Supreme Court Rules Against Conversion Therapy Bans On Transgender Day Of Visibility

"The fallout could be catastrophic," said Justice Jackson in her lone dissent of the 8-1 opinion.

Photo by Ian Hutchinson on Unsplash

On Tuesday, the Supreme Court of the United States issued a sweeping ruling in favor of conversion therapy, finding that bans on the practice likely violate free speech and remanding the case to lower courts in a way that virtually guarantees such bans will no longer survive legal challenge. The ruling, which holds that speech-based professional conduct is protected by the First Amendment, could open a Pandora's box of challenges to professional regulations across medicine and mental health. It is likely to invalidate over 23 state laws banning conversion therapy, potentially reinstituting the practice nationwide. The decision comes on Trans Day of Visibility, following five other anti-LGBTQ+ rulings mostly focused on transgender people in the last year alone—including the Skrmetti ruling upholding bans on trans youth healthcare, the Mirabelli ruling on forced outing of trans students, the trans military ban, the passport ruling, and Mahmoud v. Taylor—and is likely to be weaponized to empower counselors to practice conversion therapy on transgender kids as well as other LGBTQ+ kids in the near future.

The ruling was issued under an 8-1 opinion authored by Justice Neil Gorsuch, with only Justice Ketanji Brown Jackson dissenting. Justices Kagan and Sotomayor, both members of the court's liberal wing, joined the majority but filed their own concurrence signaling that a more carefully written law might survive constitutional challenge. The case, Chiles v. Salazar, was brought by Kaley Chiles, a licensed Christian counselor in Colorado represented by the Alliance Defending Freedom—the same conservative legal powerhouse behind 303 Creative v. Elenis, which established a First Amendment right for businesses to refuse service to same-sex couples and which has supported and helped draft anti-trans laws nationwide.

Chiles challenged Colorado's Minor Conversion Therapy Law, passed in 2019, which prohibits licensed mental health professionals from engaging in any practice or treatment that attempts to change a minor's sexual orientation or gender identity. The law was designed to protect LGBTQ+ children from a practice that every major medical organization in the country has condemned as harmful and ineffective. Now, with the ruling in hand, parents soon could force their minor children into conversion therapy sessions aimed at changing their sexual orientation or gender identity—sessions that research has shown more than double the risk of suicide attempts among LGBTQ+ youth.

"Her speech does not become 'conduct' just because a government says so or because it may be described as a 'treatment' or 'therapeutic modality.' The First Amendment is no word game, and 'the exercise of constitutional rights' cannot be circumscribed 'by mere labels,'" wrote Gorsuch for the majority, without considering the implications of expanding free speech protections to professional conduct that is speech-based. Under this logic, any medical treatment delivered through words rather than instruments could now carry First Amendment protection—a framework that could shield a doctor who encourages a patient to commit suicide, a dietician who tells an anorexic patient to eat less, or a therapist who deliberately steers a vulnerable client away from life-saving treatment. It could also extend well beyond medicine: a financial advisor who talks an elderly client into a bad investment is exercising speech-based professional conduct, as is a lawyer who gives harmful legal advice.

Justice Jackson, the sole dissenter, responded in scathing terms, reading her dissent from the bench—a step justices reserve for when they believe the majority has made a grave error. “Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned,” she wrote. “Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want. Largely due to such State regulation, Americans have been privileged to enjoy a long and successful tradition of high-quality medical care. Today, the Court turns its back on that tradition. And, to be completely frank, no one knows what will happen now. This decision might make speech-only therapies and other medical treatments involving practitioner speech effectively unregulatable—not to be reached via licensing standards, medical-malpractice liability, or any other means of state control. Who knows? Certainly not the majority. It appears to have made this momentous decision without adequately grappling with the potential long-term and disastrous implications of this ruling. The fallout could be catastrophic.”

Jackson continued: “The Court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers. A state license used to mean something to the patients who entrust their care to licensed professionals—i.e., that the person is certified to be one who provides treatments that are consistent with the standard of care. That stops today. We are on a slippery slope now: For the first time, the Supreme Court has interpreted the First Amendment to bless a risk of therapeutic harm to children by limiting the State’s ability to regulate medical providers who treat patients with speech. What’s next? In the worst-case scenario, our medical system unravels as various licensed healthcare professionals—talk therapists, psychiatrists, and presumably anyone else who claims to utilize speech when administering treatments to patients—start broadly wielding their newfound constitutional right to provide substandard medical care.” She concluded: “It is baffling that we could now be standing on the edge of a precipitous drop in the quality of healthcare services in America. Somehow, Justices from eras past have always understood that ‘there is no right to practice medicine which is not subordinate to the police power of the States.’ We do harm to both the Nation’s medical system and our First Amendment jurisprudence by ignoring that wisdom today.”

The practice the court has now shielded under the First Amendment has been condemned by virtually every major medical and mental health organization in the country. The American Psychological Association adopted a formal resolution opposing the practice in 2021. The American Psychiatric Association has opposed it since 1997, as have the American Medical Association, the American Academy of Pediatrics, the American Counseling Association, and more than a dozen other professional bodies. The Trevor Project's research has found that LGBTQ+ youth subjected to conversion therapy are more than twice as likely to attempt suicide and more than 2.5 times as likely to report multiple suicide attempts. Survivors describe lasting psychological damage including depression, PTSD, anxiety, self-hatred, and suicidal ideation. The United Nations has deemed conversion therapy a form of torture and recommended it be banned worldwide.

Now, states will have a much more difficult time regulating the practice, although some creative methods may still exist. American civil rights attorney and clinical instructor at Harvard, Alejandra Caraballo, tells Erin in the Morning that states could be more creative in banning conversion therapy moving forward using private rights of action, which the court has ruled may be insulated from this kind of constitutional review in other cases. "While the Supreme Court decision limits the abilities of states to regulate conversion therapy through professional standards, they did not limit the ability for states to protect LGBTQ youth from these abusive practices through tort or malpractice law. States should quickly move to provide survivors of conversion therapy with legal recourse through private rights of action that make engaging in this type of harmful practice financially impossible," says Caraballo.

The case now returns to the Tenth Circuit, where Colorado's law will be evaluated under strict scrutiny—the most demanding constitutional standard, which requires the state to prove the law is narrowly tailored to serve a compelling government interest. Few laws survive that test, and conversion therapy bans are unlikely to moving forward. But the impact extends far beyond Colorado: more than 23 states and Washington, D.C., have similar conversion therapy bans on the books, and each is now vulnerable to challenge under the framework the court established today. The Alliance Defending Freedom has already signaled its intent to challenge bans in other states. For LGBTQ+ youth across the country, the message from this court is clear: the First Amendment protects the right of a licensed counselor to coercively change who they are inside or who they might love.