Open Season
The Supreme Court has ruled 8-1 against state-level bans on conversion therapy. The ruling in Chiles v. Salazar does not immediately invalidate the Colorado law at issue, which made it a violation of one’s state mental health licensure to engage in “therapies” that attempt to turn queer, trans, and questioning minors into young gender-conforming straight folks. However, the Court’s ruling essentially seals the law’s fate and the fates of similar laws in 22 other states and the District of Columbia.
The lopsided SCOTUS majority held that Colorado’s legislation constitutes a form of viewpoint discrimination that runs afoul of the First Amendment. The Court sent the case back to a lower federal court to reconsider it with instructions to apply “strict scrutiny,” a kind of constitutional analysis under which the presumption is against state action that implicates important rights.
The only dissent was a sharply written one by Justice Ketanji Brown Jackson, who demanded that her colleagues understand the context in which this and all controls on professional speech occur in the real world. Alone on the nation’s highest bench, Jackson recognizes the long history of harms caused by anti-gay practices that have traveled under cover of professional expertise.
Colorado’s law was passed in 2019. It was part of a wave of state-level efforts beginning in the 1980s and 1990s to reflect in law the fact that “conversion therapy” was widely discredited by professional associations and advocates for LGBTQ+ people. During that period, LGBTQ+ people pushed hard against older biases and AIDS-inspired ones alike. Leading gay historian Martin Duberman published a devastating memoir called Cures (1991), which chronicled the years of destructive talk therapy he underwent as part of his quest to be straight, abetted by one therapist after another who pushed him to twist his psyche and waste his time and money on a meaningless and fruitless quest. Law professor William Eskridge argued in the landmark study Gaylaw (1999) that U.S. law should treat gayness and straightness as merely examples of what anthropologist Gayle Rubin had termed “benign sexual variation.”
Colorado’s law was passed in 2019 as part of a wave of state-level efforts to reflect in law the fact that “conversion therapy” was widely discredited.
Bans on conversion therapy were part of the effort to treat diversity in people’s gender and sexual identities, practices, and preferences as healthy and normal, as morally and politically neutral. This included even our flamboyances, our gender-rebelliousness, our sexual discontents, our desires to flaunt or flounce, to femme or butch it up. If our troubles with majority expressions of gender, sex, and sexuality were totally cool, then medical practices pretending otherwise were problematic. This seemed even more true as evidence accrued, from Duberman and a couple of generations of people who were subjected to the so-called therapy, that it was not neutral but harmful.
The majority opinion, penned by Justice Neil Gorsuch, protested too much about the supposed simplicity of the case. He presented it as a simple matter of First Amendment–protected speech. (Can’t you see it’s about words?!? Words, I tell you!!) He asserted a bright-line distinction between speech and action, which does not exist. And he built on this distinction a phony idea: What doctors do with pills and instruments can constitutionally be regulated by state governments—it turns out the liberal squishes who thought the Supreme Court might criminalize the provision of abortion pills by Planned Parenthood or uphold state-level bars on doctors providing hormones to transitioning teens whose parents have agreed that the hormones are in their kids’ best interest might have had a point!—but words alone, by suggestion at once less powerful than physical interventions and more sacrosanct than them, cannot be regulated. This raises the question: Do Justice Gorsuch and the other five justices in the conservative supermajority understand what psychologists and other mental health professionals do?
The fake bright line here reminded me of conservative grousing about “hate speech” regulation. It also made me wonder if maybe a hard swipe at Sigmund Freud wasn’t part of the contemporary conservative project, to make us all believe that intellectual modernity was nothing but a put-up job designed to take stuff away from straight white able-bodied men of European heritage.
Justice Elena Kagan wrote for herself and Justice Sonia Sotomayor to agree, hurriedly, with the right-wing majority. Her short concurrence seemed to this reader a little embarrassed, given that she has to know how hard LGBTQ+ people, who have gotten enough hits this year already, will take it. But Kagan also seemed nearly as concerned as Justice Gorsuch about the “viewpoint discrimination” in the Colorado law. It is true that the law permits speech that supports teens’ gender questioning and their emergent queer sexualities. It forbids as a species of professional malpractice speech that pushes young people toward conventional gender and sexual expressions, practices, and identities. (The law allows licensed mental health counselors to refer these patients to other practitioners, who can offer explicitly religious counseling, which can push the patients toward whatever gendered and sexual norms are favored in their religion.)
Maybe Justice Kagan is thinking about her experiences as a professor and dean, before she joined the Supreme Court bench. To be sure, we college professors need protection from governmental heavy-handedness when it comes to enforcing what we and our students can say and write, as much today as ever in the past. But this kind of First Amendment talk is as mutable as any other kind of law talk. My colleagues are far more likely to be censored, censured, or worse in the name of “viewpoint diversity” for expressing genuinely unpopular opinions than they are to be protected by this kind of approach to the First Amendment. (Viewpoint diversity in academia these days largely means that I have to make more space on campus for students and even professors to say things that are harmful to traditionally subordinated groups, things that one can hear any day of the week on right-wing cable television.)
Justice Jackson alone seems capable of meeting the moment. She underlines that conversion therapy has had two effects, neither productive or benign. First, it has stigmatized patients who question their sex, sexuality, and/or gender, or who have stable sexual and/or gender identities that differ from the ones that our culture endorses most readily. Second, these pseudo-therapies have set up LGBTQ+ and questioning people for failure by encouraging them to pursue mainstream sexual and gender identities that they are unlikely to achieve—even if, as with Duberman back in the day, they really want to and try super hard. Along the way, they will certainly be affirmed in the view that straight is better than gay, cisgender than transgender, straight and narrow than queer and wiggy.
To interpret the Supreme Court’s opinions in this case, I spoke to Marie-Amélie George, a professor at Wake Forest University Law School and expert in LGBTQ+ law. (George is also a close colleague and co-author of mine.) George argued that the Colorado law was an example of “symbolic expressive regulation.” No professional had been charged or sanctioned under the law, including Kaley Chiles, the professional in whose name the Christian, right-wing legal advocacy group Alliance Defending Freedom brought this case. Colorado’s point, and the point of the many other jurisdictions with similar laws, was to broadcast that certain practices by professionally licensed persons are contrary to the good of the citizenry. Even more, laws like the one considered in this case aimed to broadcast that gayness, queerness, transness, and every other kind of LGBTQ+-ness was perfectly OK. By ruling against Colorado, the Supreme Court of the United States has indicated that professionals may retain their licenses while offering “therapy” premised on the opposite view.
Chiles v. Salazar was all about the deep value of “viewpoint diversity” in a constitutional democracy. Maybe one place to work on increasing that kind of diversity is a one-sided Supreme Court that seems content to treat malpractice as just another set of opinions.
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