Unpacking The Supreme Court’s Conversion Therapy Decision

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0:29in 2019 colorado governor jared polis the first openly gay man to be elected governor signed a bill banning conversion therapy in the state not only is there no evidence whatsoever that anybody can change their sexual orientation but in fact many of these so-called therapies or treatments are counterproductive, leading to lifelong issues with depression, even ultimately ending in suicide for some. Last week, the Supreme Court ruled that ban may be unconstitutional. Conversion therapy seeks to change the sexual orientation or gender identity of a person. It's been deemed unethical and ineffective by most major medical and mental health groups.

1:12A study from the Trevor Project found that young people who go through conversion therapy were more than twice as likely to report attempting suicide compared to those who did not. The Supreme Court decision only had one dissenter. Justice Ketanji Brown Jackson wrote that this decision, quote, opens a dangerous can of worms and threatens to impair states' ability to regulate the provision of medical care in any respect. The American Psychological Association wrote in a statement that it shares Justice Jackson's concerns. But the case argued before the court was about free speech. Kaylee Childs is a licensed therapist in Colorado.

1:50She brought the case to the Supreme Court, arguing that the state's ban violates her First Amendment rights. I'm Jen White. You're listening to the 1A Podcast. Today, what's behind the Supreme Court's decision, and what are the larger implications of this case for other states, health care, and LGBTQ youth? We'll discuss these questions and more after this quick break. Stay with us.

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3:38Listen to Odd Lots wherever you get your podcasts. Welcome back to the 1A podcast. We're talking about the effects of conversion therapy and the Supreme Court's latest decision on the matter. Let's get into it and meet our panel. Joining us from Texas is Shannon Mentor, the Legal Director of the National Center for LGBTQ Rights. He also helped draft the legislation in Colorado and in other states that restricts conversion therapy practices. Shannon, welcome to the program. Thank you. Glad to be here. Also with us is Julia Sadusky. She's a clinical psychologist in suburban Denver who often works with Christian youth.

4:14She's also the author of Gender Identity and Faith and Start Talking to Your Kids About Sex, a practical guide for Catholics. Julia, thank you for joining us. Hi, it's great to be here. And Kevin Cope, a law professor and political scientist at the University of Virginia School of Law who focuses on free speech and discrimination. Kevin, welcome to 1A. Thanks, Jen. Great to be here. Well, let's first hear from Colorado Counselor Kaylee Childs talking about her Supreme Court win. The law I'm challenging harms kids and silences speech. Kids deserve real help affirming that their bodies are not a mistake and that they are wonderfully made.

4:53I'm grateful that my speech is protected, but I'm even more excited that families and children seeking access to counseling that respects biological reality will be able to get the help that they need. So, Kevin, a big piece of this case is that it asked the court to consider talk therapy as speech, not as physical medical intervention. So just spell out the differentiation and the argument that talk therapy is covered under free speech protections. Right. So as you pointed out, the threshold issue in this case that's divided the courts and divided this court is whether this Colorado conversion therapy law restricts speech on one hand or professional conduct in a way that only incidentally affects speech on the other hand.

5:39And this is important because if it's ordinary speech, the courts are going to apply the highest levels of First Amendment scrutiny and probably hold it unconstitutional. But if it's conduct, the courts will largely defer to the government and likely uphold it. And here, of course, the court said that psychotherapy, talk therapy about sexual orientation, gender identity is a form of speech. And so especially because the law favors one particular viewpoint of that issue, so favoring counseling advice that affirms these things rather than disaffirming it, the court essentially instructed the Court of Appeals to hold it unconstitutional.

6:18Shannon, you helped draft this legislation in Colorado. What were some of your main takeaways from reading the court's decision and hearing the arguments leading up to it? Well, what's so important, I think, is that we understand that the court did not endorse conversion therapy. The decision doesn't say that it is safe, ethical, appropriate, or even legal. And in fact, the decision went out of its way to say that it can be harmful and that patients could still bring malpractice claims. I think the main takeaway for me is it was a very narrow decision, and it focused on just some terminology in the statute that, as Professor Cope just noted, the court found to be two-one-sided.

7:06For example, it talks about eliminating or reducing same-sex attractions, but not the opposite. It talks about how it's okay to support a young person through a gender transition, but it didn't address young people who determined that they're not transgender and helping them with that. So it's very narrowly focused on just the wording of the statute. Kevin, help us better understand the viewpoint discrimination piece of this case and how it relates to talk therapy. Right. So under U.S. constitutional law, the courts have historically, traditionally, throughout much of our history, strongly disfavored laws that are viewpoint-based, that is, that take one side of a debate and try to silence the other side.

