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WASHINGTON − One side brought up the psychological scars carried by gay people who were subject to “conversion therapy.”
The other argued states can’t “censor” conversations between therapists and patients struggling with same-sex attraction or gender identity.
As the Supreme Court on Oct. 7 debated whether Colorado can prevent mental health professionals from trying to change a minor’s sexual orientation or gender identity, a majority of the justices seemed sympathetic to a counselor’s claim that the ban violates her free speech rights.
Because major medical groups have repudiated conversion therapy as ineffective and harmful, Colorado argues it’s merely making health care professionals follow proper standards of care.
But Kaley Chiles, the Colorado counselor whose First Amendment challenge to the state’s law has the support of the Justice Department, said there’s no good evidence that the kind of talk therapy she wants to do is problematic.
And some of the justices seemed persuaded by her argument that, under Colorado's restrictions, she can help young people embrace a transgender identity but not help them grow comfortable with the body they were born with.
“Looks like blatant viewpoint discrimination,” said Justice Samuel Alito.
Here are takeaways from the arguments.
Supreme Court unlikely to dismiss case for lack of harm to therapist
One question going into the oral arguments was whether Chiles had been affected enough by the law to be able to challenge it, a legal technicality known as “standing.”
Justice Sonia Sotomayor pointed out that Colorado officials have said Chiles’ description of her counseling doesn’t violate the ban.
But her attorney, Jim Campbell, said the state is “misreading” its statute. In fact, he said, Chiles is currently being investigated because of anonymous complaints made in the last few weeks.
And when Colorado state attorney Shannon Stevenson was questioned by the justices, she was asked about Chiles’ desire to help clients who want to “change their behaviors, expressions, attractions and identity.”
Trying to change someone’s identity would violate the ban, Stevenson said.
“That settles the standing question,” Sotomayor said.
Court urged by therapist, Justice Department to move fast
A majority of the court seemed to believe that Colorado’s ban should be subject to a higher level of review than the standard used by the lower courts who first heard Chiles' challenge.
If that’s how the justices rule, they could apply that higher standard themselves − or they could send the case back to the lower courts.
Hashim Mooppan, the Justice Department attorney who argued against Colorado's ban, said the Supreme Court should resolve the case itself because the evidence is clear that the Colorado law “can’t satisfy” the court’s review.
“There is ongoing irreparable harm" to Chiles, Mooppan said.
More importantly, there’s also ongoing harm to kids struggling with gender dysphoria who want the kind of counseling Chiles can provide, her attorney said.
Lawyers spar over whether conversion therapy is effective
Justice Amy Coney Barrett asked Colorado's lawyer for a summary of the alleged harm conversion therapy causes, sparking a dispute between lawyers for the state and Chiles.
Stevenson, Colorado's solicitor general, said 100 years of research found no support for it. She cited a couple of recent studies, including one of 34,000 people who were 13 to 25 years old and who had gone through conversion therapy, which found twice the rate of suicide attempts.
“People have been trying to do conversion therapy for 100 years with no record of success,” Stevenson said. “The harm from it comes not from the aversive practice. It comes from telling someone there is something innate about yourself you can change, and then you spend all kinds of time an effort to do that and you fail.”
But Campbell disputed the results by arguing the studies didn’t focus on licensed therapists and didn’t demonstrate that counseling caused the suicidal thoughts.
“All of those studies relied on bias sampling, self reporting,” Campbell said.
Justice Barrett: What if states disagree over treatment?
Barrett also asked whether states can "pick a side" about the proper standard of care.
Stevenson said there is no dispute about the standard of care because no medical experts stepped forward to support conversion therapy − which means there's no other view being suppressed.
“The state can show we’re regulating a treatment and we’re regulating consistent with the standard of care,” Stevenson said. “There is a confirmation, a security that the court can have that there is no other motive going on to suppress viewpoints or expression.”
Barrett said there could be a dispute about treatment.
“I think you could have that,” Barrett said. “In my hypothetical, I’m saying there might be a dispute in the medical community.”
Will medical standards become politicized?
Justice Alito raised the issue of medical standards becoming politicized.
He said Colorado’s argument depends very heavily on standards of care but questioned whether medical consensus can be “taken over by ideology.”
Stevenson, Colorado’s solicitor general, said there are “no facts” about that happening in this case.
But the Justice Department’s attorney supporting Chiles' challenge said Colorado’s defense is undercut by the fact that the the medical community has changed its position on homosexuality.
As recently as the 1970s, it was the professional consensus that being gay was a mental illness, Mooppan said.
Under Colorado’s logic, he said, states in the 1970s could have made it illegal to counsel someone that it was OK to be gay.
The American Psychiatric Association declassified homosexuality as a mental illness in 1973.
Justice Kagan's cholesterol test
Justice Elena Kagan said nobody wants to reduce the liability or professional sanctions that doctors face “for giving utterly wrong medical advice.” She questioned how the First Amendment could protect bad advice.
“If the doctor said you could lower your cholesterol by going out and eating dessert every meal, we would think that was not a good thing for a doctor to say,” Kagan said. “We wouldn’t say the First Amendment has something to do with this.”
Stevenson agreed, saying states have to regulate bad practices because they sometimes persist. She cited doctors prescribing anabolic steroids to athletes or psychotherapists during the 1990s who spurred the recovery of false memories of sexual abuse, a practice that largely died out.
“If it hadn’t and therapists had continued to do it – and again, it was done only with words – surely a state could step in and say, ‘That’s unprofessional conduct,’” Stevenson said. “That’s exactly what Colorado and 25 other states have done here.”
Justice Department sides with counselor
The U.S. Department of Justice under President Donald Trump submitted a brief in the Colorado case arguing that the Colorado law should face a high constitutional hurdle. The DOJ said it chose to speak up in the case, which doesn't directly involve the federal government, because it has a "substantial interest" in protecting free expression while still preserving authorities' ability to regulate conduct.
"Colorado is muzzling one side of an ongoing debate in the mental-health community about how to discuss questions of gender and sexuality with children," according to the brief. "Under the First Amendment, the State bears a heavy burden to justify that content-based restriction on protected speech."
At the Oct. 7 arguments, a Justice Department lawyer made the case in person for why the justices should closely scrutinize Colorado's ban. He said history is not on Colorado's side when it comes to banning this type of talk therapy.
"There is no long-standing tradition of states imposing this type of categorical prior restraint on the speech of therapists," according to Mooppan.
Comparisons made to Tennessee transgender case
Justice Ketanji Brown Jackson questioned whether Colorado's ban is similar to a Tennessee law the court upheld in June that bans treatments like puberty blockers and cross-sex hormones for children. Both laws involve states regulating care for children expressing distress about gender or biological sex, she said.
But in the Tennessee case, the Justice Department under President Trump backed the constitutionality of the ban. In the Colorado case, the DOJ is saying the ban is unconstitutional.
"I'm just, from a very, very broad perspective, concerned about making sure that we have equivalence with respect to these things," Jackson told Mooppan, the Justice Department lawyer.
Mooppan responded that the cases are different in a crucial way: Colorado's ban targets talk talk therapy, which Mooppan argued has free speech protections, whereas the Tennessee ban targeted medical care.
"Well, from a very broad perspective, there shouldn't be equivalence, because obviously we have a First Amendment," Mooppan said.
This article originally appeared on USA TODAY: Supreme Court skeptical of Colorado's ban on conversion therapy. Key takeaways.
Reporting by Maureen Groppe, Bart Jansen and Aysha Bagchi, USA TODAY / USA TODAY
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