Restrictions on clinician participation have expanded the public\u2019s understanding of the harms the practice causes, according to Marie-Am\u00e9lie George, a professor and historian of LGBTQ+ rights at Wake Forest University School of Law.\u00a0<\/p>\n
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\t\t\t\t\t\tNew federal report on care for transgender youth contradicts medical groups\u2019 guidance<\/a><\/p>\n \u201cIt seemed like a way to publicize how dangerous this could be,\u201d George said about the wave of legislation over the last decade, \u201cso that parents who were looking into potentially doing this could have a better sense of what effect it could have on their child.\u201d<\/p>\n Licensed counselor Kaley Chiles brought her case to federal court in 2022, arguing that the Colorado law is a \u201cviewpoint-based speech restriction\u201d that violates her First Amendment right to free speech as someone who views her work as \u201can outgrowth of her Christian faith,\u201d according to court documents.\u00a0<\/p>\n A federal court denied her request for a preliminary injunction, and an appeals court affirmed that decision. But another federal appeals court struck down<\/a> a similar ban in Boca Raton and Palm Beach Country, Fla., leading to what experts call a circuit split. The Supreme Court is tasked with unifying the rulings.\u00a0<\/p>\n What to watch for<\/p>\n Tuesday\u2019s arguments will likely revolve around the breadth of the law and whether a therapist\u2019s conversations with clients are constitutionally protected speech or professional conduct subject to regulation, experts said.\u00a0<\/p>\n There\u2019s strong disagreement between the parties about the meaning of the actual text in Colorado\u2019s law. In court documents, Chiles argues that the law only allows her to speak openly with transgender clients \u201cif she helps them embrace a transgender identity\u201d and not \u201cif those clients choose to align their sense of identity with their sex by growing comfortable with their bodies.\u201d But supporters of the ban say that interpretation mischaracterizes the law. Colorado\u2019s ban<\/a> specifically describes conversion therapy as concerted efforts to change a person\u2019s sexual orientation or gender identity \u2014 meaning that there\u2019s nothing stopping a therapist from hearing and responding to a young client\u2019s curiosity or concern in either direction.\u00a0<\/p>\n \u201cI would not be surprised for that to be a significant focus of the argument,\u201d Minter said.<\/p>\n The Supreme Court\u2019s recent decision<\/a> in L.W. v. Skrmetti, upholding a Tennessee ban on gender-affirming care for youth, may also play a key role in the arguments.\u00a0<\/p>\n \u201cIf they\u2019re going to be consistent and fair and intellectually honest, Skrmetti should essentially decide this case for them,\u201d Minter said. \u201cThe issues are almost completely identical, right? Do states have the authority to restrict the type of medical care \u2014 here, mental health treatment \u2014 where they deem the risks to outweigh the benefits.\u201d\u00a0<\/p>\n There are important differences between the cases, however. Tennessee\u2019s ban targeted medical interventions such as hormones, while the way clinicians talk with their clients is the core issue here. Professional medical groups in the U.S. support gender-affirming medical care, but have long opposed any type of conversion therapy.<\/p>\n In an amicus brief<\/a> supporting Chiles, the Trump administration wrote that there is not \u201crequisite evidence\u201d on the harms of talk therapy conversion practices or the benefits of gender-affirming therapy. The brief also cites the former designation of homosexuality as a mental disorder and historical involuntary sterilization of disabled people as evidence of \u201cthe dangers of relying on the consensus views of professional organizations to dictate what professionals may lawfully say.\u201d<\/p>\n Like the Skrmetti case<\/a>, Chiles v. Salazar on its surface focuses on LGBTQ+ health, but experts say everyone will be affected by the decision. \u201cThere are so many other things tied up into these cases that we kind of overlook because we\u2019re focused very strongly on the topic area, which is conversion therapy and LGBTQ health,\u201d said Tara McKay, director of the LGBTQ+ Policy Lab at Vanderbilt College. \u201cWhich I obviously think is phenomenally important, but the cases themselves are about so much more than this, and have so many more implications.\u201d<\/p>\n Potential impact on health care regulation\u00a0<\/p>\n States, of course, have other laws that restrict medical care: 12 states have total abortion bans on the books, while 29 have bans<\/a> starting somewhere between 6 and 24 weeks of gestation. About half<\/a> of states ban gender-affirming medication and surgery for trans minors. But these laws are largely driven by political and religious views, according to Nicole Huberfeld, a professor at Boston University School of Law who studies the intersection of health and constitutional law, while Colorado\u2019s ban on conversion therapy is based on concerns about safety and effectiveness.