
Deviant Behavior
1-13 (2021), pp. 1-13
https://doi.org/10.1080/01639625.2021.1941427
if you take out the parts about sexual abuse/access, this “grooming” sounds a lot like “affirmative” gender ideology, in therapy, schools, etc. For example, look at the policies of schools to hide childrens’ social transition from their parents.
So 8-1 with Brown again as the dissenter, eh? This (yes it is from Fox):
https://www.foxnews.com/politics/kagan-turns-liberal-ally-jackson-footnote-jab-over-free-speech?msockid=30611834fc5561fb2ad10e9dfd1660a3
“Kagan joined the eight justices in finding that the Colorado government erred in regulating Chiles’ practice because the state used a 2019 law that only banned therapists from counseling minors if the therapy entailed advising them on how to resist becoming transgender or gay. That amounted to restricting one viewpoint, in violation of the First Amendment, the majority said.
Kagan said that if the law were “content-based” rather than “viewpoint-based,” it would present less of a free speech problem.
“Because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward,” Kagan said. “It would, however, be less so if the law under review was content-based but viewpoint neutral.”
So this seems to me (admittedly not any kind of legal expert!) that either Kagan or Brown does not understand the law. This is not the first time that Brown has stood on her own, nor the first time that other Supreme Court Justices have openly questioned her comprehension of the law.
I’m going with Kagan and the rest of the Supreme Court. Kagan even gives a clue as to how such laws should be written to avoid this in the future.
Brown accompanied her dissent with more grandstanding and attention-grabbing behavior, which is her MO. I fear that she is more of a liberal activist than a sharp legal mind.
I’ll respectfully disagree with our host. I am very, very wary of the argument that “speech causes harm”, and thus can be regulated as “harmful”.
If one accepts that principle then one can regulate more-or-less any controversial speech. And that is exactly what “cancel culture” attempts. That’s exactly why the woke argue that reality is “socially constructed” out of speech, so that they can then regulate speech.
Insofar as speech of therapists leads to kids taking puberty blockers whose effects are unknown, or undergoing surgery, as the Cass Report decided, you don’t think that’s “harm”?
That depends a lot on the “leads to”. If the therapist is prescribing or encouraging the child to take puberty blockers, then yes that is harmful. But if the therapist is not suggesting or promoting medical interventions, but is seeing their role as talking only, then I don’t think that should be illegal (even if the child then asks for and receives puberty blockers from someone else — it’s this stage that should be controlled).
Jerry: do you believe that this ban would have applied to “affirmative therapy” as if it were considered a therapy that convinces homosexual young people to transition, to make them appear to be heterosexual? (i.e. to convert them by way of transition, to “trans the gay away”) In that context, I could understand your disagreement with the SCOTUS decision. However, I believe that the ban as it was written, would have had the opposite effect: it would have strengthened “affirmative” therapy… it would have strengthened the process of transing the gay away.
I am weary of answering comments, but I will answer your question. I think that no therapy should be aimed at changing sexual behavior one way or another, and the APA recognizes this with the quote I gave above. I believe I said that many people agree with me that therapy should not be aimed to making homosexual youths to appear heterosexual. No therapy should aim at effecting sex-identification changes, but it can aim at helping young people explore their feelings. Remember that the “ban” does not criminalize these behaviors, they simply make them subject to professional sanctions and fines.
I don’t think the Colorado law as written would strengthen affirmative therapy, for it explicitly says this:
Is that unclear or something? Seems clear to me.
Can’t comment on the decision, haven’t read it. I do note that it sends the case back to lower Courts to adjudicate according to its 8-1 ruling. That might be why it’s so hard to form a definitive opinion about the case based only on the decision.
Professional speech, at least as uttered by regulated licensed professionals like physicians, lawyers, psychologists, and nurses, is not entirely free. Anything you say to a patient/client, or to the public while representing yourself as a licensed member, can be investigated as professional misconduct unbecoming. A doctor who advises patients (or the public while speaking with medical authority as a doctor) not to comply with public health orders/regulations seeking to control communicable disease can be disciplined by the regulator, even if not punished under the criminal law.* This is more sweeping than merely advising a patient with Covid to get ivermectin off the Internet, or writing a prescription (a form of “speech”) for it. Speaking against vaccination or euthanasia where it is legal and a professional obligation could be professional misconduct depending on the facts.
Some jurisdictions are vigorous in applying judicial First Amendment review to professional disciplinary tribunals that punish Members for “harmful, unprofessional” speech. Some not at all; whatever the tribunal says, goes.
