Supreme Court Strikes Down Conversion Therapy Ban

States can’t ban so-called conversion therapy, aimed at changing a minor’s sexual orientation or gender identity, the Supreme Court has ruled.

The justices ruled, 8-1, Tuesday that the First Amendment prohibits states from using their licensing power to limit the topics therapists and other professionals can discuss with their clients.

“The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country,” Justice Neil Gorsuch wrote for the court’s majority.

The ruling is a win for the Trump administration, which urged the court to declare that Colorado’s ban violates free speech rights.

The case, Chiles v. Salazar, was brought by Kaley Chiles, a licensed counselor who described herself as a practicing Christian who sometimes provides counseling informed by her faith. Chiles said she wished to offer talk therapy to minors who want to reduce feelings of same-sex attraction or feel more comfortable in their bodies.

Chiles isn’t licensed to prescribe medicine or perform surgery, so the ruling does not directly impact states’ power to regulate those sorts of interventions.

Justice Ketanji Brown Jackson was the sole dissenter. She said the court was unwisely interfering in the long tradition of states’ regulating the practice of medicine and similar professions.

“Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional,” Jackson wrote. She declared that conversion therapy is dangerous and said the court’s decision “opens a dangerous can of worms.”

“It threatens to impair States’ ability to regulate the provision of medical care in any respect. It extends the Constitution into uncharted territory in an utterly irrational fashion. And it ultimately risks grave harm to Americans’ health and wellbeing,” she added, reading portions of her dissent from the bench in a sign of deep disagreement.

But Gorsuch, citing the fact that major medical groups once considered homsexuality an illness, countered that leaving medical professionals’ speech unprotected would stifle progress.

“Medical consensus, too, is not static; it evolves and always has. A prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow,” he wrote.

Justice Elena Kagan, joined by Justice Sonia Sotomayor, concurred with the court’s conservative bloc but added in a separate opinion that a complete ban on therapy aimed at a person’s sexual orientation or gender identity might be lawful. Kagan said the key flaw in Colorado’s law was that it allowed some such counseling while prohibiting other professional approaches.

Kagan also repeated a point she made during oral argument in the case: Upholding Colorado’s ban might bless efforts by conservative states to prohibit talk therapy aimed at affirming patients’ gender identity. “It does not matter what the State’s preferred side is,” she wrote.

In a 6-3 decision last year in a case from Tennessee, the Supreme Court broadly upheld the power of states to ban doctors from prescribing hormone therapy or puberty inhibitors as part of gender-affirming care. A related ban on surgery for transgender minors was not challenged in the case.

The new ruling is the Supreme Court’s most recent foray into transgender-related issues, but won’t be the last. The justices heard arguments in January in a pair of cases relating to state efforts to ban transgender girls from competing on girls’ sports teams. Rulings on those cases are expected by late June.