On March 31, the Scurrilous Six - plus two others (Sotomayor and Kagan) who demonstrated in a supporting opinion that they utterly missed the reality surrounding the entire matter - but I’ll get to that later…
Anyway, SCOTUS, by 8-1, declared that the state of Colorado cannot ban conversion therapy for LGBTQ+ minors, framing it as a “content-based regulation” of free speech while rather desperately (and largely successfully) avoiding mention of the actual real-world impact that can be expected to arise from this ruling.
Instead, the Supremes devoted an inordinate amount of time to fine-lining a difference between “speech” and “action” in order to declare conversion therapy is the former and not the latter and so is protected speech - even though the Court had long ago recognized that action can be speech(1) and speech can constitute action.(2)
The result is that the Court wound up arguing in pretty much just these words that a state expecting a licensed therapist to treat clients in accord with prevailing standards of care is an offense to the Constitution.
In fact, according to Neil Gore-much, writing for the majority, prevailing standards of care are irrelevant if indeed they exist at all.
Wholly embracing the Department of Injustice’s argument, he cited the fact that homosexuality was once considered an illness to declare that “medical consensus is not static” and may change(3) and so cannot be allowed to impact the speech of a therapist.
But if current best knowledge and practice is not to be the standard the state can expect of a licensed medical practitioner, what is the basis for any regulation? You are left, it would appear, only with regulations that are purely arbitrary (and so even less likely to be “static” because of being based on the prejudices and personal advantage of whoever has power at the moment) or with no regulations at all and anyone, even licensed practitioners, can claim anything(4) provided, that is, their targets are transgender young folks.
The idea of standards, though, raises something else I found deeply offensive in the ruling, which is the tendency of SCOTUS - especially the Scurrilous Six making up the majority of this bunch - to treat standards like modeling clay, to be shaped to whatever form fits the moment and their ideology.
Consider that in the Skrmetti decision, the Court found that Tennessee’s ban on GAC for young trans folks merely “removes one set of diagnoses,” that is, those relating to gender dysphoria, “from the range of treatable conditions,” labeling that drastic restriction on access to health care as legitimate because the state has the power to regulate the practice of medicine.(5)
But here, according to the majority, the state does not have the power to regulate the practice of medicine to remove one method from the range of acceptable therapies - even though, unlike GAC, that therapy, “conversion” or “reparative” therapy, is rejected by every major medical organization as “pseudoscientific,” “discredited,” ineffective, and downright harmful. Put less delicately because I don’t have to be, it’s claptrap and its only effect is to make things worse.
According to the Trevor Project, research shows that “LGBTQ+ youth who experienced conversion therapy are more than twice as likely to attempt suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year” and the experience is “associated with long-lasting social and emotional consequences, including depression, anxiety, suicidality, substance abuse, post-traumatic responses, loss of connection to community, damaged familial relationships, self-blame, guilt, and shame.”
But all of that is irrelevant, unimportant, just collateral damage to be justified on the grounds that, as Gore-much put it, “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”
But the whole damn point of conversion therapy is to enforce orthodoxy! The whole purpose is to enforce orthodoxy! Eagerly embraced by reactionary faux-”Christian” bigots, the whole notion is to turn gay and lesbian minors straight and get transgender children to identify as their birth sex rather than their true gender - in other words, to insure every child is heteronormative without regard to whether they are happy or not, whole or not.
The name itself gives it away: When it’s not called “conversion therapy,” as in “we’re going to convert you,” it’s “reparative therapy,” as in “you’re broken and we’re going to ‘repair’ you.”
Even Kaley Chiles, the therapist at the center of the case, who calls herself “a practicing Christian” who believes that “people flourish when they live consistently with God’s design” gives the game away even as she tries to hide it within carefully-chosen and movement-approved language. In the wake of the decision, she talked about “look[ing] forward to being able to help them when they choose the goal of growing comfortable with their bodies” - that is, becoming cis straight - and about “walking alongside these young people” when in reality she is behind them, consciously pushing them to a pre-determined (by her) conclusion, while (in her mind) bravely refusing “to promot[e] state-approved goals like gender transition, which often leads to harmful drugs and surgeries.”(6)
So how in flaming hell could Kagan and Sotomayor, who we thought would have some grasp of what this decision means, sign on to it?
The simple answer is that they did not grasp what it means, preferring to dwell in some ethereal realm of legal theory instead of the real world and real impacts on real people, rather like looking to use Plato’s perfect forms to deal with the daily physical reality we inhabit.
In the concurring opinion she wrote for herself and Sotomayor, Kagan bizarrely suggested that a complete ban on therapy aimed at a person’s sexual orientation or gender identity might be lawful - that is, the state can ban pseudoscientific, discredited, conversion therapy provided that it denies all youth access to any LGBTQ+-related therapy at all. Which is not only ridiculous on its face, it would effectively ban transition entirely because no one does that without counseling as part of the process. A case of “you really didn’t think this through, did you?”
It gets worse, though, because the real issue with the law, she wrote, is that “the State has suppressed one side of a debate, while aiding the other, [and so] the constitutional issue is straightforward.”
Except this is not a goddam political debate! This is not a philosophical discussion about varying perspectives on some hypothetical situation. This is about scientific fact. This is about the authority of a state government to protect its people from being victimized by bogus treatments, and banning conversion therapy should be no more controversial and with no more impact on the Constitution than banning snake oil.
And the failure of Kagan and Sotomayor to recognize that is and I’m being gentle here profoundly disappointing and bluntly they should be ashamed of themselves.
There was one person who saw the situation for what it was and is and addressed the actual impact and for that reason said “No.”
That was, of course, Ketanji Brown Jackson, who not only dissented, she did so loudly, taking the unusual step of reading her opinion (or maybe a summary of it, it wasn’t clear in the sources I saw) in the courtroom, something traditionally done by a Justice to register just how strongly they disagreed with the ruling.
And it was indeed strong, going after every aspect of the majority opinion, for example calling the conclusion that regulating speech-based medical treatments is unconstitutional(7) because the treatment is being administered solely through speech “maddeningly circular” and “based on happenstance, not logic.”
She also pointed directly to the record of damage caused by conversion therapy and accused the majority of potentially “ushering in an era of unprofessional and unsafe medical care” with some forms of treatment are effectively unregulated.
She concluded by saying that “the correct course of action here is to hold” a line set by precedent: “Speech uttered for purposes of providing medical treatment may be restricted incidentally when the State reasonably regulates the speaker’s provision of medical treatments to patients.
“To do anything else opens a dangerous can of worms. It threatens to impair States’ ability to regulate the provision of medical care in any respect. It extends the Constitution into uncharted territory in an utterly irrational fashion. And it ultimately risks grave harm to Americans’ health and wellbeing.”(8)
That clatter you hear is a mic hitting the floor.
For my own closing statement, I will defer to the National Center for LGBTQ Rights, who note something that at this moment it is vital for all of us, LGBTQ+ folks and allies alike, to remember:
“This case is about how conversion therapy can be regulated NOT whether conversion therapy is safe or legal. No matter how the Supreme Court ruled, conversion therapy will remain malpractice, consumer fraud, and a violation of the ethical standards that govern every licensed mental health professional in this country.”
We can, we should, we must carry it on.
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