How in the World Was the Supreme Court’s Awful Conversion Therapy Ruling 8–1?
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The Supreme Court delivered a major blow to one of the triumphs of the LGBTQ rights movement on Tuesday, imposing stringent constitutional restraints on laws that bar professional counselors from attempting to change a minor’s sexual orientation or gender identity. These measures, enacted by more than half the states, shielded children from a discredited and abusive practice that fails to achieve its aims while inflicting serious, lasting psychological harms. Now, by an 8–1 vote, SCOTUS has held that, under the First Amendment, such protections are “presumptively unconstitutional” as applied to “talk therapy,” severely restricting their scope. Even the liberal Justices Sonia Sotomayor and Elena Kagan signed onto this sweeping opinion.
What’s most frustrating about the court’s decision in Chiles v. Salazar—aside from its devastating real-world consequences for LGBTQ youth—is its profound hypocrisy masquerading as principle. Justice Neil Gorsuch’s majority opinion praises itself for preserving Americans’ “inalienable right to think and speak freely” by rejecting Colorado’s alleged “effort to enforce orthodoxy in thought or speech.” But as Justice Ketanji Brown Jackson explained in her lone dissent, the majority really took sides in the culture wars: It affirmed the constitutional rights of anti-LGBTQ therapists while continuing to disregard the rights of trans-affirming doctors, abortion providers, and other medical professionals disfavored by this court. More ominously, Jackson wrote, the majority “appears to have made this momentous decision without adequately grappling” with its “potential long-term and disastrous implications” for all manner of medical regulations, which are suddenly vulnerable to a First Amendment attack.
“Because the majority plays with fire in this case,” Jackson warned, “I fear that the people of this country will get burned.”
LGBTQ children will feel that burn first. Almost 30 states have curbed or outlawed “therapy” that seeks to change minors’ sexual orientation or gender identity—that is, to make them stop being gay, bisexual, or transgender. These measures take the form of professional licensure rules, subjecting therapists to fines (and eventually loss of license) if they try to “turn” an LGBTQ minor straight or cisgender. Nonprofessional counselors, including family and clergy, can still engage in this conduct, as can professional counselors outside of their paid practice. Every major American medical association to consider this issue has come out in opposition to “conversion therapy” for youth and endorsed its prohibition. These groups have explained that it is impossible to change a person’s identity in this way and deeply unethical to try. Survivors of the practice have attested to its inefficacy and dangers, including a heightened risk of suicide.
Anti-LGBTQ advocates, however, have long argued that these laws are not legitimate medical regulations, but rather invidious censorship that violates the First Amendment. So the far-right Alliance Defending Freedom, which rejects the validity of transgender identities and supports the........
