SCOTUS to Consider Whether State Bans on "Conversion Therapy" Violate the First Amendment

A highly significant grant of certiorari for next term.

This morning, the Supreme Court granted certiorari in Chiles v. Salazar, a First Amendment challenge to a Colorado law that prohibits so-called "conversion therapy" for minors. At issue is whether this is a permissible regulation of professional conduct or a viewpoint-based restriction on speech (with potential religious liberty implications as well). This will almost certainly be one of the most watched (and potentially most controversial) cases of next term.

Here is the question presented from the petition for certiorari:

Kaley Chiles is a licensed counselor who helps people by talking with them. A practicing Christian, Chiles believes that people flourish when they live consistently with God's design, including their biological sex. Many of her clients seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires. But  Colorado bans these consensual conversations based on the viewpoints they express. Its content- and viewpoint-based Counseling Restriction prohibits counseling conversations with minors that might encourage them to change their "sexual orientation or gender identity, including efforts to change behaviors or gender expressions," while allowing conversations that provide "[a]cceptance, support, and understanding for…identity exploration and development, including…[a]ssistance to a person undergoing gender transition." Colo. Rev. Stat. § 12-245-202(3.5).

The Tenth Circuit upheld this ban as a regulation of Chiles's conduct, not speech. In doing so, the court deepened a circuit split between the Eleventh and Third Circuits, which do not treat counseling conversations as conduct, and the Ninth Circuit, which does.

The question presented is:

Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech  Clause.

Comments

[Joe_dallas]

Conversion therapy doesnt work (except perhaps in very rare occasions). Fortunately it doesnt cause the permanent harm that chemical and surgical mutilation causes.

[DaveM]

I am a convert to Christianity. In fact, every Christian is a convert. There's no question that religious conversions "work" in the sense that they can lead to life-long changes for the better, using any metric you choose. I would imagine they would be particularly helpful to someone confused about whether they have been "born in the wrong body". At heart, that is essentially a religious question: did God make a mistake in creating me?

[JoeFromtheBronx]

Or, did God not make a mistake, but created someone who warrants some sort of medical care or other treatment? God didn't necessarily make a mistake if someone needed surgery to fix a heart valve or something. God works in mysterious ways, and all that, & maybe the whole process has a purpose.

[M L]

I would imagine they would be particularly helpful to someone confused about whether they have been "born in the wrong body". At heart, that is essentially a religious question: did God make a mistake in creating me?

Agreed. Also the question: In what sense, if any, am "I" a distinct thing from my body? This notion of being born in the wrong body asserts a dualistic view of sharp separation between the spiritual and physical realms; trans ideology is a form of gnosticism.

[John 4]

Is this what eyeglass wearing folks are thinking too? I can’t wear glasses or else I’m saying God made a mistake?

[A Japanese Student]

I don't think that is always the case.

You can harm someone through inaction. If someone has a cancer, sending them to a (useless) counseling would only make it progress more. Cancer treatment also comes with significant (and sometimes permanent) side effects. In this case, the "permanent harm" is (at least according to them) puberty - voice dropping, breast developing, and the like. Counseling does not delay puberty.

The course of treatment offered by physicians is pretty much like the equitable relief courts provide. Puberty blocker is the equivalent of preliminary injunction; after some time, they can (though not always) proceed to permanent injunction (hormone therapy or surgery).

This is likely irrelevant to the present constitutional analysis, but it is an important background.

[Brett Bellmore]

"Puberty blocker is the equivalent of preliminary injunction; after some time, they can (though not always) proceed to permanent injunction (hormone therapy or surgery)."

Perhaps not the best analogy, in as much as puberty blockers have proven to have irreversible effects if continued beyond the normal time frame for puberty to happen in. Thus effectively preventing a normal puberty from ever happening.

But, on second thought, maybe that actually does make this a good analogy, since the same can be said of some recent "T"RO's.

[MollyGodiva]

It inflict mental trauma.

[damikesc]

Why is gay conversion therapy bad while tran "treatments" are not?

[JasonT20]

Why is gay conversion therapy bad while tran "treatments" are not?

Hmm, one is pure religious dogma, not backed by even an attempt to justify it with research, masquerading as psychotherapy.

