The US supreme court on Tuesday ruled against a law banning “conversion therapy” for LGBTQ+ children in Colorado, one of about two dozen states that ban the discredited practice.
An 8-1 high court majority sided with a Christian counselor who argued the law banning “conversion therapy” violates the first amendment. The justices agreed that the law raises free speech concerns and sent it back to a lower court to decide if it meets a legal standard that few laws pass.
Neil Gorsuch, the justice writing for the court, said the law “censors speech based on viewpoint”. The first amendment, he wrote, “stands as a shield against any effort to enforce orthodoxy in thought or speech in this country”.
Gorsuch’s opinion drew support from the liberal justices, Elena Kagan and Sonia Sotomayor.
A state could similarly not ban talk therapy designed to affirm a minor’s sexual orientation or gender identity, Kagan wrote. “Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward,” she wrote.
In a solo dissent, Ketanji Brown Jackson, a justice, wrote that states should be free to regulate healthcare, even if that means incidental restrictions on speech. The decision, Jackson wrote, “opens a dangerous can of worms” that “threatens to impair states’ ability to regulate the provision of medical care in any respect.
It is the latest in a line of recent cases in which the justices have backed claims of religious discrimination while taking a skeptical view of LGBTQ+ rights.
Counselor Kaley Chiles, with support from Donald Trump’s Republican administration, said the law wrongly barred her from offering voluntary, faith-based therapy for kids.
Chiles contends her approach is different from conversion practices from decades ago, like shock therapy. Her attorneys argued that the ban makes it hard for parents to find therapists willing to discuss gender identity with kids unless the counseling affirms transition.
“I look forward to being able to help them when they choose the goal of growing comfortable with their bodies,” Chiles said in a statement. “Counselors walking alongside these young people shouldn’t be limited to promoting state-approved goals like gender transition, which often leads to harmful drugs and surgeries.”
Colorado disagreed, saying its law does allow wide-ranging conversations about gender identity and sexual orientation and exempts religious ministries. The state says the measure simply bars using therapy to try to “convert” LGBTQ+ people to heterosexuality or traditional gender expectations, a practice that has been scientifically discredited and linked to serious harm.
The law did not violate the first amendment, Colorado argued, because therapy is different from other types of speech since it is a form of healthcare that the state has a responsibility to regulate.
Advocates for LGBTQ+ people condemned the ruling, as well as “conversion therapy”.
“This is a dangerous practice that has been condemned by every major medical association in the country. Today’s decision does not change the science, and it does not change the fact that conversion therapists who harm patients will still face legal consequences,” Polly Crozier, director of family policy at Glad Law, said in a statement.
The 2019 law carries the possibility of fines and license suspension, but no one has been sanctioned under it. The ruling is expected to eventually make similar laws in other states unenforceable.
Chiles was represented by the Alliance Defending Freedom, a conservative legal organization that has appeared frequently at the court in recent years. The group also represented a Christian website designer who successfully challenged Colorado anti-discrimination law because she did not want to work with same-sex couples.