(*The police prefer to refer complaints about such matters to the regulator, because it is easier for the regulator to get a conviction under rules of administrative procedure than to get criminal convictions beyond reasonable doubt. Also, the membership pays for disciplinary proceedings, not the taxpayer-funded police and Courts.)
Edit: “Awaiting moderation” Did I do something wrong? Sorry.
If WordPress can be configured to give a more informative message then that would help a lot. I haven’t been “awaited” recently, but there was a spate of them a few months ago and I couldn’t find a reason. (It may be an AI™ statistical inference from overall word usages, in which case there is no “reason” in the usual sense.)
I agree with our host. I like the outcome in this case because there is just not enough evidence that the so-called conversion therapy causes significant harm for transgender youth, for example. But the argument that it should be allowed because it is free speech is not a good argument because, as pointed out by Jerry, the speech is the treatment here. If we ever have enough evidence that it is a harmful treatment, we should ban it just like we ban harmful medicines.
Jerry, I don’t understand why you would be upset by this decision. It is in accord with the science of biology.
Let’s acknowledge that this litigation is not actually about “traditional” conversion therapy (i.e. converting feelings of same-sex attraction to hetero-attraction in a patient, whether or not that patient is asking for it). I think such conversion therapy did at one time, and maybe still does involve a vanishingly small number of therapists and their patients, but has never really been a serious threat against the LGB minority.
This litigation is about “affirmative therapy” whereby therapists, not to mention counselors, schools, and all sorts of other institutions, affirm a person’s belief that they are actually of the opposite sex, upon the simple declaration from that person. This culture of affirmation – which as anyone can see has captured many institutions – has resulted in skyrocketing demand for gender transition treatment, be it simply social, or through hormones, all the way to disfiguring surgeries.
Now a minority of therapists are saying, wait a minute, let’s look at underlying causes, and let’s see if simply talk therapy can alleviate a patient’s gender distress. The “conversion therapy” bans are aimed against this minority of therapists, using the logic that such therapists are trying to convince (“convert”) their patients, that they are not of the opposite sex. Such logic confuses the sexual orientation of a person (a natural quality that cannot be changed) with a person’s gender distress or gendered feelings (that are instead a social construct, resting as they do upon social expectations and stereotypes, and in fact are mutable. Trans advocates even admit this, e.g. “gender fluid”).
As can be seen in the definitions, “affirmative therapy” is excluded from the ban, but to pursue a change in gender identity is not excluded; i.e. that is banned. I cannot believe that there wouldn’t be a chilling if not suppressing effect upon therapists, who hope to find root causes underlying their patient’s gender dysphoria or who wish to transition; that would be interpreted as seeking to change their patient’s gender identity, and this would be banned.
This SCOTUS decision appears to be a win for those who are trying to protect children from the gender identity ideology, which leads some of the most vulnerable and confused kids and young adults down the path of life-long medicalization, and for some even physical surgical mutilation, when actually just going through puberty and growing up would have solved their problems, or at least (at first) some good talk therapy.
The main problem here is that talk therapy is not medicine, it is just talk. Your analogy with a doctor prescribing vinegar for cancer doesn’t work, because in that case the doctor is prescribing a treatment for an actual medical condition. But a therapist who simply talks to someone about his feelings and tries to help him modify his feelings and behavior in a way that is in accord with his wishes and is not coercive, isn’t doing much more than being a counselor.
No, the doctor is telling you what you should do. And you are clearly at odds with major psychiatric and psychological associations who strongly oppose gender- or sexual-orientated conversion therapy. Do you think they are wrong?
Yes, they are wrong. Why shoud it be considered okay in the case of a man who wishes to be a woman for doctors to perform surgery which doesn’t fix any medical problem but instead creates lifelong medical problems, while it is considered malpractice for a therapist to help a gay man who desires to be straight to modify his behavior? Do you really believe that the latter causes more harm than the former?
If you can find a doctor to operate on an adult for that purpose, that is not illegal. And you don’t seem to understand that this law is for MINORS, not for adults.
Jerry: Is this not an argument from authority? The APA is captured by gender ideology, as is the AMA, which recently tried (clumsily) to back away from its endorsement of the American Society of Plastic Surgeons (ASPS) coming out against youth gender surgeries. The argument that the medical associations are all in agreement no longer holds, and so undermines the argument from authority, that any medical association is right about this.
Give me a break, please. The APA is making the same argument I am: it’s not good to allow talk therapists to say anything they want to their patients, and there are professional regulations that should be adhered to.
