Restricting Some Speech For Therapists is a Good Thing, Actually
The Supreme Court’s ruling in Chiles v. Salazar takes the standpoint that therapists should not be restricted in what they be allowed to say to clients, but those restrictions are precisely what keeps clients safe.
by Veronica Esposito
As a therapist licensed by the State of California, I am required to provide a client with a printed copy of the 16-page pamphlet Therapy Never Includes Sexual Behavior whenever anyone discloses a sexual relationship with a therapist to me. This is just one of the many ways that the State restricts or compels my speech as a licensed clinician.
While on the job I also must be careful to remain within my scope of practice, which means that if I give financial or medical advice to my clients, I could end up in big trouble, even though conversations about health and money frequently come up during therapy. If I find out that one of my teen clients has texted a nude photo to a peer, I must immediately report that as child pornography—even if it’s a purely consensual choice between unwitting youth.
Every therapist is extremely aware of these mandates, as we can end up in serious trouble if we do not follow them. So I was rather surprised to see that in the Supreme Court case Chiles v. Salazar, which challenged a Colorado law banning therapists from practicing conversion therapy, a majority of justices seemed to support the view that the government cannot regulate many forms of speech made by counseling professionals. As summarized by Chris Geidner:
Colorado’s effort to justify the law as a traditional licensing law, Gorsuch wrote, doesn’t work. “[W]hatever traditional interest a State may have in ensuring a professional possesses a particular set of qualifications, that interest does not automatically entail a right to dictate a professional’s point of view,” he concluded for the court.
This is complete nonsense for at least two reasons.
First of all, in this case efforts to eliminate conversation therapy do not come down to a mere “point of view.” Numerous pieces of research have shown that the practice of conversion therapy is not only useless, it is incredibly harmful. States certainly have an interest in regulating harmful practices, particularly when they are performed on minors who lack the agency to reject therapeutic treatments that their parents may subject them to. As a professional, there are many forms of “therapy” that I’m legally restricted from practicing, and the debunked, pseudoscientific practice of conversion therapy is among them.
Secondly, the state already prescribes certain viewpoints to me in numerous ways without issue. For instance, for many years California dictated that I report consensual sex acts more likely to be made by LGBTQ+ youth—such as oral and anal sex and object penetration—more stringently than intercourse as possible child abuse. This was clearly imposing a particular viewpoint onto me, as is the current requirement that I do not regard those things as different for the purpose of mandated reporting.
In another piece of regulation, the state dictates that I may not practice therapy on anyone not currently residing within the State of California, even if that person is in acute crisis and desperately needs to talk with me. This is an imposed viewpoint that many clinicians disagree with.
Even though these laws can impose extra burdens onto me and present ethical quandaries, I’m generally glad that they exist—for instance, here is a social worker licensed by the State of California arguing that we should be able to heal our clients by sexually touching them during therapy. I’m extremely glad that state law prevents her from doing that. Would the Supreme Court also declare that her viewpoint shouldn’t be silenced?
These observations are hardly novel. Many therapists have pointed out that it is a common enough occurrence for state regulations to conflict with our ethical duties as therapists, as well as our own personal beliefs about what is most beneficial for clients. Reasonable, intelligent people can, and do, disagree on how helpful these regulations actually are and what to do in a case where an ethical requirement conflicts with speech compelled or restricted by the state. Even though these laws can be problematic, I think most therapists would agree that they are generally beneficial, and that it’s better to have some kinds of protections for our clients than nothing at all.
Unfortunately, this seems to be the world that the Supreme Court is heading us toward. Conflicts such as those I’ve described above are inevitable when a state has the power to license therapists, and it is naive to assert, as Gorsuch and the Supreme Court majority have, that we can resolve them simply by striking down any law that “dictate[s] a professional’s point of view.”
Lastly, the Supreme Court ruling is particularly pernicious because it seems to imply that words don't matter. To my ear, the majority seemed to be saying that as long as we’re not hitting our clients or inappropriately touching them, then it’s all good.
The fact is that words are incredibly important. As therapists, our youth clients regularly look up to us to help them figure out how to best mature into adults. The power that we have over these youth is immense, as is our capacity to harm if we misuse it. Telling kids that their parents will love them more if they suppress their gender dysphoria is a violent act that traumatizes vulnerable children—I’ve seen the lifelong toll that such “mere words” can take on adults. We’re doing more than telling queer kids they’re not okay—we’re lying to them about what the research shows, because gender dysphoria doesn’t just go away if you pretend it isn’t there.
If a therapist tells a child that they can and should try to change their sexuality or gender expression to better please their parents, or to fit into a society that tells them they aren’t wanted as they are, then they are perpetuating a grave harm against these developing human beings. Those words do matter a lot. In implying to the contrary, the Supreme Court has done great harm to queer kids everywhere.
Veronica Esposito (she/her) is a writer and therapist based in the Bay Area. She writes regularly for The Guardian, Xtra Magazine, and KQED, the NPR member station for Northern California, on the arts, mental health, and LGBTQ+ issues.