Oh, I'm sure you'll make the same claims about gender-affirming care, but that is why I think it is a good thing that it isn't up to you.

That said, if religious people want to counsel and minister to gay people to try and pray away their gayness, that is their business and the business of the people they minister to. But I do not support giving a religious exception that would allow them to do that as licensed mental health professionals.

[Joe_dallas]

JasonT20 17 minutes ago
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Mute User
Why is gay conversion therapy bad while tran "treatments" are not?

"Hmm, one is pure religious dogma, not backed by even an attempt to justify it with research, masquerading as psychotherapy."

Jasont
That is also an accurate description of the "medical science" in support of "trans " medical treatment.
One is bad, the other horrific.

[damikesc]

You just described trans "Therapy" to the letter.

And it VERY much is a religion.

[JasonT20]

You and Joe both just skipped right over how I anticipated your argument there, didn't you.

[Lee Moore]

Which was fair enough since your "anticipation" consisted of announcing in advance that you were going to ignore contrary arguments !

[JasonT20]

I wasn't announcing that "in advance" that I wouldn't consider "contrary arguments" made in the future. I was intending to say that I've been hearing exactly that argument for years, and I have rejected it because of the lack of seriousness in the argument.

To make it plainer:

Gender-affirming care has research behind it. Whether you accept that it is valid research or not, it is subjected to scientific study that would either support it or disprove it. The research is out there for you to evaluate if you feel like it.

Conversion therapy is based on religious ideas of what is right and natural human behavior, not scientific observation or clinical practice. From the writ submitted by the plaintiffs:

Kaley Chiles is a licensed counselor who helps people by talking with them. A practicing Christian, Chiles believes that people flourish when they live consistently with God’s design, including their biological sex. Many of her clients seek her counsel
precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires.

Advocates for conversion therapy do not subject it to scientific scrutiny. They do not seek to determine whether it is true through falsification. That is dogma.

They are not the same, and I am not going to pretend that you repeating the falsehood that they are is somehow a new argument that I am obligated to engage.

[Joe_dallas]

JasonT states - "Gender-affirming care has research behind it. Whether you accept that it is valid research or not, it is subjected to scientific study that would either support it or disprove it. The research is out there for you to evaluate if you feel like it."

Gender affirming care has shoddy agenda driven research behind it .

[JasonT20]

And your opinion on that does what to refute any of my points?

[A Japanese Student]

The underlying constitutional question is not necessarily ideological. See e.g. Planned Parenthood v. Labrador (CA9 2024) (affirming preliminary injunction against law banning out-of-state abortion referral on Free Speech Clause grounds); Brandt v. Griffin (E.D. Ark. 2023) (finding unconstitutional Arkansas law prohibiting referral for gender-affirming care; appeal (en banc) pending)

Though, if the Court invalidated this and not the law at issue in Skrmetti, it could hardly avoid being seen as a ideological panel against transgender people's lives.

[Martinned2]

Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.

If the answer is that it violates the Free Speech Clause, presumably that means all regulation of psychological care is unconstitutional?

[Rossami]

No, just regulation of the subset of psychological care that is purely verbal counseling. "Psychological care" can (and usually does) include a great deal more than that.

[JasonT20]

Uh, you do know the difference between a psychiatrist and a psychologist and other therapists that aren't licensed to write prescriptions or treat physical ailments of any kind, don't you?

[ReaderY]

1. I think the Court should revive the professional speech category rather than force this into a speech/conduct binary. I don’t think it fits that binary.

2. For talk therapy, I think a state can impose rules on professional speech as a condition for being a licensed therapists, just as it can impose rules and conditions as conditions for getting an accredited degree. I don’t see a meaningful difference between the two cases.

After all, it’s well established that if you turn in a story about your dog instead of your math homework, the state can deprive you of your degree despite the fact that you have a first amendment right to talk about your dog. You just can’t do so in the context of a school assignment. I see the situation as similar. Moreover, writing about your dog is clearly speech, not conduct. Trying to characterize it as conduct to explain why a state-school math class doesn’t have to accept it strikes me as silly.

3. Nonetheless, the state cannot prohibit the speech itself as long as people do not claim to be speaking as licensed professionals or seek the benefits, like insurance coverage, of licensed status.

