Can Conversion Therapy Be Just Speech?
Trans legal experts discuss Chiles v. Salazar, the Supreme Court conversion therapy case.
by Riki Wilchins
Riki Wilchins spoke with George Washington University Law scholar Naomi Schoenbaum, CUNY Political Science professor Paisley Currah, and Albany Law School scholar Ava Ayers on the Supreme Court case, Chiles v. Salazar, which by 8-1 struck down a Colorado law banning inflicting conversion therapy on LGBTQ+ kids, saying it was unconstitutionally restrained free speech.
UPDATE One month after the ruling, the Colorado Senate Judiciary Committee responded by moving forward a law creating a private right for conversion therapy survivors to sue for harm, attempting to circumvent the court’s actions using an approach cribbed from the anti-trans movement, which in recent years has given detransitioners extraordinary rights to sue their providers.
Riki Wilchins: We have research repeatedly linking conversion practices to depression, post-traumatic stress, and suicidality. The American Psychiatric Association and the Psychological Association and the American Academy of Child and Adolescent Psychiatry have all rejected conversion therapy. Ketanji Brown Jackson, the sole dissent, noted it was banned in Colorado because of the medical profession's broad consensus. So this is another instance of the Court finding a way to go anti-science and overrule expert medical opinion right?
Naomi Schoenbaum: Yeah. I mean, I think the Court has been extremely inconsistent in how it's treated these issues. What it’s really dealing with is the reality of harm to kids and in this decision it doesn't seem like the majority is at all concerned about this. Contrast that with a case like Skrmetti where while the Court claimed to be declining to give rigorous review to the Tennessee law that raised state concerns about harm to kids. So in this case, it says First Amendment rights are so important in the contested politics of medical regulation. And then in Skrmetti it says, no, we have to defer to the political branches about these contested medical issues. So to me, one of the biggest things about the series of decisions is how inconsistent the Court is on recognizing individual rights versus deferring to the political branches. The only consistent thread is whatever is anti-trans.
Paisley Currah: Yeah. The inconsistency is so striking. I’m super interested in hearing from Ava, who understands more about how the Court operates, and especially why liberal Justices Sotomayor and Kagan signed on. What's the thinking behind them being part of this?
Ava Ayers: If you look at Sotomayor's decisions she's somebody who cares passionately about LGBTQ+ rights and who's comfortable saying so in language that's quite unusual for a Supreme Court decision. So. So at the very least, I feel confident that they're not signing on because they're part of the Roberts Court's political agenda. They're signing on because they think it's the best thing to do. What I find really interesting about the differences between Jackson, on the one hand, and Sotomayor and Kagan on the other, is that I think the latter are consensus builders who try to keep reaching out the hand, no matter how many times it gets slapped away. And that's not what the Roberts court does from the other side.
And so Kagan and Sotomayor are sort of justices out of time. Jackson lets herself argue in ways that in American judicial culture only conservatives are allowed to argue. When there's a contradiction to be pointed and when prior precedents are blatantly wrong, she doesn’t feel constrained. You can see Sotomayor and Kagan in their decisions here both referring to precedent, which is what a Supreme Court justice is supposed to do.
You lost the last case, but now it's a precedent and you follow it. Jackson, who wasn't on the Court for the precedent case, is happy to just say, Look, that case said there's no special category of professional speech that gets lesser First Amendment protection. So she's not giving up, just like Alito and Thomas don't ever give up. They, they lose a case, so what? They keep making the arguments, right? They don't let themselves get boxed in by precedent, if they think it's wrong.
So my guess is that Sotomayor and Kagan are looking ahead and thinking if we refuse to allow conversion talk therapy bans, we're also preventing bans on gender affirming talk therapy bans.
Riki Wilchins: I’m just struck by the fact the Christian Right and this Court just can’t seem to stop themselves from inserting their biases in between doctors and patients, science be damned. They just can't stay out of the medical room. But none of you picked up on my argument on that, so I’ll let it go.
Paisley Currah: There's this great critical race theory book by Haney Lopez called, uh, White by Law—The Legal Construction of Race. At the beginning of the 20th century, in decisions about who could immigrate to the U.S., it was really kind of devolved around who was white. So the Supreme Court would cite racist science because it backed up what they wanted to believe. And then when anthropology came along with the idea that race was a social construction the science around race kind of fell apart. But this didn’t stop the Court from being racist: it just said, What does Webster's dictionary say race is? They just changed their authorizing narrative to common sense or the dictionary. And I think that's what's happening here.
Riki Wilchins: In treating conversion therapy as protected speech rather than a serious and regulatable clinical intervention, they collapsed the distinction between personal pronouncements and medical ones. Psychotherapy is not this free-floating exchange of ideas, but a regulated intervention where the state has a clear responsibility, especially when minors are involved.
