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The Supreme Court agreed on Monday to consider whether state laws that prohibit “conversion therapy” for LGBTQ+ minors violate the First Amendment. It is very likely that the conservative supermajority will declare that these bans violate the free speech rights of anti-LGBTQ+ counselors. In doing so, the court will effectively invalidate laws in 28 states, Washington, D.C., and Puerto Rico that restrict “conversion therapy” for minors. Today, these laws protect a majority of LGBTQ+ youth from this dangerous practice. All those protections could soon be cut down by a supermajority eager to wield the First Amendment as a sword in the furious culture war against gay and transgender children.
It is easy to forget in today’s climate of anti-trans persecution, but “conversion therapy” bans were recently a point of bipartisan consensus in much of the country. Many Republican governors signed these measures into law, leading to their adoption even in red and purple states like Utah, Nevada, and New Hampshire. Lawmakers were moved to action by accounts from victims of the cruel and horrific methods that go into “converting” an LGBTQ+ child into a straight or cisgender person. In one New Jersey case, for instance, a counselor forced his “clients” to undress in front of him, beat effigies of their mothers, and physically hurt themselves each time they felt same-sex attraction.
The reality is that conversion therapy simply does not work: Being gay or transgender is not a disease to be cured, it’s a fundamental aspect of a person’s identity that cannot be driven out through dubious “therapeutic” methods. Every mainstream medical group in the United States that has considered the issue has opposed “conversion therapy” and endorsed its prohibition, including the American Psychological Association, the American Psychiatric Association, the American Medical Association, the American Academy of Child and Adolescent Psychiatry, and the American Academy of Pediatrics. As the American Psychological Association recently explained following a “comprehensive” review of the scientific literature, efforts to “convert” LGBTQ+ children are “dangerous, unethical, ineffective” and “discredited.” They fail to change the patient’s sexual orientation or gender identity while frequently contributing to “depression, suicidal ideation, anxiety, substance abuse,” and a host of other ills. “A confluence of research,” the group wrote, “supports the conclusions” that these practices “are not psychotherapy interventions” at all, but rather “forms of stigma” that do vastly more harm than good. They are rooted in bigotry, not science, and have no place in professional psychotherapy.
For all these reasons, the U.S. Court of Appeals for the 10th Circuit upheld Colorado’s ban on conversion therapy last year, joining the 9th Circuit in holding that they comply with the First Amendment. Both courts held that these laws regulate “professional conduct,” imposing only “incidental burdens on speech.” All kinds of medical treatment, they pointed out, involve some measure of speech, but that fact does not automatically implicate constitutional rights. A doctor has no freedom to pretend you’re not having a heart attack when you are, or deny the utility of a pacemaker, or refuse to reveal the true conditions of your arteries—even though all these communications are technically “speech.” And so, the courts held, it follows that a therapist has no fundamental right to “convert” a patient from gay to straight, or trans to cisgender, when doing so is harmful and impossible.
The courts therefore held that “conversion therapy” bans, like other medical speech, are subject to mere rational basis review, not strict scrutiny. And the laws easily survive this lower standard of review given the government’s strong interest in shielding minors from the injuries inflicted by a discredited treatment. The courts also pointed out that these bans exclusively target licensed therapists working in professional settings. A parent, family friend, or religious counselor may still attempt to “convert” an LGBTQ+ minor. So, too, may a professional therapist outside of her practice. These are, in short, licensure laws that hold practitioners to a certain standard. The penalties for violation are accordingly limited to revocation of license and modest administrative fines.
Conservative lawyers have nonetheless launched an assault on these bans, urging the federal judiciary to wade into—and abruptly halt—the robust democratic debate that has produced so much success for LGBTQ+ advocates. They argue that the laws violate therapists’ free speech rights by “censoring” therapists’ ability to convey “certain messages” about sexual orientation and gender identity. They’ve had mixed success: The U.S. Court of Appeals for the 11th Circuit struck down two local bans in 2020. And last term, the Supreme Court narrowly refused to consider the issue, with Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh urging their colleagues to take it up. On Monday, the Supreme Court finally agreed to review Chiles v. Salazar, a challenge to Colorado’s conversion therapy law, which the 10th Circuit upheld. It did so even though the state has never actually enforced the measure against anyone.
There’s little mystery how the court is inclined to rule. In 2018’s NIFLA v. Becerra, these justices struck down a California law requiring “crisis pregnancy centers” to disclose their lack of a medical license to the public. The majority held that these fake clinics—which masquerade as real clinics then evangelize against abortion—have a First Amendment right to conceal from patients their inability to practice actual medicine. In his majority opinion, Thomas pointedly criticized a 9th Circuit decision upholding California’s conversion therapy ban, suggesting it was wrongly decided; he specifically wrote that “professional speech” was not exempt from heightened constitutional scrutiny. His decision had grave implications for all manner of licensure laws that mandate standards across the medical profession.
Then, in 2023’s 303 Creative v. Elenis, the Supreme Court granted an anti-gay website designer an exception from Colorado’s civil rights law, allowing her to discriminate against same-sex couples. The conservative supermajority declared that the First Amendment guarantees every professional, even those working for a profit, the right “to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply ‘misguided.’ ” Once again, the court seemed to be casting doubt on the premise that states could regulate speech by “professionals” by deeming it “conduct.”
The conservative supermajority now seems poised to follow through on the implied threats of NIFLA and 303 Creative and invalidate “conversion therapy” bans. It is difficult to overstate the impact of such a decision: laws in more than half the states—representing years of advocacy, lobbying, and democratic debate—gone in a flash, as well the preemptive condemnation of a proposed federal ban. More than half of LGBTQ+ minors are, today, safeguarded by these laws, thanks to the work of thousands of elected representatives and governors around the country. Soon, six justices may tear their hard-won triumphs to the ground.
Such a ruling would also mark yet another example of the Supreme Court selectively brandishing the Constitution to take sides against blue states in the culture wars. The Supreme Court looks poised to uphold state bans on gender-affirming health care for trans minors. Yet it may now strike down state bans on the attempted conversion of LGBTQ+ youth. And it has already carved a huge loophole in state laws that protect LGBTQ+ people from discrimination. Progressive states, organizations, and individuals are left fighting with one hand tied behind their back, while their opponents enjoy freedom from constitutional restraints. This manifestly unfair situation resembles an asymmetry that the Supreme Court has created in the abortion debate. Crisis pregnancy centers have a right to lie to patients about the phony “care” they provide. Meanwhile, actual doctors may be forced to promote anti-abortion propaganda to patients over their own sincere objections.
When this Supreme Court extols the virtues of democracy, pay attention to which debates it withdraws from the democratic process. To the Republican-appointed justices, questions about a pregnant patient’s life and death must be left to “the people and their elected representatives.” But an anti-LGBTQ+ therapist’s ability to tell a child that they must stop being gay or transgender? That may prove too important to leave to the people. It is clear who gets the benefit of this court’s protection: not those most in need of a constitutional defense against discrimination, but those most eager to enshrine their bias into law.
