Conversion therapy: Free speech or quackery?

“Driven by culture-war concerns over gender and sexual orientation,” the conservative justices are clearly eager to reverse this ban.

(Image credit: Andrew Caballero-Reynolds / Getty Images)

The Supreme Court thinks licensed therapists should be free to tell gay kids they can and should become straight, said Elie Mystal in The Nation. The justices recently heard arguments in Chiles v. Salazar, in which evangelical Christian therapist Kaley Chiles contended Colorado’s “conversion therapy” ban for minors violates her free speech rights. Multiple studies have found that conversion therapy, which is counseling aimed at changing sexual orientation or gender identity, doesn’t work, and actually worsens depression and trauma. It’s a form of “child abuse” that’s “not regarded as a medically sound practice by any panel of scientific experts.” But the court’s Christian theocrats appeared ready to overturn Colorado’s ban, with Justice Samuel Alito calling it “blatant viewpoint discrimination.” If Chiles were a minister, priest, or parent, she would be free to try to talk minors out of their sexual identities. But Chiles is licensed by the state, so her therapeutic work has “the imprimatur of authority”—and thus should meet state standards for safe, effective care.

Actually, Colorado’s ban is “a flagrant violation of the First Amendment,” said National Review in an editorial. Under state law, therapists “may only promote gender transition and homosexuality; they are not allowed to speak against either.” That’s an abuse of state regulatory power. Imagine if the facts were reversed, said Elizabeth Nolan Brown in Reason. What if a red state banned therapists from affirming gay patients’ sexuality? That would constitute “an affront to the First Amendment.” Conversion therapy bans should be opposed for the same reason. You can abhor the practice, but it’s unconstitutional “to use government power to stop anyone from engaging in this sort of talk therapy.”

Regulating medical care is different from regulating speech, said Noah Feldman in Bloomberg. Yes, talk therapy is “accomplished through words,” but a licensed therapist must still operate inside professional boundaries. The only way to resist the dangerous “politicization of health-care regulation” is by insisting on medical evidence. That’s why more than 20 states have banned conversion therapy, including eight with Republican governors. Sadly, “driven by culture-war concerns over gender and sexual orientation,” the conservative justices are clearly eager to reverse this ban. That would undermine regulations on many professions, including lawyers, accountants, and financial advisers. If quackery like conversion therapy is free speech that can’t be regulated, “what isn’t?”