<\/p>\n \u201cWhat you have is competing visions of how states regulate medicine and whether regulation of medicine should be solely evidence-based or not,\u201d she said.\u00a0<\/p>\n If the Supreme Court rules that the law violates a clinician\u2019s right to free speech, legal experts who support Colorado\u2019s position said that, at the very least, it could create confusion for medical professionals about what the standard of care is. And some worry that the case could serve as a legal precedent for clinicians who say something that ultimately harms a patient \u2014 Minter specifically worried about clinicians making inappropriate sexual advances toward patients \u2014 and want to claim free speech as their defense.\u00a0<\/p>\n An amicus brief<\/a> from a group of health law scholars points out that there are numerous laws related to medical licensure that ultimately limit speech in the name of proper, legal care. And since talking is inherent to psychotherapy in particular, it\u2019s unclear if any state law governing the practice could still be considered legal if the court sides with Chiles, the scholars write.\u00a0<\/p>\n \u201cCarving out a free speech exception for any type of care that is composed of verbal communication, that would be a radical shift in the law,\u201d Minter said. \u201cIf the Court were to go down that path, it would really lead to, probably, massive deregulation of medical care and leave consumers very vulnerable to harm and mistreatment.\u201d\u00a0<\/p>\n Chiles\u2019 supporters disagree. In 2018, the Supreme Court determined that professional speech can be regulated when it is incidental<\/a> to conduct. (For example: A \u201cwhites only\u201d sign is speech that can be regulated as it\u2019s incidental to the core discriminatory practice of racial segregation.) Chiles\u2019 lawyers argue in court documents<\/a> that a therapist\u2019s conversations with clients are neither conduct nor incidental to conduct, so those possibilities for regulation would not be affected by a ruling in favor of their client.\u00a0<\/p>\n How LGBTQ+ people could be affected<\/p>\n For LGBTQ+ people, the most pertinent implications of the case may not lie with the legality of conversion therapy itself, but with what the case says about the community\u2019s civil rights as a whole.<\/p>\n \u201cWhere do the civil rights protections for LGBTQ+ people end and then civil rights protections for people freely exercising religion or seeking freedom of expression begin?\u201d Huberfeld said. \u201cThat tension has been playing out in the courts for years.\u201d\u00a0<\/p>\n The question was left open in the Supreme Court\u2019s 2015 Obergefell ruling that legalized same-sex marriage; the decision acknowledged that LGBTQ+ couples\u2019 fundamental right to marriage could come into conflict with another person\u2019s free exercise of religion. And it has: There was the baker who refused to make a wedding cake for a gay couple, then the website designer who didn\u2019t want to build wedding websites for gay couples. Each time, the Supreme Court ruled for the business. \u201cThey have been trying to limit anti-discrimination laws\u2019 reach by making speech and religion claims,\u201d Huberfeld said. Now, the battle has come to health care.\u00a0<\/p>\n Chiles\u2019 legal team proposes alternative restrictions on \u201cconduct-based\u201d conversion therapy techniques, such as \u201crebirthing,\u201d where a child is restrained in a reenactment of the birth experience.<\/p>\n Conversion therapy is most often conducted by religious leaders, and usually so discreetly that it\u2019s difficult to say how widespread the practice is across the U.S. In 2023, the Trevor Project identified<\/a> more than 1,300 practitioners across the country, including more than 600 who held active professional licenses.\u00a0<\/p>\n Advocates for LGBTQ+ rights worry that a Supreme Court decision in favor of the therapist will jeopardize the safety of young people who could be subjected to conversion therapy by licensed medical professionals. If the law is struck down, however, it doesn\u2019t mean many clinicians would start attempting conversion therapy. Nor is there any evidence that health insurance companies would pay for it.\u00a0<\/p>\n A ruling in favor of Chiles could also lead to confusion for parents trying to distinguish what is evidence-based health care and what isn\u2019t, said the advocates. Existing groups attempting to change a person\u2019s sexual or gender identity often adopt the same therapy-speak buzzwords used by genuinely affirming providers, they said. When the Trump administration released its controversial report<\/a> on gender dysphoria in May, it emphasized the potential for more \u201cexploratory psychotherapy,\u201d which many recognized as a pseudonym<\/a> for conversion therapy.<\/p>\n