I think this provides a reasonable and constitutionally sound balance between the state’s power to regulate licensed professions and individuals’ free speech rights.

[ducksalad]

I would be more pointed on (3), and clarify that the only thing banned is claiming to be licensed or have met the state's standards for licensing when you haven't. The following should be allowed and protected: giving the therapy, advertising the therapy, charging money for the therapy, and accepting third-party payments from any private insurers or other organizations that are willing to pay for the therapy, as long as they are fully informed.

[Roger S]

The state here is using its license authority to advance a political ideology. It is like saying only Democrats can have a license.

[ReaderY]

Well, when the state says you have to regurgitate that 2+2=4 to pass math class, isn’t that also advancing a political ideology? Numerous aspects of nedicine, psychiatry, and psychology have rested on questionable foundations, been opposed, or have changed over time. Yet the state has the power to license. I don’t think it’s the role of courts to decide what is “political ideology” and what is “really so.”

Half a century ago, the state had the right to require that licensed psychologists diagnose homosexuality as a disorder. That was also a legitimate exercise of the state’s licensing power, and courts had no right to strike that down as “political ideology” either. The fact that opinions can change over time or can be subject to disagreements is not, as I see it, the courts’ business to police.

[y81]

The licensing process can only regulate speech if it is shown to be narrowly tailored to advance important government interests. Requiring math homework to be about math meets that test rather easily. So does requiring lawyers to know the Statute of Frauds. Prescribing the content of talk therapy will have a much harder time. Offhand, I can't see any government interest at all.

[JasonT20]

Prescribing the content of talk therapy will have a much harder time. Offhand, I can't see any government interest at all.

There is research into what makes for effective talk therapy, and presumably licensed therapists need to demonstrate knowledge and understanding of those clinical practices. The government interest in whether therapists meet professional standards is so that patients have some trust that the people they are seeing know what they are doing. That is no different than the government interest in licensing professionals in any health field.

[Lee Moore]

The difficulty for Colorado in your (very reasonable) scheme is that there is nothing to prevent Texas granting licenses to therapists everywhere. Thus the Colorado therapist is only restricted from advertising herself as “licensed by the state of Colorado.”

Merely claiming to be “licensed” or “licensed in 12 states” or whatever is fine.

Incidentally how does that full faith and credit thing work with licensing ? Presumably poorly, but why ?

[JasonT20]

Incidentally how does that full faith and credit thing work with licensing ? Presumably poorly, but why ?

I don't know much about the "full faith and credit" clause, other that what I just read online, but it seems to focus more on the judgements of courts in different states, as opposed to things like licenses. Furthermore, it seems to be up to Congress to make things uniform, otherwise, different states are given more leeway to do their own thing. It seems to be a very unsettled and rarely used part of the Constitution.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

[Joe_dallas]

fwiw - most states for most professions (legal accounting, engineering medicine, dentist etc) , have provisions that you have to be licensed in that state in order to practice in that state.

[Lee Moore]

Sure, but the point of the lawsuit (and Reader Y's analysis) is that prohibiting speech is unconstitutional, whether by prohibiting the speech directly, or by prohibiting it indirectly, by requiring a license to speak, which is refused for speaking the wrong sort of speech.

Thus to the extent that your "practice" consists of speech, the government cannot prevent you from practising, whether by its licensing regime or otherwise.

[DaveM]

Roping the State into the conversations between consenting adults is a category error. Just as there is no right answer to a bad question ("Have you stopped beating your wife?"), there is no right way for the State to regulate what only takes place and thus can only be regulated by the individuals directly involved.

THIS is how we wind up with the wet blanket of the Administrative state. This is not the job of governments, including the courts.

And no, saying such regulations are permissible under cover of setting professional standards doesn't fix their infirmity. The problem is categorical.

[JoeFromtheBronx]

Okay. First, to quote the opening sentence:

This morning, the Supreme Court granted certiorari in Chiles v. Salazar, a First Amendment challenge to a Colorado law that prohibits so-called "conversion therapy" for minors.

Minors.

Second, how far does this "conversations between consenting adults" principle go? For instance, basic contract law involves the regulation of conversations between consenting adults.

