Supreme Court Considers Conversion Therapy

The argument before the U.S. Supreme Court on October 7, revisited the days between the 1950s and 1970s when the psychiatric profession considered homosexuality to be a mental disorder. CNN News' headline boldly declared afterwards that the "Supreme Court [was] prepared to rule against conversion therapy ban." But the far-ranging discussion —from suicide and banning pitbulls in parks to speech in support of terrorism and electro-shock therapy— left no clear sense of how the justices might rule, other than their well-established political leanings.

The case before the Court was Chiles v. Salazar (Colorado), asking whether a state law that bans therapists from using conversion therapy on minors violates the First Amendment of therapists. The state law in question was Colorado's Minor Conversion Therapy Law, passed in 2019. The law prohibits a physician or therapist from using conversion therapy on any young person under 18.

The Alliance Defending Freedom challenged the Colorado law's prohibition on "talk therapy," saying a Colorado Springs therapist named Kaley Chiles, who identifies as Christian, wants to administer "talk therapy" to minors who are struggling with their sexual orientation or gender identity. The law, says the Alliance, violates Chiles' First Amendment right to free speech.

Conversion therapy is an umbrella term to describe efforts to change a person's sexual orientation, same-sex sexual activity, or gender identity from LGBTQ+ to heterosexual. Practitioners of such therapy use not only talk but also electroshock therapy and forced vomiting, among other things. Some studies have indicated the treatment often leads the minors to attempt suicide.

On three occasions, the Supreme Court has declined to review similar legal challenges to conversion therapy bans —in California, New Jersey, and Washington State. Some federal appeals courts have ruled, like the Tenth Circuit did in Chiles, that "talk therapy" is "incidental" to conversion therapy. Other circuits have ruled it is protected speech.

In 2018, the Supreme Court ruled against a California law requiring family services clinics to make women aware of how to access abortion services. The NIFLA v. California decision, written by Justice Clarence Thomas, said the requirement plainly violated the First Amendment rights of the clinics that opposed abortions. But the decision also noted that the Supreme Court has "upheld regulations of professional conduct that incidentally burden speech."

This year, it took up the Alliance's challenge to the Colorado ban and the Tenth Circuit U.S. Court of Appeals ruling last year that said Chiles and her attorneys failed to show the Colorado law "lacks neutrality" or that it was targeted at therapists whose religious beliefs oppose homosexuality.

Justice Sonia Sotomayor noted near the top of the hour-plus argument that Chiles was an "unusual case." It was clear, she said, that the law did not have a chilling effect on therapists because —prior to the Alliance pressing its challenge— the Colorado law had not been enforced against any therapists.

"Why do you call that an imminent threat?" asked Sotomayor. Typically, the Supreme Court takes only cases where the threat of enforcement or irreparable harm is imminent.

Alliance Chief Legal Counsel James Patterson said therapist Chiles has "had credible threats of enforcement," though he did not provide details.

Sotomayor told Patterson that studies have shown conversion therapy "does harm to people emotionally and physically."

Many justices seemed to be interested in a question raised by the Trump administration's Deputy Solicitor General Hashim Mooppan, who noted that, before 1973, the medical establishment considered same-sex orientation and behavior to be a mental disorder. Mooppan asked the court to imagine if a state had passed a law prior to 1973 that said therapists could not provide talk therapy to minors who sought to become comfortable with their same-sex feelings or identity.

Mooppan and the Department of Justice submitted a brief in support of the therapist and against the Colorado law. It said the Colorado law was "muzzling one side of an ongoing debate in the mental-health community about how to discuss questions of gender and sexuality with children."

The state of Colorado's brief said the law allows therapists to engage in a wide range of therapies for minors regarding their sexual orientation or gender identity, "including minor patients who do not wish to act on their sexual attractions for religious or any other reasons." The only thing that the law prohibits therapists from doing," said Colorado's brief, "is performing a treatment that seeks the predetermined outcome of changing a minor's sexual orientation or gender identity, because that treatment is unsafe and ineffective."

One particularly interesting brief, in support of the Colorado law, was filed by five parents of children who were given conversion therapy. Two of the five parents said they lost their children to drugs and suicide because of the therapy. Another brief, filed by nine former promoters of conversion therapy, said they "cannot take back the harm they caused, but they recognize their unique obligation and opportunity to prevent future damage by sharing what they learned through decades of failed attempts to change sexual orientation and gender identity." Their brief says conversion therapy is "fundamentally ineffective" and has caused "documented psychological harm, including increased suicide risk...."

Sotomayor suggested the Alliance was really relying on an argument about what level of review should be applied to the Colorado law; the Alliance wanted courts to evaluate the ban on "strict scrutiny," the most challenging one for laws to meet. But that argument, she said, should be decided below, then appealed to the Supreme Court.

Justice Ketanji Brown Jackson seemed to agree, noting that that Supreme Court should "give lower courts a chance to evaluate" what level of review was appropriate.

Even though every reputable medical professional association has discredited the practice of conversion therapy, the Court Tuesday seemed to struggle with the lack of solid clarity about various studies and even how its own precedents might play into this case.

Human Rights Campaign President Kelley Robinson released a statement after argument, saying the Court "must allow states to hold licensed providers accountable to the recommendations of every mainstream medical and mental health association in this country." 

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