Psych associations oppose gender conversion therapy (and condemn the SCOTUS ruling) because they want to see “trans” children (scare quotes because there is no such thing) “affirmed” as the “gender” they “know” they are, opposite the sex fixed at conception. They want to punish therapists who propose supportive talk rather than rushing in with irreversible drugs. They don’t want these children to go through the “wrong” (physiologically right) puberty, not because they’ll kill themselves — they won’t — but because most will discover they weren’t trans at all, just homosexual teenagers of a “gender” that matches their sex. They will have “erased” their own biology-denying trans identity and it was the therapist’s fault.
The major psych associations are indeed wrong. They may be right about conversion therapy that attempts to turn homosexuals hetero. But that’s not done very much anymore. The agitation against “conversion therapy” today is that if it worked it would cause acceptance of and happiness with one’s conception sex, which we can’t allow because every successful case would repudiate the existence of trans as a thing.
You have argued that affirming minors as the sex they aren’t is wrong, because it leads to harmful drugs and surgery attempting to “fix” it. If the law in Colorado told therapists they couldn’t do affirming talk therapy (because of where it leads to), I can see why you would object to the Supreme Court’s decision. But the law in Colorado says the therapists must (practically) do the opposite: affirm trans because any pushback is conversion therapy.
States need the power to set professional rules on what clinicians may say to patients. Sure. But that is still speech, and regulations or laws must meet “strict” standards to not run afoul of the First Amendment. It must also be based on truth.
To recap, you say talk therapists should not be able to say whatever they want to clients, and I agree. But the “talk” the Colorado law prohibits them from saying is the very speech that I (and I think you) would argue they should be saying: “No, you don’t really want to go through gender transition as a minor. You will wreck your life.” They should be prohibited from encouraging transition. That is a speech-restricting law I could get behind, just like a prohibition against anti-vax crazy talk….provided it could surmount the high “strict scrutiny” barrier.
I’m sorry, but I cannot agree with those commenters who think that therapists should be able to say ANYTHING to their patients (this includes psychiatrists, who are M.D.s and whose practice is often considered medical), and there should be no professional standards or guidelines for how you deal with something like gender dysphoria or a child confused about their sexual attraction.
If you think that this all counts as free speech and should not be restricted in any way—because of course free speech is not restricted in any way save for a few exceptions not relevant here—then say so. Why are therapists trained to not push patients in a given direction? Regardless of what Chiles did, and I’m not sure about that, I cannot say, as many here seem to feel, that a talk therapist can do anything they want when faced with a minor having a problem.
This is from a bulletin by the American Psychological Association, who came out against the Court’s decision:
I go along with this. Apparently many here don’t. I just learned that the Freedom From Religion Foundation, which submitted an amicus brief in this case, also opposes the Supreme Court decision; you can read their arguments here.
Given their penchant for wokeness and clear bias in that direction, is FFRF the best arbiter here?
Is this a case of the ban being a good thing medically but being so clumsily worded that it runs afoul of established free speech law, which forces even liberal people like Kagan and Sotomayor to throw the legal flag, so to speak? Almost similar to a guilty person getting off on a technicality that nonetheless must be applied.
Does FFRF detail where the legal reasoning of all of the rest of Court is wrong and only one has it right? I simply can’t get past the 8-1 decision.
I didn’t say the FFRF is the best arbiter; I would argue that the APA is a good arbiter. The FFRF has too much of an anti-religion take. And you are supposed to judge arguments on what they say, not who makes them. I, for one, don’t judge the rightness of Supreme Court decisions by how lopsided the vote is.
Without robust protections for free speech, meaningful disagreement with professional “consensus” becomes impossible. And it really wouldn’t matter whether that consensus was scientifically informed or ideologically driven and manufactured. These pages have for years detailed instance after instance of the ideological capture of professional associations, credentialing agencies, universities, professional journals, political bodies, and others. Moreover, they have documented attempts both successful and otherwise to silence those who disagree—whether that be through social pressure, licensing reviews, refusal to publish, professional discipline, or legal action. Much mischief has been done in the name of preventing “harm.”
For as long as one has free speech, there will always be tension between it and expert opinion. History is littered with examples of things professionals once believed—until they didn’t. Hormone replacement therapy, ulcers, nutrition advice. We could go on all day looking at medicine alone. Nor is it of any use to say “well, the science evolved.” It never would have happened if people had been prevented from publicly disagreeing. If we claim that “the science is settled,” then let’s explain the frequency of medical “reversals” that one sees, where once widely-accepted practices are eventually proven to be useless or even harmful. And that applies to the more scientifically-grounded side of the house; the landscape in psychology and psychiatry is far murkier.