Third, if your concern is "private" individuals, regulating license holders (by definition, not purely private) seems separate.

[DaveM]

Nice catch on this specific issue being concerned with speech involving minors. That is a separate category altogether, you're quite right.

I'm not following you on your second point, that contract law involves regulation of conversations. Can you give me an example of what you mean by "conversation"?

My reference to "private" here is meant only to distinguish it from the State. These conversations are only between individuals, and the State is not privy to them. The State cannot therefore "regulate" them in any meaningful way. What the State cannot see, the State cannot weigh.

[JoeFromtheBronx]

I'm not following you on your second point, that contract law involves regulation of conversations. Can you give me an example of what you mean by "conversation"?

People buy and sell products and services verbally on a regular basis. They talk about them without necessarily writing things down. For instance, doing yard work.

Such things are regulated by the government in various respects.

These conversations are only between individuals, and the State is not privy to them

The government provides rules for various things that they regularly don't see. Something that happens in a doctor's office is going to be regulated by the state even if the government cannot see it. If a problem arises, the patient, however, can for instance complain to the proper authority or sue.

[DaveM]

Thanks. The kind of "regulating" of speech at issue here is literally dictating the very words that can and cannot be said. That's too far removed from your example of a verbal agreement to do work, I think. But it is interesting.

As to the government regulating what it cannot itself inspect, as you note the State can only act if a party to the conversation breaks confidence and makes public something it learned only in private. Aside from the problems of learning the truth of their report, there's the simple expedient that the accused can simply say they were misunderstood. The remedy for that is some kind of recording of the private conversation, which adds even more difficulties.

There are a multitude of reasons why the State must limit its regulatory scope to public matters, and why its records must be public records, its courts held in public, and so on.

This apparently doesn't stop our modern administrative state from forging ahead anyway, and acting as if it can actually control private matters. But all this does is add to our burdens, it doesn't actually do anyone any good, for the reasons stated.

[JoeFromtheBronx]

A loaded question presented. Do informed consent laws "censor" people by disallowing certain ways of speaking to patients?

The reference to her Christianity leads to possible confusion. The government is allowed to regulate medicine in many ways, even if someone thinks God commands something else.

The law involves minors, which lessens the "consensual" nature of this therapy. Medicine licensing can include banning things that cause harm, including if it's verbal. A carte blanche rule to how licensed therapists can practice talk therapy with minors, which can be physically and mentally harmful, is dangerous.

[A Woman of No Importance]

This, to me, is a simple question. It does not violate my First Amendment rights if I am forbidden to tell cancer patients that if they will drink my snake oil it will cure their cancer. Since conversion therapy works just about as well as snake oil does for cancer, I really don't see a difference. Is someone really making the claim that states are powerless to protect consumers from quacks? Wouldn't that argument essentially make all fraud into a constitutional right?

[David Nieporent]

It does not violate my First Amendment rights if I am forbidden to tell cancer patients that if they will drink my snake oil it will cure their cancer.

Fraud is a recognized, long-established exception to the 1A. But if you just post repeatedly on twitter the generic claim that snake oil cures cancer, you would be the next Secretary of HHS. And also, it would violate your 1A rights for the government to punish you for posting that.

[A Woman of No Importance]

I don't think we're in disagreement. I don't think I can be punished for saying that snake oil causes cancer, or that conversion therapy makes gay people straight. However, if I open a practice in which I tell patients that I can cure their cancer, or their homosexuality, all for a fee of course, then that's fraud. And I don't think the state law at issue goes further than that.

[damikesc]

" Since conversion therapy works just about as well as snake oil does for cancer, I really don't see a difference."

Tran treatments are equally as effective. I assume you oppose those.

[DixieTune]

Yet you have no issue with doctors promising that they'll make children feel like they belong in their bodies by cutting off their schlongs.

Why is that not snake oil?

[A Woman of No Importance]

When did I say I had no issue with doctors promising they'll make children feel like they belong in their bodies by cutting off their schlongs? Please do not impute to me arguments I haven't made.

Thank you.

