I don’t know about so-called “war-ravaged” Portland, where Donald Trump wants to send in the National Guard to basically quell dissent — you know, the kind protected by the First Amendment.
But I do know the country is once again culture-war-ravaged, and as hard as Colorado tries to do the right thing, it looks like Trump’s foot soldiers on the U.S. Supreme Court will trample all over the Colorado law banning licensed therapists from practicing long-discredited gender “conversion therapy.”
And when they vote to bar, or at minimum, weaken Colorado’s ban, they’ll do it in the name of — naturally — the First Amendment. The official ruling probably won’t come until June. But it’s clear from arguments before the court Tuesday that the Colorado law is cooked, and that Colorado Springs therapist Kaley Chiles, who says “people flourish when they live consistently with God’s design, including their biological sex,” will win out.
Which probably means that when the ruling comes, states across the country will no longer be allowed to bar mental health professionals from using talk therapy to attempt to change a minor’s sexual orientation or gender identity.
It isn’t just Colorado law, of course, that will be trampled. The law, passed in 2019, bars “treatment” to change a minor’s “gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.”
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Nearly 30 states now ban such therapy, which virtually every medical and mental health organization sees as both harmful and ineffective.
Chiles’ lawyers argued Tuesday that it’s unconstitutional for state law to allow therapists to affirm minors’ sexual orientation but not to allow therapists to counsel those minors who are dealing with such issues.
State Attorney General Phil Weiser, who went to Washington, said it’s not about free speech but about the state ensuring proper medical treatment.
Justice Sam Alito wasn’t convinced by Weiser. He said a ban on voluntary talk therapy “looks like blatant viewpoint discrimination.”
But is it really viewpoint discrimination, or is it a determination, guided by the best science, that says that conversion therapy can do serious harm to their minor-age clients?
Does it sound like the court has any interest in the medical playbook that says “first, do no harm”?
Or is it the politics of today? One of Trump’s major closing arguments in the 2024 presidential election was in his opposition to transgender people playing sports on women’s teams. And another is the continuing argument about who gets to use which bathroom.
Starting in about 2012, back in the pre-Trump era, there was broad consensus on the notion that conversion therapy was harmful. Since then, even eight Republican governors have signed laws similar to the one that Colorado passed. And when Utah’s one-time Gov. Gary Herbert approved the law — now officially codified by a unanimous vote of the legislature — he said, “The stories of youth who have endured these so-called therapies are heart-rending.”
In that period, shock treatments were often being used as part of conversion therapy. But talk therapy, the research tells us, has its own harms.
It isn’t just the states that would be harmed. It’s the kids, dammit. Remember the kids? Doctors do. Conversion therapy is designed to, uh, convert gay and transgender minors back to, you know, normal kids, where boys play football and girls, I guess, are cheerleaders. Any gender stereotype will apparently do.
The American Medical Association, just as one example among many, says conversion therapy has “no foundation as scientifically valid medical care” and poses a risk of “deliberate harm.” The American Psychological Association describes the risk of harm as “significant” and points out that the therapy does not work.
Under the law, your minister or your best friend or your parents or your next door neighbor or someone you’ve met on Roblox or just walking down the street can try to convince you that being gay or transgender is a religious issue — and that you’re offending God’s will.
But a licensed therapist, under Colorado law, cannot. A licensed therapist must follow the science that therapy for minors can be harmful.
And it’s not just the kids at risk.
It’s the very idea — as an article in Vox provocatively asks — of whether medical expertise actually exists. If you listened to the arguments before the Supreme Court on Tuesday, several justices wondered aloud about whether we can trust medical science.
Justice Neil Gorsuch pointed out that until 1973, homosexuality was considered a “disorder” by the mental health community. He asked Colorado Solicitor General Shannon Stevenson, who was arguing Colorado’s case, whether states couldn’t have banned gender-affirming practice by licensed officials back then.
She conceded that they could have — and agreed that the medical consensus has not always been right. Gorsuch had pointed to the Supreme Court decision upholding forced sterilization laws for those considered “feeble-minded” back in the 1920s, with the court ruling that “three generations of imbeciles are enough.”
I took that to mean that the court is not exactly perfect, and that science, as well as the political culture, as well as the court, can correct itself. Stevenson argued, correctly, that people “have been trying to do conversion therapy for 100 years with no record of success.”
But today we have an administration that’s sufficiently anti-science that it might well have agreed with the “imbecile” argument. We certainly have a new conservative position, in which RFK Jr., with Trump’s encouragement, says he knows more about the dangers of vaccines than those who have spent a lifetime studying them and who have saved millions of lives in the process.
And where does the court stand?
When the rights of LGBTQ Americans come up against the rights of conservative Christians, we know who nearly always wins in this 6-3 ultra-conservative Supreme Court.
You may remember the Masterpiece Cake case, in which the master baker, who called himself an artist, said that free speech allowed him to refuse to make a cake celebrating a gay marriage. The Supreme Court didn’t exactly rule for him. But it did not uphold the rights of gays, a protected group by civil rights law, to walk into a bakery and order a cake. It blamed the Colorado Civil Rights commission for being biased — and not the baker who can still refuse to make a wedding cake for a gay couple.
The challenge to Colorado’s law on conversion therapy was the first case of the Supreme Court’s new term. For a change, we got to hear a full case and not one on the emergency docket, in which the court has nearly always ruled — temporarily, at least — for Trump. But I”m not sure that Trump will fare much worse arguing before the full court.
Look for the harm.
More cases on gay and transgender rights are coming this term, including whether states can legally ban transgender athletes from playing on girls’ and women’s sports teams at high schools and universities.
The court recently ruled that Tennessee could ban gender-transition treatment for minors. It ruled that parents could pull their children from public school lessons using storybooks on gay and transgender themes.
It’s not just jack-booted thugs in camo doing the damage in the culture wars, but also Trump-aligned justices in their flowing black robes.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow. Sign up for Mike’s newsletter.
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