7:59So we saw this in the cross-burning case, RAV versus St. Paul in the 90s, which struck down a Minnesota statute against cross-burning. We've seen it in the 40s in a law that required schoolchildren to salute the flag and recite the Pledge of Allegiance. So in each of these cases, the court recognized that the government in the United States doesn't have the power to authorize one side of a debate while silencing the other side of the debate. And so I'm not aware of any case in which the Supreme Court, outside of a few specific categories that aren't at issue here, like advertising, any case where the Supreme Court has upheld a law that it's called explicitly viewpoint -based.

8:49And here the court did find that it was viewpoint-based. So it's not that surprising that it would then hold it unconstitutional or direct the courts to do so. Well, we heard from Charlie in Minnesota who writes, I don't think the court understands the difference between freedom of speech and treatment that is described as medically necessary and provided by licensed mental health professionals. The treatment is based on a biased, religiously based homophobia and fear of gender fluidity. As a retired counseling psychologist, my profession has never and would never view this alleged treatment as ethical or appropriate.

9:24Julia, you wrote a brief for the Supreme Court in this case. First, how do you define conversion therapy? So I think the most helpful way to think of conversion therapy is really any therapy modality where the therapist establishes a goal of treatment, where that goal is a change of attraction, of orientation, or a change of gender identification. So that's kind of a simple definition of conversion therapy. And so what did you argue in your brief? So in my brief, I really highlighted some key pieces that I've witnessed in my work with clients around the harms of conversion therapy. Overwhelmingly, the people who seek conversion therapy are highly religious people, and they're people who are trying to bring their experiences into a kind of alignment with their faith.

10:18So many of these people go to a conversion therapist, whether they advertise explicitly that way or not, and they're seeking really to improve their relationship with God, to have better relationship with their family, and to have better mental health over time. And what I've witnessed again and again as a psychologist working in Colorado with minors is those who have sought out conversion therapy previously do experience really diminished mental health outcomes as a result of that care. So what happens is a lot of these therapists focus on the sexual orientation or the gender questions at the expense of bringing in evidence-based treatments to address depression, anxiety, suicidality.

11:02Another important thing to note is that conversion therapy theories really rely on assumptions about how parents and parent-child relationships cause a person's attraction or gender identity. So you can imagine for especially teenagers, if they're being told that their parent, a smothering mother, a distant father, is really causing their attraction, there's going to be a lot of alienation and conflict in that home. And so I've seen it drive a wedge in communication with parents at a time when parents are really a key predictor of that young person's well-being. And then finally, I've seen again and again that the quality of people's relationships with their faith community, with God, is really harmed by these approaches because the change of attraction or gender is really set as a kind of condition of right relationship with God.

11:54If you can imagine for highly religious people where faith can actually be a protective factor against suicide, that goes away when conversion therapy doesn't work. Well, the Supreme Court's decision doesn't overturn this ban immediately. Instead, they decided to kick it back to the lower courts. Shannon, just briefly explain what happens next. Well, the state of Colorado would have a chance to meet the strict scrutiny standard in the show. There's a really compelling interest here, which there is, certainly, protecting young people and their families. But you know what I think may happen instead is given how narrow the Supreme Court decision was and that the court was pointing to specific terminology that it disturbed them, I think Colorado likely will amend its law before that has a chance to happen.

12:46But we have to take a short break. But when we come back, we'll talk about the long-term effects of conversion therapy on LGBTQ youth and more about how states are responding to the Supreme Court's decision. We'll be right back.

13:02This message comes from Intuit TurboTax. With TurboTax Expert Full Service, match with a dedicated expert who will do your taxes for you from start to finish, getting you every dollar you deserve. It's that easy. Visit TurboTax.com to match with an expert today. We're discussing a recent decision by the Supreme Court and what it means for a ban on conversion therapy in Colorado and beyond. Here's a message we got from David in Utah. I'm a clinical mental health counselor. I'm currently a gay affirming therapist, but for 20 years previously, I was a conversion therapist. The first thing I can say is that it is far more complex than most people believe.

13:43Second thing on the bottom line is it doesn't work. I engaged in conversion therapy myself. I went to conversion therapy for my own homosexuality many years ago and tried for 30 years. And ultimately, it did not change my orientation. Secondly, I've worked with men for about 20 years trying to help them change their orientations. I saw a lot of sexual repression. I saw a lot of maximizing the heterosexual side in bisexual men, but I did not see any genuine sexual orientation change. The real culprit here is not diverse in therapy, but religions that are homophobic and that demand that people who are gay or lesbian try to be someone that they're not.

14:25That's where the pain comes from. that's what causes the suicides. David, thanks for sharing that message. And a note that the Trevor Project has a suicide helpline. You can connect to a crisis counselor through text, chat, or phone 24-7, 365 days a year. You can access that resource at thetrevorproject.org or text START to 678-678. Again, text START to 678-678. Julia, as a therapist, what do you make of the decision the court made in terms of how it characterizes talk therapy? I was so struck by that argument of the court. It really was pretty chilling to appreciate that the court interprets what happens in talk therapy as merely speech.