[ElrondPA]

The fact is that 80-90% of children with gender dysphoria, if not put on hormones, will eventually reconcile with the reality of their sex (a large percentage of them conclude that they are gay, rather than opposite gender). That's hardly the same as snake oil. The quacks are those who ignore comorbidities while fast-tracking children to hormones and surgeries, telling them that going trans will solve their psychological problems. The state of Colorado is hijacking therapy at the behest of activists whose claims are being thoroughly debunked by careful scientific studies, including but not limited to the Cass report.

[JasonT20]

The fact is that 80-90% of children with gender dysphoria, if not put on hormones, will eventually reconcile with the reality of their sex (a large percentage of them conclude that they are gay, rather than opposite gender).

Citation needed.

[Joe_dallas]

https://www.washingtontimes.com/news/2024/apr/8/most-kids-grow-out-gender-confusion-long-term-dutc/

Citation needed? Really

Quite of few studies on the subject

[JasonT20]

I didn't have time to read the whole thing, but maybe you will. This study doesn't back up what you claimed. And by the way, I'm linking the actual research, not an article from The Washington Times.

https://link.springer.com/article/10.1007/s10508-024-02817-5

[Michael Ejercito]

So states can ban gender-affirming care after all?

[A Woman of No Importance]

By the way, I once saw a hilarious talk show in which a pastor and a gay activist were discussing conversion therapy. The gay activist asked the pastor, If I go through conversion therapy, would you let me take your adolescent son on a weekend camping trip? The pastor replied hell no. The activist responded, "OK, so we've established that you don't think it works either."

[Frank Drackman]

Never got diddled but I never trusted any of the Adults who went on our Boy Scout camping trips

[ConservativeProfessor]

Now try that with a recovering alcoholic and replace the kid with a bottle of booze. (Yeah, it doesn't actually work, does it?).

Recognizing one's weaknesses, whether it's for sodomy or whiskey, and trying to master them by cultivating temperance is a lifelong project.

"Conversion" never ends until your life ends. If you knew anything about religion, chastity, and virtue you would have not thought the quip you heard on TV was clever. It was superficial and juvenile, borne of ignorance and a need for the guest's penchant for sodomy to be affirmed by others.

[Roger S]

That's right. The same logic would ban all treatments for addiction, as they all have a poor success rate.

[Brett Bellmore]

Well, at least I think they'd established that the pastor didn't think the activist was the sort of person who'd let it work even if it could.

And, let's be frank: There's no reason to suppose that conversion therapy can't work at least SOME of the time. It's an open question how much of the time that is, but it's a question such advocates don't want to risk answering.

[A Woman of No Importance]

Well, Brett, how hard would you have to work to convert to gay? And why would you assume it would be any easier in the opposite direction? And furthermore, if you wouldn't want to, why should gay people?

I'm not going to rule out the possibility that it might have worked for someone somewhere on at least one occasion. But I'm not sure that's the standard for whether a treatment can be considered successful.

[damikesc]

Why do you assume it would be EASIER to go from male to female or vice versa?

[A Woman of No Importance]

What on earth did I say that would make you assume that? If your claim is that *I* think it's easier to go from male to female or vice versa, you are mistaken. That is not my position.

[Roger S]

The treatment works as well as many other treatments that are approved.

[Brett Bellmore]

At least some fraction of people we're talking about are reasonably defined as 'gender-fluid', which is to say that they're not hard committed to a particular gender, but instead are susceptible to outside influences. I suppose that's as true of straights as gays, of course.

[Roger S]

All children are susceptible to outside influences.

[A Woman of No Importance]

And that's fine, but why assume that they'll be happier straight? Probably some will and some won't.

I actually would not have an issue with conversion attempts so long as there is no assumption that one result is preferable to another. People should strive to be whatever makes them happy, and it's no business of anyone else's.

[Roger S]

Straights are happier than homosexuals. Whether you agree with that or not, parents have a responsibility to help their kids, and they are not restricted by your opinion of happiness.

[A Woman of No Importance]

I would like to see some actual data that straights are happier than gays before I take your word for it. (Though of course finding an objective way to measure happiness would be difficult.)

[Lee Moore]

Google suicide rates for gays and straights. Gays are something like 2 or 3 to 1 ahead.

Which does not prove that gay folk are inherently more suicidally unhappy than straight folk. It may simply be that society is beastlier to the former than the latter.