Naomi Schoenbaum: We regulate the content of speech all the time. Would you ban a therapist from saying you shouldn't commit suicide? Would you ban a therapist from saying to an anorexic patient, you shouldn't lose more weight? So as Riki was saying, I definitely see this as in line with failing to respect medical experts and the surge of populist thinking that it doesn’t have to defer to what it views as like the elite. There’s an article called Asymmetric Constitutional Hardball, that says that liberals are much more likely to try to be consistent and follow neutral principles.
Riki Wilchins: So where does this ball stop rolling on it’s just speech? Kids are extremely vulnerable to things a bunch of white coated adults say to them: You're being effeminate. Boys don't do that. This is really powerful stuff when you're talking to a 7- or 8-year-old who's separated from their parents and in some conversion therapy unit or camp alone.
Ava Ayers: Part of the challenge is that this area of law is so inconsistent that the project of constructing principles and following them fell apart long before we got to this case. First Amendment seems to be a particularly bad area even within common law. The Court is making these extremely unconvincing attempts to say that professional licensing is completely different, which demonstrates an astonishing ignorance of how professional licensing works, given that everybody who sits on the Court is a licensed professional. Gorsuch says professional licensing is all about your qualifications: yes, but if you engage in misconduct, we take your license away. If he acknowledged that we de-licensed professionals for misconduct, he would have to acknowledge that this conversion therapy ban is pretty similar to that.
This is an area where I hope as a trans person that bans on gender affirming talk therapy will be struck down under this opinion. It's very clear there won't be a principled basis to not strike them down.
Riki, just to go back to your point about science, I think this is one of a number of areas where the Court is happy to use science when it thinks it offers support.
Riki Wilchins: Right. And then you see them flatly ignoring science in abortion cases, and in trans rights cases where scientists are trying to tell them what trans people are, and how being trans works. And I suspect that philosophers of language will be jumping out of windows every time a new First Amendment case comes down, because of the Court’s effort here to distinguish speech from conduct is so bizarre, right? Philosophers have been working for 3,000 years without coming up with a compelling answer.
The Supreme Court says, Oh well, therapy is clearly speech that you're regulating, Not in my experience of therapy. I don't think the things that I talk about in therapy with my therapist are pure speech. But I don't have a principled way to distinguish whether it is or not either, you know? So my criticism of the Court is not that they've failed to come up with a persuasive definition of speech. I'm not sure there is one. It's that they failed to think honestly about the consequences of their argument.
This reminds me of Butler’s work around gender performativity and Speech Act Theory in which some kinds of speech are acts, such as I now pronounce you husband and wife or You’re under arrest and of course It’s a girl. But the court has tried to say that speech is just talk. Despite this ruling, conversion therapy still remains malpractice and a violation of ethical standards that licensed mental health professional. On the other hand, I want to push back on that a bit as a non-lawyer and say that while professional groups can still govern licensing and ethics in Colorado and other states, their powers to do so seem weaker now than they did before this decision. This ruling also seems to weaken states’ ability to make sure that their professional licensing provisions closely track professional standards of care.
No one is saying anything. Have I awed you all into submission, or was that just complete legal gibberish?
Naomi Schoenbaum: No, it's a great question.
Paisley Currah: No, I don't want to detract from that question but I have a different one. So go ahead Ava.
Ava Ayers: It is important to be clear on what the decision does and doesn't do. It's still possible to argue that conversion therapy can be prohibited because of the compelling state interests and the ban being narrowly tailored. So we will have more litigation on that. I don't know how likely it is that that will prevail, but even this challenge is not yet dead. Even this statute is not yet dead. And then you do have state licensing authorities and civil lawsuits as ways of challenging therapists who try to engage in this awful, awful practice.
However, state licensing authorities can be very timid about wading into areas of political sensitivity. It's kind of astonishing how few successful professional enforcement actions we've seen against Trump administration lawyers who have been blatantly violating every ethical norm the profession has in the front pages and yet very few have been disbarred. And when enforcement actions are brought, they tend to be for mundane empirically demonstrable things like you held on to a client's money and you kept it in your personal account. State licensing authorities are not equipped to engage in the kind of 20-lawyer litigation that is going to come up when you challenge the anti-trans movement where your staff of three is going to be facing everybody that the Alliance Defending Freedom and their donors can throw at you. While really limits those actions in an unfortunate way.
Riki Wilchins: There’s also tort law, but for that to be an alternative backstop, the challenge is that you have to experience harm. And that’s going to be after the fact, so it’s not going to prevent conversion therapy in the same way.
As Ava said, what's important to note is that this did not strike down the law. It said strict scrutiny applies. So it'll be left to the lower courts to figure that out and to see how much they rely on the science.
