Speech, Therapy, and the Constitution

This post is courtesy of United Families International.

When the U.S. Supreme Court overturned the Tenth Circuit’s decision upholding Colorado’s law restricting therapists’ speech with their minor clients, reactions were swift and polarized.

Alexis Sterling asserted that it weakens the state’s efforts to regulate harmful practices, which were “designed to protect LGBTQ youth from a discredited therapeutic approach condemned by leading health organizations and human rights bodies.”

In contrast, therapist Jeff Bennion concluded that the “Supreme Court ruling striking down Colorado’s conversion therapy ban is a victory for [members of] sexual and gender minorities,” who seek professional help “reconciling faith and sexuality or gender.”

At issue in the case was Colorado’s ban on “conversion therapy” for minors. Justice Gorsuch pointed out that while the term may evoke aversive physical techniques such as electric shock therapy, the law banned “any practice [including talk therapy] that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” However, “[a]t the same time, the law explicitly allows counselors to engage in ‘practices’ that provide ‘[a]cceptance, support, and understanding for the facilitation of an individual’s . . . identity exploration and development.’ Likewise, the law allows counselors to provide ‘[a]ssistance to a person undergoing gender transition.”’ (citation simplified)

Chiles argued that the law permits her speech when she encourages a client undergoing gender transition but prohibits her speech that would help a client align his identity with his sex. In Bennion’s words: conversion therapy bans like Colorado’s are “heavy-handed viewpoint discrimination that unfairly penalizes some beliefs and values while officially endorsing others. These laws have unacceptably placed a thumb on the scale, declaring some beliefs right and others wrong.”

Using the term “conversion therapy” to connote the aversive therapy practices of behaviorism circa 1960-1975, appears to have been key to passing the bans. Aversive therapy sought to link a disfavored or unwanted behavior with some unpleasant sensation or result—pure, dumb conditioning that was thought to govern all aspects of human learning and behavior, including emotion.

Unlike many states, the Utah law acknowledges that it is banning aversive conditioning by defining conversion therapy as “a practice or treatment by which a healthcare professional intends to change a minor client’s sexual orientation or gender identity, or to impose a different sexual orientation or gender identity upon a minor client, including a practice or treatment that:

i. subjects a minor client to physical discomfort through aversive treatment that causes nausea, vomiting, or other unpleasant physical sensation;
ii.provides electric shock or other electrical therapy, including electroconvulsive therapy or transcranial magnetic stimulation
iii.subjects a minor client to touching themself or another individual as part of the therapy; or
iv.causes the minor client to engage in physical self-harm or physical self-inflicted pain.”

Coercive and aversive therapies have long been discredited and replaced by cognitive-emotive therapies which ostensibly respect the client’s values and goals.

Justice Jackson’s Sole Dissent

Justice Jackson’s dissent attempted to categorize the bans as standards of care and talk therapy as equivalent to a medical treatment, arguing that such “regulations are inherently viewpoint based, [and] in the context of medical care, a State can certainly require the medical professionals it licenses to stand on one side of an issue.”

Eight other justices rejected that approach, resulting in accusations of hypocrisy and politicization of the Court, since in the Skrmetti case, the Court had upheld Tennessee’s medical regulations related to minors with gender dysphoria.

Alan Hurst explains the difference between the two cases and the rational basis review in Skrmetti vs. the strict scrutiny review in Chiles: “Legally speaking, the difference between the two cases can be explained in two sentences.

1. The talk therapy at issue in Chiles was talk — i.e., speech — while puberty blockers and cross-sex hormones are prescription drugs.
2. The Constitution has a Free Speech Clause, and it doesn’t have a Free Prescription Drugs Clause.”

Limiting What People Can Put in Their Minds

Hurst further points out that, “anyone who tells you that Chiles will invalidate laws against aversion therapy, shock therapy and similar treatments is either misinformed or trying to deceive you. Even the broad term “conversion therapy” can be deceptive because it lumps the talk and aversive therapies together, and this [Chiles] case was exclusively about talk. . . . The Tennessee law, like all medical regulation, limits what people can do to their bodies, but the Colorado law limits what people can put in their minds.”

The Supreme Court’s clarifying the standard of review and sending the case back to the Tenth Circuit was correct. Laws like Colorado’s have caused therapists to refuse to serve people who want to align their identities, orientations, or genders with their deeply held values because they fear, as Bennion states, “losing their professional licenses and livelihoods. They’re afraid of having their reputations trashed in the media and potentially pilloried as cruel, coercive, shaming Nurse Ratched figures rather than caring clinicians who support the values and self-determination of their clients.”

Bennion’s conclusion seems fitting: This is a victory for everyone, especially vulnerable individuals and families needing caring and supportive therapy. “As the Majority opinion concluded, we all lose ‘whenever the government transforms prevailing opinion into enforced conformity.’”