(Incidentally, males commit suicide 2-4 times as often as females. But females attempt suicide 2-4 times more often than males. Yet another field demonstrating superior male competence 🙂 )

[A Woman of No Importance]

While we're googling, you should google "logical fallacy of undistributed middle" since that's what your argument consists of.

[Joe_dallas]

In particular, gay and bisexual men were 3.0 times more likely to meet criteria for major depression and 4.7 times more likely to meet criteria for a panic disorder than were heterosexual men

https://pmc.ncbi.nlm.nih.gov/articles/PMC4197971/#:~:text=Twelve%2DMonth%20Prevalences%20of%20Mental%20Health%20Disorders&text=In%20particular%2C%20gay%20and%20bisexual,disorder%20than%20were%20heterosexual%20men.

[Lee Moore]

"undistributed middle ?" 🙂

You think Roger was claiming that all gay folk are unhappier than all straight folk ?

My reply confirms that amongst those unhappy enough to kill themselves, gays are overrepresented. Joe's link confirms that the same holds for major depression and panic disorder.

Your task - should you decide to accept it - is to find evidence that amongst the remainder - ie folk not unhappy enough to kill themselves, suffer major depression or suffer from panic disorder - gay folk are genuinely "gay" enough to make good the deficit in cheerfulness displayed by the not very gay gay folk previously identified - so as to bring the average level of unhappiness to even steven. Good luck with that.

Meanwhile put the damn telescope up to your other eye !

[y81]

Shouldn't the broad-mindedness exist at a higher level, i.e., talk therapists are permitted to counsel minors to become gay or to become straight, as long as they disclose the purpose of their therapy. Then parents like No Importance can choose whatever therapy they think is right for their children.

[A Woman of No Importance]

To a point. I go back to my original statement that conversion therapy is largely snake oil that doesn't work, so the question is how much snake oil are parents permitted to pour down their children's throats.

That said, parents have a lot of latitude to make choices that will damage their children, and I generally do not support government micromanagement of parenting decisions. I would not, i.e., agree that it is child abuse to raise children to be racist, even though I think raising children to be racist is incredibly damaging to both them and society.

But I think the better racial analogy would be a mixed race child who for some reason is being raised by white supremacists. What is the extent to which those parents should be permitted to emotionally damage that child? Which is precisely what I think is the situation with gay children being raised by homophobes.

And it's really a question about line drawing. Some lines are easier to draw than others.

[Roger S]

The gender affirming care is the snake oil that does not work. It makes people miserable.

[JasonT20]

If I go through conversion therapy, would you let me take your adolescent son on a weekend camping trip? The pastor replied hell no. The activist responded, "OK, so we've established that you don't think it works either."

Actually, what it established is that the pastor is a bigot that equates being gay with being a pedophile.

[damikesc]

Weirdly, a father would not allow his underage daughter to spend the night with a man.

Is he ALSO heterophobic?

[Lee Moore]

1. Pedophiles are attracted to pre-pubescent children not adolescents

2. Most heterosexual and most homosexual adults are not pedophiles

3. There are many more heterosexual pedophiles than homosexual pedophiles

4. There are also many more heterosexuals than homosexuals

5. A higher proportion of homosexuals than heterosexuals are pedophiles

6, Pedophilia is almost entirely a male thing.

[MaddogEngineer]

Some of those precedents about whether birthing people seeking "reproductive healthcare" may be counseled for or against having an abortion might suddenly be (in)convenient.

[theobromophile]

There is some evidence that a number of trans people are gay; they seek out gender affirming surgery so as to be heterosexual. For example, a young lesbian might undergo MTF surgery to become a straight man.

How does that interact with the conversion therapy ban? If you counsel your patient to embrace her lesbian identity, you're denying her trans identity. If you encourage her to embrace her trans identity and date women, you're denying her lesbian identity.

[ConservativeProfessor]

Bingo!

[A Woman of No Importance]

How about you just encourage them to be what will make them happy, which may vary from one person to another?

[JasonT20]

How could he do that? He would be committing the sin of empathy if he did.

[theobromophile]

How about you respond to the question that was asked?

