On Tuesday, the Supreme Court deviated from its disturbing trend of rendering decisions without oral arguments or clear explanations, as it took up a crucial case regarding the legality of banning “conversion therapy” — a discredited practice aimed at changing an individual’s sexual orientation or gender identity. This case, Chiles v. Salazar, represents a significant moment in the ongoing battle for LGBTQ+ rights and the intersection of medical ethics and religious beliefs.
Currently, around half of U.S. states have laws prohibiting conversion therapy for minors, including Colorado, which is the focus of the Court’s scrutiny. Given the current 6-3 Republican supermajority, it was all but certain that the Court would favor religious conservatives over the well-being of queer Americans, as it has consistently done in previous cases.
The crux of this case raises important questions. Will the Supreme Court outright strike down Colorado’s ban, or will it defer to lower courts to apply a stringent test — known as “strict scrutiny”— which most laws fail? However, the more pressing issue at stake is the extent to which the Court will undermine the authority of state governments to regulate healthcare practices, especially when such practices pose clear risks to vulnerable populations.
At the heart of Chiles lies a clash of First Amendment interpretations. The plaintiff, a therapist backed by the anti-LGBTQ law firm Alliance Defending Freedom, argues for unfettered freedom to explore gender and identity issues, including the option of “changing” a patient’s identity. Her attorney, James Campbell, contends that since talk therapy involves communication, it is protected speech, thus Colorado should not be able to restrict conversion therapy.
Conversely, Colorado argues that states have a longstanding obligation to regulate the conduct of licensed professionals, similar to how lawyers cannot advise clients to commit crimes or how doctors are held to standards that prevent them from giving harmful medical advice. Colorado’s stance is that the First Amendment allows for the regulation of professional-client speech to ensure it adheres to accepted standards of care.
The state’s position is further bolstered by the overwhelming consensus within the medical community, where every major health organization opposes conversion therapy, labeling it harmful. Yet, the justices, particularly the six Republican appointees, appeared skeptical of this argument. A concerning attitude emerged during oral arguments, where some justices seemed to question whether medical expertise is a valid foundation for legal standards at all.
Justice Samuel Alito drew an infamous parallel between Colorado’s ban and Virginia’s historical eugenics laws, questioning whether medical consensus is sometimes “politicized.” This comparison is not just incorrect but dangerously misleading; while eugenics involved state-sanctioned sterilization of individuals deemed “feeble-minded,” Colorado’s law seeks to protect individuals from a harmful practice widely recognized as abusive by mental health professionals.
Justice Neil Gorsuch further complicated the discourse by recalling that homosexuality was once classified as a disorder by the mental health profession. He questioned whether, under Colorado’s proposed standards, states could have justified banning affirmation of gay identities in the past. While it’s true that experts can err, this reasoning leads to the dangerous conclusion that we should disregard the guidance of trained professionals in favor of unqualified opinions.
One of the primary roles of professional regulation is to ensure that licensed individuals adhere to a standard of care that protects clients from harm. Just as malpractice laws hold professionals accountable for poor advice, so too should the state be allowed to regulate harmful practices like conversion therapy. The historical context is critical here; the mental health community has evolved significantly in its understanding of sexual orientation, and we are now at a point where the consensus is clear: conversion therapy is harmful.
Furthermore, Justice Amy Coney Barrett seemed to recognize the validity of Colorado’s malpractice laws, though Gorsuch attempted to differentiate between these laws and the proposed ban on conversion therapy by labeling it a “prior restraint” on speech. However, this argument falls flat when considering that Colorado’s law only activates if a complaint is made and follows procedures similar to malpractice suits.
The potential outcomes of this case are troubling. The Court may narrow its ruling by striking down conversion therapy bans while still allowing for malpractice lawsuits against therapists who inflict harm. This could lead to a dangerous precedent — one that limits states’ ability to regulate professional conduct, allowing unqualified individuals to dispense harmful advice without fear of accountability.
There was also discussion among the justices about whether to allow lower courts another opportunity to evaluate Colorado’s law before rendering a decision. Typically, the Supreme Court remands cases when establishing new legal principles, and a majority of justices appeared poised to impose a new standard requiring strict scrutiny for conversion therapy bans. This is a high bar for states to meet, demanding they prove a compelling interest in regulating professional conduct.
However, only Barrett seemed amenable to allowing Colorado a chance to present more evidence, while others appeared ready to dismiss the law outright. The risk here is immense; a poorly crafted ruling could have far-reaching implications, potentially stripping states of their power to regulate healthcare and leaving vulnerable individuals exposed to harmful practices.
In essence, the Supreme Court’s engagement with this case reflects larger societal struggles over the rights and recognition of LGBTQ+ individuals. The justices must not only contend with the legality of conversion therapy but must also grapple with the fundamental question of whether medical expertise holds any value in shaping public policy. As this case unfolds, the stakes for social justice, equality, and accountability in healthcare are alarmingly high. This is not just about conversion therapy; it is about the rights of individuals to access care that affirms their identities and protects their well-being.
This article highlights the importance of Court’s Dangerous Doubts.