Unfortunately, I see no way to regulate “harmful” talk without also silencing those brave (stupid) people who disagree with misguided (informed) professional consensus. One can always find examples in which it makes sense to silence dissent. In cases where practitioners might say virtually “ANYTHING” to minors under their care, malpractice lawsuits remain available when words or actions cause demonstrable harm. Successful suits also act as strong deterrents. But as a general principle, if my position is going to cause harm, I’ll err on the side of radically free speech.
We are not talking about public debate here; we’re talking about what therapists say to their patients in therapy. By all means, professionals can debate methodology all their want, and preferably there should be tests, though that’s hard with therapy. But you are conflating that kind of debate with the therapeutic process. So you think there should be no penalty assessed to a therapist who, when a patient says, “I think I might be gay,” responds, “No, you really shouldn’t do that; it could be a hard life.” Or if a patient says, “I feel like killing myself,” a therapist responds, “Hmmm. . maybe you should think about doing that.” It’s all free speech isn’t it? After all, that’s the speech that you’re erring on the side of.
Here’s another interchange you appear to favor. Pregnant patient goes to therapist and says, “This is really hard; I’m thinking of getting an abortion.” Therapist responds, “No, you can’t do that. Abortion is murder, it’s against God’s law. I’ll talk you through this so you can go ahead and have the baby.” That’s FINE, isn’t it.
No, it’s not fine. Therapists are trained not to take political or religious positions in front of their patients. They are not supposed to say to a Republican patient that “Trump is a jerk.”
I am not sure if the commenters here understand the therapeutic process, but all therapists are trained to interact with the patient in a way that is not harmful. And that means curtailing speech. The doctor’s dictum is “First, do no harm,” and that applies to talking therapy, too.
I’ll quote from the Code of Ethics of the American Psychologial Association’s Code of Ethics (if you dismiss this because you think the APA is woke and can’t be trusted, you might as well leave the site) with regard to SOCE–Sexual orientation change efforts. The very thing that the Colorado law banned:
WHEREAS APA’s 2005 Policy Statement on Evidence-Based
Practice in Psychology defines evidence-based practice as the
integration of the best available research with clinical expertise
in the context of patient characteristics, culture, and preferences
(APA, 2005b);
BE IT THEREFORE RESOLVED that consistent with the APA
definition of evidence-based practice (APA, 2005b), the APA
affirms that scientific evidence and clinical experience indicate
that SOCE put individuals at significant risk of harm;
BE IT FURTHER RESOLVED that the APA opposes SOCE
because such efforts put individuals at significant risk of harm
and encourages individuals, families, health professionals, and
organizations to avoid SOCE;
BE IT FURTHER RESOLVED that after identifying ethical issues
(APA, 1998) and empirical problems (APA, 2009) with SOCE,
and after reviewing scientific evidence on SOCE published since
2009, the APA affirms SOCE puts individuals at significant risk
of harm;
I agree with SCOTUS on this one, and disagree with Jerry. To take up Jerry’s example of a doctor telling a patient with cancer to treat him/herself with vinegar: SCOTUS did not say that doctors can say whatever they want to their patients (because of the First Amendment). SCOTUS said that strict scrutiny should be applied to laws that restrict what doctors can say to their patients. The state has a compelling interest in doctors practicing evidence-based medicine. The crucial question here is whether a law that compels affirmative therapy for gender distress, and outlaws any other treatment is evidence-based, and hence furthers the legitimate state interest that doctors be practicing evidence-based medicine.
When your patient has cancer, talking to him about the curative power of vinegar for cancer would that be evidence-based treatment?
I think it’s a good decision, and I would like to see a definition of conversion therapy. To me, telling a child they can change their sex is the most egregious conversion therapy.
The Court found the law to be biased because it allowed counselors to provide “affirming” therapy (supporting a child’s LGBTQ+ identity) but banned “conversion” therapy. This was deemed unconstitutional “viewpoint discrimination.”
I have friends whose teenage son had a variety of mental health issues. He ultimately landed on identifying as a woman. Ten+ years ago, the only resource they found was the trans-affirming organization PFLAG. It should not be illegal for a reality-based therapist to support those who might want to take it slow rather than jump straight to “gender affirming” care.
Seems to me that if talk therapy can be reclassified as “conduct,” many other activities could be similarly reclassified, such as teaching.
Yep, and the First Amendment does not hold in the classroom. You know that, right? But I am sorry that you do not see a difference between teaching and one-on-one therapy for people in mental difficulties.