[MollyGodiva]

The court has recognized that professional speech can be regulated if there is a compelling government interest using strict scrutiny. Conversion therapy is child abuse. It is not done with the well-being of the minor, but to satisfy the discomfort of patents who don't like that their kid is gay. The child is there unwillingly and subjected to continuous berating and religious indoctrination. Sometimes it includes physical child abuse.

Yes, it is constitutional to outlaw that.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

It's definitely constitutional to outlaw your hyperbolic hypothetical that is severed from reality!

[damikesc]

...but telling a boy that he is REALLY a girl --- that is still cool, right?

[Roger S]

It is always done for the well-being of the minor. There is no compelling government interest for minors to be homosexual. Just the opposite.

[MollyGodiva]

"Conversion therapy is an attempt to change the sexual orientation or gender identity of an LGBTQ+ individual to conform to heteronormative, cisgender archetypes using practices such as aversion therapy and talk therapy. It denies the true identity of a person, and to allow its practice on minors constitutes child abuse. In fact, conversion therapy qualifies as torture in many international spaces. Multiple studies indicate that children who undergo these “treatments” are at higher risks of suicide, attempted suicide, depression, self-injury, substance abuse, and have difficulty forming interpersonal relationships as adults. Not only does the data show that conversion therapy is harmful, but it also shows that conversion therapy does not work."

https://jgrj.law.uiowa.edu/sites/jgrj.law.uiowa.edu/files/2023-05/JGRJ%2026.2_Williams_2.pdf

And the government has zero business caring who is gay and who is not.

[Roger S]

That is just the opinion of an LGBTQ+ promoting professor. In fact, it is the LGBTQ+ people who have higher risks of suicide, attempted suicide, depression, self-injury, substance abuse, and have difficulty forming interpersonal relationships as adults. There are no scientific studies showing that conversion therapy is any more harmful than other therapies.

[David Nieporent]

Liberals have a consistency problem. If one takes the position that the government can't constitutionally ban 'gender affirming care,' then how can the government constitutionally ban 'conversion therapy'? The same arguments apply to both. The only way to distinguish them is to say, "Well GAC is good and CT is bad," but that's not a constitutional argument.

[Josh R]

The liberal argument against banning gender affirming care is that is sex discrimination (at least in the laws being challenged which facially are based on sex), and thus heightened scrutiny applies. The liberal argument in favor of banning conversion therapy is that it is a regulation of conduct that only incidentally burdens speech, and thus rational-basis review applies.

Those are two very different arguments which could result in the liberal view, or the conservative view, always prevailing.

[JasonT20]

That's not my way of thinking. My way of thinking is that gender-affirming care either can or can't be backed by evidence that it is effective at improving the mental health of people that experience gender dysphoria. Conversion therapy does not subject itself to falsification, does it? If it doesn't, then it isn't at all scientific and is just religious dogma. And, in that case, it wouldn't be any sort of problem for government to refuse to allow people to engage in it while claiming that it is backed by science.

That some liberals go the discrimination route with it is unfortunate as a legal argument, even though it arguably true that cultural conservatives are targeting a disfavored group for discrimination. But proving that in court, especially to culturally conservative judges and justices, is more difficult and has more pitfalls than relying on the scientific evidence.

[Lee Moore]

I don't think your distinction is valid. Conversion therapy can be framed as improving the mental health of (currently) gay folk. And gender affirming care can be framed as unfalsifiable. Depends on who is holding the measuring stick.

[Josh R]

In the first instance, it's the majority as determined in the laws passed by their elected representatives that holds the measuring stick. But, the courts are now weighing in as well and the level of scrutiny will matter.

If speech is censored, then strict scrutiny applies and it doesn't matter whether conversion therapy is scientific. Laws banning it are going to be invalidated.

If there is discrimination on the basis of sex. heightened scrutiny applies and the scientific basis for gender-affirming care will be important in the analysis.

[Joe_dallas]

here is a study that blows a big hole in the believe that gender affirming care improves the mental health of the afflicted.

https://academic.oup.com/jsm/advance-article-abstract/doi/10.1093/jsxmed/qdaf026/8042063?redirectedFrom=fulltext&login=false

[A Japanese Student]

I'm always skeptical of citing just one article (that I do not have access to). The abstract suggests, however, that the "hole" is not as big as you suggest.