15:14So in mentoring relationships or in pastoral care settings or in friendships, we do. We tend to tell people our perspective. We tell them our beliefs and values, and we try to encourage people we care about to make decisions in line with those beliefs and values. Therapy is a fundamentally different thing. Talk therapy, as well as any other form of therapy, is at its best incorporating evidence-based interventions that have enormous research bases behind them in order to really inform the effectiveness of our approach. So when I'm treating depression, anxiety, self-harm, suicidality, or really anything that somebody comes in with, I need to have evidence to justify my interventions.

15:58And so you may use cognitive behavioral therapy, dialectical behavioral therapy, psychodynamic psychotherapy, EMDR. All of these therapies are treatment regimens that we're trained in as licensed providers. It's not merely me talking to somebody and telling them what I think they should do. in their life. Well, this gets to a question from Teresa who asks, what am I missing? Therapy isn't supposed to be a situation where a provider is supposed to be expressing their personal beliefs, right? Julia, what can you tell us? That's exactly right. I mean, certainly clients will ask from time to time, what do you think or what should I do?

16:35And I often remind them that if I tell them my perspective on their question, I'm one more source of authority telling them what I think. And fundamentally, if that was all it took for us as human beings to resolve our issues or problems or challenges in life, we would have figured it out long ago before coming to therapy. And so we don't just need one more source of authority telling us their perspective. What we really need is the space, the treatment protocols that have been established to be effective and not harmful so that we can make decisions about our lives that align with our values.

17:13And that really involves a lot of the approaches that I've developed to work with these populations in order to be effective and not harmful. We got this from a member of our tax club. I just don't understand how speech that is a medical treatment and that is shown by many studies to harm and not help can be protected speech. The speech is directly causing harm to mostly young people. And Marvin emails, the free speech principle is never protected speech that harms people. Just because this speech is religious-based doesn't mean it doesn't cause harm. Kevin, your response to those messages? Right.

17:47Well, Julia's perspective is very much in line with some of the things Justice Jackson articulated and some of the views of the lower appellate court in Colorado. Look, a big part of the theory behind protecting speech is that, yes, sometimes speech will harm. So we have the case from a few years back where the Westboro Baptist Church was protesting at a funeral using epithets and celebrating a soldier's death. And the court held that that was, by 8 to 1, I believe, held that that was protected speech, even though it certainly inflicted harm. And the idea was that once the government starts taking sides and saying some things can't be said, then it's in the business of censoring and there's no logical stopping point for that.

18:43But I certainly understand the perspective of Julia and Justice Jackson and many other commentators who believe that this is more like a medical treatment, like a surgery or like a medication, than it is public discourse or expressing of a personal belief. Well, lots of people are wondering about the implications of this ruling. Adam emails, I don't understand conversion therapy. I'm a straight male, and I don't think I could be converted to being gay. Does it work both ways? And a member of our tax club writes, I don't understand how the Supreme Court can rule that states should control laws about abortion, but that states can't control other medical treatments.

19:26So, Shannon, what's your understanding of the implications this case could have for health care and even states' rights? Well, I just want to say I think, you know, Justice Jackson certainly got it right. It's so puzzling that the court was unable to see that this is not expressive speech. Yes, words are used, but it's to engage in treatment, and states do have the authority to regulate medical treatment. But notwithstanding that, it is encouraging that the focus of the majority opinion was very narrow. I mean, they really zeroed in on very specific aspects of Colorado's law that troubled them.

20:07And as someone who was involved in drafting that statute in the first place, I know that our intention was always to be neutral. I mean, the intention was always very much to prevent any type of treatment that's trying to force a predetermined outcome on a child with regard to sexual orientation or gender identity. And the intent was always that that certainly would apply either direction. direction it's just in the real world what we see is some therapist trying to pressure kids or promising that they can make a gay child not be gay or a transgender child not be transgender that's the real world problem we were responding to but it is it doesn't in any way undermine the purpose or the strength of the statute to make it very very clear that the same prohibition would apply in the other direction as well if there if there were a therapist who were trying to pressure a child to be gay or transgender, of course, we would want to prohibit that as well.

21:08So the encouraging thing here is that it should be pretty easy for Colorado and other states with similar laws to just make that very clear in the wording of the statute. I believe that would respond to the court's concerns, and that way these states can keep these very important protections on the books. Is that something that could happen before the lower courts issue their decision? Yes. The Colorado legislature has already introduced a bill that would go back and amend that statute in exactly that way. And I think there's a very good chance that that will pass and become law before the case is heard back at the lower court.

