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How the Supreme Court’s trans therapy case guts the ‘expert’ class

Scientific freedom won big at the US Supreme Court this week.

On Tuesday the court refused to uphold Colorado’s ban on “conversion therapy,” ruling 8-1 that the state law unconstitutionally restricts licensed talk therapist Kaley Chiles’ freedom of speech under the First Amendment. 

Similar bans in 22 other states, including New York and California, will probably fall under this ruling.

The mainstream press billed the legal struggle in Chiles v. Salazar as a cultural battle between Christian right-wingers and transgender advocates.

But in truth, a bigger, more powerful issue was at stake: Can government silence medical dissent?

Eight justices voted against the Colorado law, including liberal Justices Sonia Sotomayor and Elena Kagan.

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Colorado’s lawyers defended the ban by pointing to a consensus among “every major professional healthcare association in the country” that conversion therapy — which aims help patients suffering gender dysphoria to feel comfortable with their birth sex — is ineffective and likely harmful.

But today’s medical consensus is often tomorrow’s outdated science. 

Knowledge evolves, unless the law silences the free exchange of ideas.

Justice Neil Gorsuch nailed that point in his majority opinion.

Medical consensus, he wrote, “is not static: it evolves and always has. A prevailing standard of care may be what most practitioners believe today” — but perhaps not tomorrow.

That’s called progress.

The court has not always been this wise. 

During the oral argument in October, Justice Samuel Alito pointed to one of the court’s most disgraceful past rulings, Buck v. Bell. 

In that tragic 1927 case, the court upheld a Virginia that authorized state mental institutions to sterilize residents considered “feeble-minded.”

Pointing to broad consensus among medical professional organizations — including the American Medical Association — that involuntary sterilization would improve humanity, Justice Oliver Wendell Holmes wrote that “three generations of imbeciles are enough.”  

That allowed Virginia to sterilize a teenager who had been raped by a member of her foster family and who, along with her infant daughter, had been labeled “feeble-minded.”

So much for the wisdom and morality of medical consensus.

But there’s no need to look back as far as Buck v. Bell to see the danger of relying on medical consensus.

During the COVID-19 pandemic, the Biden administration leaned on social-media companies to erase or reduce the visibility of doctors like Jay Bhattacharya and Scott Atlas who challenged lockdowns, mandatory vaccinations, school closings and masking. 

Professional organizations and scientific journals all joined in groupthink — the real meaning of “consensus.”

Ultimately they were proven wrong.

Politicians like former law professor Elizabeth Warren, who should know better about the meaning of the First Amendment, went after Amazon for selling books that challenged COVID regulations.

That’s what makes the Chiles v. Salazar ruling so important: It tells the government to keep its hands off freedom of speech in the medical arena.

This wasn’t a victory for the right, but a victory for everyone.

Kagan made that point in her concurring opinion, calling the Colorado law “a textbook” example of a First Amendment violation.

She explained that if Colorado passed a law banning gender-affirming talk therapy — in effect, the  mirror image of the law Chiles challenged — it would raise the same First Amendment problems. 

In short, the justices affirmed, government may not silence differing viewpoints on what constitutes proper or appropriate medical care.

Banning certain medical procedures is a somewhat different matter, one where the First Amendment does not apply.

Last year the court upheld Tennessee’s right to ban hormone therapy or puberty inhibitors for minors, reasoning that states have always had the power to regulate medical practice. 

But it’s not always clear where medical expression ends and medical practice begins.

Justice Ketanji Brown Jackson, the only dissenter in Chiles v. Salazar, erred by opposing the right of medical professionals to break from the current consensus.

“Before now,” she wrote, “licensed professionals had to adhere to standards when treating patients. They could neither do nor say whatever they want.” 

Jackson excoriated the majority for turning “its back on that tradition.”

Her words echoed those of Dr. Anthony Fauci, who infamously insisted that attacks on him, “quite frankly, are attacks on science.”

Americans suffered and even died during COVID because of the wrongheaded idea that consensus thinking should never be questioned — and that it’s acceptable to censor those who dare to do so.

The ruling in Chiles v. Salazar is a bold, nonpartisan step to protect freedom of speech and invigorate the marketplace of medical ideas. 

Betsy McCaughey is a former lieutenant governor of New York.

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