The US Supreme Court Needs to Uphold Conversion Therapy Bans
The court recently agreed to review the case of Chiles v Salazar, which asks whether conversion therapy bans are unconstitutional violations of free speech. They are not.
On a dull autumn day in 1964, Carolyn Mercer was strapped to a wooden chair in a dark room, and electrodes were placed on her arm. Doctors projected pictures of women’s clothing on the screen in front of her and sent painful electric shocks into her arm with each picture. The treatment went on for months. The doctors hoped that if Carolyn associated femininity with pain, she would be “cured” of being transgender. They were wrong. She developed PTSD and the treatment threw her into a deep depression. She later told the BBC, “I don’t have a light anymore, or emotion like that, because I suppressed it for so long.”
Last week, the U.S. Supreme Court announced it will review the case of Chiles v. Salazar, in which a therapist from Colorado claims that her state’s ban on conversion therapies for minors (attempts to force LGBT youth to be cisgender and heterosexual) violates the first amendment. The court should rule against the therapist. As a pediatric psychiatrist who cares for LGBT youth, I can tell you that any other decision puts kids at unacceptable risk. Though the case is focused on Colorado, the court’s decision could bring the dangerous practice of conversion therapy back to the half of country that has worked to eliminate it.
Free speech is a foundational right in the United States. However, it is not absolute. The U.S. Supreme Court has long held that there are instances in which the government is justified in restricting speech. It has set up a three-level framework for evaluating when government restriction on speech is justified. The most stringent level, strict scrutiny, requires that a law meet two criteria: (1) that it achieve a compelling government interest and (2) that it be narrowly tailored to achieve that goal. Those defending the law have argued that a lower level of judicial scrutiny is more appropriate, given that states commonly need to restrict speech that is incidental to professional conduct, so that it can regulate professions like therapy, medicine, and law. However, conversion therapy bans meet even strict scrutiny.
I can think of no more compelling government interest than protecting young people from a practice that is associated with a doubling of one’s risk of attempting suicide. This association with suicide attempts has been shown both when you try to change a person’s sexual orientation and when you try to change a person’s gender identity. Every major medical organization opposes these practices, including The American Medical Association, The American Psychiatric Association, The American Academy of Pediatrics, and The American Academy of Child & Adolescent Psychiatry. The United Nations has called for an end to the practice worldwide. The practice also disproportionately impacts transgender people and racial minorities, exacerbating mental health disparities experienced by these groups. A study in the journal JAMA Pediatrics found that this dangerous practice also costs the U.S. over $9 billion a year.
As challenges to conversion therapy bans have moved their way through the federal courts, there have been arguments regarding what it means for a conversion therapy ban to be sufficiently “narrowly tailored” to achieve the government’s interest in protecting young people. The Ninth and Third circuits have upheld that their states’ bans on conversion therapy were not unconstitutionally broad. They emphasized that such bans only impact speech incidental to professional conduct, and that one can still express their views on conversion efforts in the media or other public spaces. They explained that states have a vital interest in regulating professional speech. As an analogy, a state must be able to take away a doctor’s license if they tell a patient to drink arsenic.
The Eleventh Circuit, in its decision for the case Otto v Boca Raton, ruled that two Florida bans were unconstitutional because aversive (e.g., shock) conversion therapies were not as well studied as non-aversive (e.g., talk) conversion therapies. The court argued that because the bans barred all conversion practices, they were not sufficiently narrowly tailored. The problem here is that one could infinitely define narrower and narrower subsets of conversion therapies to create an unattainable scientific bar. Such an approach would result in preventing states from regulating any dangerous practice. Banning practices that attempt to force a change in sexual orientation or gender identity is a clear line. It is the one that has been drawn by every major medical and mental health organization, and by the United Nations.
LGBT people are facing an unprecedented volume of attacks in America today. The group supporting the challenge to Colorado’s law, The Alliance Defending Freedom, has played a consistent role in these attacks. It is the same firm that has attacked marriage equality and employment non-discrimination protections for LGBT people. It also happens to be the law firm behind the recent Dobbs decision that overturned Roe v Wade. While they claim this is a case about protecting free speech, it falls squarely within their broader history of attacking LGBT rights.
As the court wades into the technicalities of first amendment jurisprudence, I urge it to not lose sight of what this case is really about: protecting vulnerable kids from dangerous practices. Young people deserve to be protected from the practice that left Carolyn Mercer to pronounce, “I don’t have a light anymore.”
Jack Turban MD (@jack_turban) is a pediatric psychiatrist and author of the book Free to Be: Understanding Kids & Gender Identity.