21:51I think the federal district court is going to want to see what happens with this legislation before they go through all the time and trouble of conducting a trial on the old law, which I think will likely soon be replaced. Well, we heard from this member of our tax club who writes, Red states are about to get dangerous if the court is going to allow non-medical politicians to dictate medical care not based on best practices and most current research. The Supreme Court is pursuing a dangerous ideology they were never intended to be able to legislate from the bench. And another member of the Tech Club writes, This ruling would give doctors and licensed professionals the freedom of speech to tell patients to use leeches to balance their humors or to chew on glass, overtaking antibiotics.

22:35Kevin, we heard from Shannon that he thinks the application of this decision is very narrow, and we're hearing some extreme examples there from our listeners. But what broader implications do you think this case could have for health care, especially when it comes to physician advice, LGBTQ issues or religious beliefs? Right. Well, Shannon's right. And the court, Justice Gorsuch, said it himself that this was a narrow decision. So there's no question about that. But I think it is actually broader in ways that people may not expect. And they may actually be heartening to some who oppose conversion therapy.

23:13And that is, as the concurrence Justice Kagan pointed out, as well as the majority in Justice Gorsuch, is it goes both ways in terms of laws that prohibit conversion, but also those that prohibit affirming talk therapy. So we have right now many conservative states that are trying to pursue restricting transgender care, puberty blockers, hormone therapy, surgeries. None, to my knowledge, thus far have tried to prohibit affirming talk therapy. But if they did, then it seems that this decision in Childs would be a major obstacle because the majority squarely addresses that this decision applies not just to conversion therapy, but any sorts of viewpoint-based attempt by the state to control what therapists are saying.

24:10So that might be a silver lining of this decision for those who are representing LGBT youth. Julia, what made you decide to focus on the intersection of faith, sexual orientation, gender identity in your work? Yes, so that went all the way back to when I was in college. I was at a small Catholic university in South Florida, and I had people in my life who were coming out to me as gay, or they would have said at the time, same-sex attracted. And they shared with me that they were pursuing ministries and therapies to change their orientation. and they really felt like God was asking that of them.

24:49And even all the way back then, I had questions about that. I had questions about what Christian churches have to say about attraction change. And I was really not convinced that on a spiritual level, attraction change was required of people for them to be spiritually healthy and whole. And so that really was a catalyst for me to seek out my doctorate at Regent University and study under a specialist, Dr. Mark Yarhouse, who's a clinical psychologist like myself, who specializes in sexuality, gender, and faith. And it was really there at Regent that I did extensive research in this area and really began to see some of the flawed assumptions underlying conversion therapy and also saw as a clinician the real ineffectiveness of that approach and the harm, like I've already mentioned, that came from it.

25:41Well, the plaintiff in the Supreme Court case treats both adults and minors. And Julia, when we're talking about minor children receiving therapy, how involved are parents in that process of deciding the therapy that child receives? Well, of course, parents are really instrumental and integral to treatment. I mean, Caitlin Ryan's a researcher in this area, and in her work, she really points out how key the parent-child relationship is to the well-being of LGBT youth. And so as a clinician, I'm always trying to involve parents. And many Christian parents have gotten the message that the only way to honor God with your sexuality is for you to be in a heterosexual relationship.

26:30And so for many of these parents, there's all kinds of fears about what will happen to their child spiritually, what will happen relationally. If they don't experience a change of attraction and in the realm of gender, parents are afraid of a therapist really pushing a transgender identity on a young person prematurely. So when I meet with these parents, they're very skeptical. They're very afraid. They really want to do right by their child. They're not malicious in their intent. And I can tell you that again and again, when I educate the parents on religiously accommodative approaches that take seriously their faith, take seriously these experiences and incorporate evidence-based treatments, they're really put at ease.

27:13They're not asking for conversion therapy once they understand that there are alternative approaches that exist in our field that can really be effective and also don't cause the same negative impacts that conversion therapy has. Shannon, you said Colorado is reworking their legislation. How are other states with conversion therapy restrictions on the books reacting to this decision? Very similarly, we see a lot of legislative activity with going back and amending the existing protections. And then there's new efforts to also strengthen malpractice protections for people who've been harmed by conversion therapy, particularly to give them more time to file a malpractice lawsuit.

28:03It's one of the worst harms that happens as a result of conversion therapy is young people tend to blame themselves when it fails. And it often takes them several years to realize that it wasn't they who failed, but that the therapy itself is harmful. So they need more time to bring a lawsuit. We're discussing the future of conversion therapy in the U.S. after the recent Supreme Court decision. We heard from Joshua, who emails, I am a survivor of conversion therapy as a teenager. It took me years to undo the harm done to my self-esteem, level of trust for mental health clinicians, and to repair the relationship with my parents who had forced me to undergo the conversion therapy.