And yet it was the First Amendment that overcame laws prohibiting the teaching of evolution.
I fear that if teaching becomes “conduct,” even scientific validity will not be reason enough to overcome government prohibitions.
Is your position, then, that teachers can teach anything they want in the classroom, because their classroom speech is protected by the First Amendment. The answer is “no,” they can’t. Why? Because some teaching is not done according to accepted standards, and professors or teachers can be held to account. Likewise with therapy.
Teaching is not “conduct”? What is it, then?
I must disagree with PCCe here. Based on what I have read I think the Supremes got this right.
First of all, as SCOTUSblog notes, this case focused on a challenge brought by licensed counselor Kaley Chiles, who engages in talk therapy:
“Gorsuch characterized the question before the justices as “a narrow one”: whether Colorado’s ban on conversion therapy violates the First Amendment as applied to the talk therapy that Chiles provides, and in particular whether the 10th Circuit was correct in applying “rational basis review” to the ban.
“…The majority rejected the state’s contention that the conversion therapy ban targets conduct or medical treatments, rather than speech, and therefore should be subject to a more deferential standard of review. Although the ban “may address conduct—such as aversive physical interventions” – Gorsuch wrote, Chiles “seeks to engage only in speech, and as applied to her the law regulates what she may say,” as well as “what views she may and may not express.” “Colorado,” Gorsuch concluded, “does not regulate speech incident to conduct; it regulates ‘speech as speech.’”
I don’t see that this ruling prevents the possibility of better laws being passed, laws that specifically prohibit harmful conversion practices:
“…Justice Elena Kagan joined the Gorsuch opinion, but she also penned a four-page concurring opinion that was joined by Justice Sonia Sotomayor. She called Chiles’ case a “textbook” example of viewpoint discrimination. A law that was the “mirror image of Colorado’s” – by prohibiting therapy affirming a young person’s sexual orientation or gender identity – would raise the same First Amendment concerns, Kagan said.
Kagan suggested, however, that “if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.”
https://www.scotusblog.com/2026/03/supreme-court-sides-with-therapist-in-challenge-to-colorados-ban-on-conversion-therapy/
Yes. A state that banned sex-trait modification therapy (drugs and surgery) in minors, as several have, might also pass a law banning talk therapy that counseled patients to travel to a trans-friendly state to have treatment there, “because you really are trans, of course, and must receive ‘medically necessary’ therapy congruent with your gender identity, but which the transphobes who run this state won’t let you have.” This speech I would call misinformation or propaganda but I tend to side with Justice Kagan that the hypothetical law banning it would indeed raise 1A concerns, especially if the therapist uttering it sincerely believed it and wasn’t trying to defraud or deliberately harm the (minor) patient.
Ideally, the self-regulating learned professions should determine the operational truth (an approximation good enough to guide therapy in the individual patient despite the unknowns that always attend clinical encounters) of their “content”. But just as they get acts gravely wrong — drugs and surgery — the professions may get speech wrong, too. This isn’t evil. It’s just (usually) wooden-headedness. Where does the state intervene (as it has the right to) and say, “You can’t do this….and you can’t say that, either, because it’s not true.”?
(Third comment of 33. I’ll shut up now.)
I agree with Jerry. This isn’t a simple free speech case. It’s about THERAPY.
Under Colorado’s laws, affirming a child’s decision to transition to another gender is permissible while affirming her decision to detransition is impermissible. Does that sound intelligent? Kind? Like good public policy? As Dr. Coyne and others have pointed out, talk therapy crosses the line into treatment that may be regulated. The state and professional boards also cross a line into viewpoint discrimination when they prohibit a therapist from affirming a client’s legal wishes in this manner. So two rights are in conflict in this case. Because the state’s regulation of speech in this case is based on political and medical philosophical concerns and not based on what the client wants or needs, the court’s direction in this case supports the individual instead of the power of the community to suppress inconvenient views. I’ve reached a conclusion that differs from Colorado’s or many posters here. The court did not err, it decided that a state must have very good and proveable reasons for suppressing a professional viewpoint. Did Colorado have those reasons? If so, it may prevail in the court of appeals and, probably, keep this case going for another few years. If not, an individual beats a whole cadre of institutional actors and freedom and common sense win a round for a change.
A majority of justices appointed by Democrats, voted to overturn the Colorado law. It must be have been a really bad law. This was no 6-3 decision. 8-1 shows that a majority of justices appointed by Democrats, agree with justices appointed by Republicans.