Most importantly, the article only examines surgery, not other care. It also does not appear to compare one's mental health pre- and post-surgery - only those who had one and who hadn't. I'm also interested whether this is specific to those kinds of surgery, or whether increased risk applies to other surgeries.

[Joe_dallas]

Agreed - one shouldnt rely on a single study.

Likewise - one shouldnt rely on the multiple pro - gender mental health studies with heavy agenda driven bias such as those pushed by wpath.

[Lee Moore]

Hmm. It seems to me that the more obvious distinction is that "gender-affirming care" typically involves speech and action, while "conversion therapy" typically involves speech and no action.

It's much easier to draw a line between speech and action, such that either 'treatment" is constitutionally protected if confined to speech, and not so protected if it advances into action.

In either case, the constitutional protection of speech extends not only to the "treatment" providers, but also to those who wish to argue that the "treatment" is horseshit.

[Josh R]

Conversion therapy involves both conduct (e.g., aversion therapy) and speech. But, that's besides the point of my response to David.

The challenges to the two bans (hormones and puberty blockers versus conversion therapy) are based on different parts of the Constitution. The decision in one case does not have any relevance to the decision in the other case.

[JoeFromtheBronx]

There are, as the replies note, various arguments made to differentiate. I don't see the gotcha.

Sometimes, the argument is made that certain procedures are unconstitutionally denied based on status. Conversion therapy bans are not unconstitutional in that sense.

Other times, there is an argument made that certain procedures are objectively harmful or not harmful. Again, that very well can be a constitutional argument (though that isn't the only way for liberals to defend things) since it goes to compelling interest.

For instance, if parents have a constitutional right to raise their children by providing them certain services, it can be overridden on best interests grounds. That goes to it being "good" if "good" means medically beneficial or harmful.

[not guilty]

Setting aside the legal issues for a moment, how many of us would want a young man who claims to have successfully undergone "conversion therapy" to marry your daughter and sire your grandchildren?

How high is the risk that he will return to his old habits to have hot monkey sex with men on the downlow?

[Roger S]

Better to have her marry a young man who is trying to go straight, than one leading a promiscuous homosexual lifestyle.

[not guilty]

False dilemma, Roger S. I hope to hell you don't have a daughter,

[Lee Moore]

The primary parental objection to gay sons-in-law (or daughters-in-law) is that they may be disinclined to do their duty in the marital bed.

So - so long as he's siring grandchildren by the score that's fine. The thing about guys, as opposed to gals, is that they can have a dozen cool sloth heterosexual encounters with the lady of the house, per annum, to keep the grandchildren popping out at a good Victorian rate, and spend the rest of the year having hot monkey sex with other women, men or sheep. And the grandchild production will not be affected at all. So long as no unpleasant diseases are acquired during these extramural encounters. But as I understand it - you can catch unpleasant diseases from the laydees just as well as from men. As to sheep, I cannot say.

[Brett Bellmore]

"But as I understand it - you can catch unpleasant diseases from the laydees just as well as from men."

And you can drown in an inch of water just as easily as 10 feet. But for perfectly good reasons, the latter is much more common.

[Michael Ejercito]

What are these reasons?

[Lee Moore]

Not my specialist subject I’m afraid, but I did read an article a while back which suggested that ladies are more vulnerable than men (per encounter) for geometrical reasons.

ie they present a larger, internal, concave surface as opposed to a smaller, external, convex surface. The former gathers foreign bodies more easily than the latter.

Perhaps Brett may have been suggesting that if your son in law was playing away with the ladies he would always be presenting an external convex surface, while if he was doing so with men, he would at least some of the time be presenting an internal concave surface.

Of course there is also the frequency question.

[theobromophile]

The problem isn't necessarily that it would result in "hot monkey sex;" it's that both parties would be miserable and divorce.

I know a handful of women who unwittingly married gay men. They are all divorced. They learn pretty early on that their husbands aren't attracted to them; the sex (for the woman) is awful; on some level, each spouse is angry at the other for being fundamentally deficient. The husband wants his wife to be a man and the wife wants her husband to be heterosexual.

It just screws up everyone's life.