Paisley Currah: One thing I understand is that people in Colorado are already working on amending their law to make it viewpoint neutral. So a therapist wouldn’t be able to press someone to be gay, just like they couldn’t press them to be straight.
One thing I wanted to touch on is that the Court keeps talking about the marketplace of ideas? But we live in a time when billionaires own all the social media and have convinced huge swaths of the American public that vaccines will kill them. So the notion of a free marketplace of ideas has always been problematic, but I don't think it's ever been such a problematic metaphor for public policy-making like it is now. I just found that shocking. I really like Jackson. I just love all her stuff. I read her stuff first, maybe the only thing I really read. And she says the marketplace of ideas doesn't enter into it here: this is therapy.
Riki Wilchins: Kagan called Chiles a “textbook case” of viewpoint discrimination. But to me, we're talking about apples and oranges. On one hand, conversion therapy is an active, deliberate attempt to make someone straight or cisgender. In my experience, there is no corollary on the other side where therapists engage in active, deliberate attempts to make someone gay or trans. In fact, I suspect we would have had an entirely different outcome if this had been a case in which a therapist was trying to make a cis kid trans. So while the Court has treated conversion therapy and affirming care as equal, to me it’s apples and oranges. In fact, what is usually called affirmative therapy really amounts to little more than simple respect in using a patient’s name, pronouns, and gender. It’s not any kind of deliberate attempt to change anything. So, to me, Kagan’s opinion made no sense.
To me, the more important perspective is the one that we have all been raising, which is that this isn't really about a marketplace of ideas where we should be concerned about content and viewpoint neutrality, but this case is of a piece with commonplace, long standing regulation of professions where it is okay for the state to put its thumb on the scale in favor of competence and in favor of harm reduction. In the context of medical regulation and professional regulation, there are certain viewpoints that it's okay for the state to hold. If this weren't about protecting gay kids and trans kids, the Court almost certainly would not have subjected this law to strict scrutiny, right? If it was about preventing suicide or anorexia, probably the Court would have taken a different approach.
Ava Ayers: If you read Gorsuch's opinion, he says that for a gay client, Miss Chiles may express acceptance, support and understanding, but if that gay or transgender client seeks her counsel to change their sexual orientation or gender identity, Miss Childes cannot provide it. But those are deeds, not viewpoints. And Riki, I react the same way you do to this, which is there's just this slipperiness to the Court's analysis where it's very hard to get hold of in a way that you could predict where it will go in future cases.
Riki Wilchins: I also feel like this is of a piece with the right’s ongoing effort to recast trans denialism as a matter of free speech or freedom of viewpoint. Also, the Court keeps talking about consenting clients. But these are kids being pushed into conversion therapy by parents, not adult clients saying I want to go back to being cisgender or straight. I didn't understand why it didn't draw a response from the three liberal justices.
Ava Ayers: When you have rights and protections, they can always be exploited, right? There's no set of protections you can construct that somebody can't drive something terrible through. So it’s inevitable that the idea of free speech comes into conflict with wanting to protect people from verbal bigotry and discrimination. People are going to draw those lines in somewhat different places, but we have a right to expect the Court to draw them in principled ways that bear in mind the consequences to people. I'm really happy to hear what Paisley said about trying to redraft this law because I think the trans movement loses nothing by prohibiting the “transing” of kids.
Riki Wilchins: This was also another white evangelical Christian in front of the Court. I don't think there was any place in the opinions where religious freedom to voice these anti-trans views was mentioned specifically, but I did feel like that was lurking behind the Court’s over-reliance on viewpoint discrimination. Okay—so let the record show everyone is nodding along enthusiastically.
Ava Ayers: Maybe that’s a good thing for the Colorado folks to write into the next version of their statute and see if the Court is a little more friendly when it says you're not allowed to try to change someone's religion.
Paisley Currah: There was this memo from Pam Bondi, who's no longer the Attorney General which talked about how anyone who holds extreme views on mass migration, radical gender ideology, anti-Americanism, or anti-capitalism could be investigated as a domestic terrorist. So it'll be interesting to see, like when these First Amendment cases float up to the Supreme Court, what they do and if they’re consistent.
Riki Wilchins: Yeah, those would seem to be cases of viewpoint discrimination and state restriction on the “marketplace of ideas” to which this Court would be sympathetic.
Thank you all for joining us today.
Riki Wilchins writes on trans theory and politics at: www.medium.com\@rikiwilchins. Her two last books are: BAD INK: How the NYTimes SOLD OUT Transgender Teens, and Healing the Broken Places: Transgender People Speak Out About Addiction & Recovery. She can be reached at TransTeensMatter@gmail.com.