WASHINGTON (CN) - The Supreme Court appeared likely Tuesday to strike down Colorado's ban on conversion therapy for minors, expressing concerns that the prohibition discriminated based on viewpoint.
"The medical consensus is usually very reasonable and it's very important, but have there been times when the medical consensus has been politicized," Justice Samuel Alito, a George W. Bush appointee, said.
Colorado and two dozen other states prohibited medical professionals from providing conversion therapy - a practice that attempts to change an individual's sexual orientation or gender identity.
Conversion therapy has been widely condemned by medical professionals as harmful and ineffective. The American Psychological Association and 13 other mental health and medical professional organizations say conversion therapy does not meet the criteria of a legitimate therapeutic treatment.
Kaley Chiles, a counselor at Deeper Stories Counseling in Colorado Springs, disagrees. She claims her minor clients have sought out faith-based counseling to reduce or eliminate unwanted sexual attractions or change sexual behaviors.
The conservative justices appear to think Chiles has a First Amendment right to provide such therapy. Justice Neil Gorsuch, a Donald Trump appointee, said that prevailing standards of care can and have changed in the past, citing the now-discredited claim that homosexuality is a mental illness.
Gorsuch asked whether states could pass a mirror image statute to Colorado's ban prohibiting any attempt to affirm changes to gender identity or sexual orientation.
"Even in cases where medical uncertainty exists, you think that the state could pass such a law prohibiting ex ante speech that would affirm gender identity changes or sexual orientation changes or homosexuality?" Gorsuch asked Colorado.
Chiles rejected Colorado and the medical associations' view of the science, relying instead on studies suggesting that gender-affirming care can have negative consequences. She cited the controversial Cass Review - a UK study that has been used to justify prohibitions on gender-affirming care, including at the Supreme Court. Yale researchers claim the Cass Review ignored established standards for evaluating evidence and misinterpreted and misrepresented its own data.
Colorado says states have regulated health care practices for centuries, stating that patients expected licensed professionals to provide a high standard of care. The state argued that the First Amendment has never barred states' ability to prohibit substandard care.
Shannon Stevenson, Colorado's solicitor general, said that the state doesn't enforce the law unless a patient files a complaint with the medical licensing board. Chiles hasn't been prosecuted under the law, instead bringing a pre-enforcement challenge.
Stevenson said that states pass laws like Colorado's conversion therapy ban when harmful practices persist despite medical expertise. Colorado also bars medical doctors from prescribing anabolic steroids for sports performance.
"Normally something like that might die out, but you can understand why there are cultural pressures that make [steroids] continue to be interesting to people - even when they know there's harm," Stevenson said. "This has been the problem with conversion therapy. Although every theory that it's relied on has been debunked and debunked and debunked, people continue to seek it out."
The lower courts upheld Colorado's law under rational basis review. Chiles argued that strict scrutiny - a more tenuous standard - needed to be applied. She claimed that Colorado couldn't provide evidence that minors seeking conversion therapy were harmed by the practice.
Justice Sonia Sotomayor, a Barack Obama appointee, questioned why the state needed to prove that talk therapy specifically was harmful, comparing the ban to medical standards that dietitians don't encourage anorexic patients to engage in more restrictive eating.
"In that hypothetical, the counselor or dietitian is telling the client to do something that directly harms their body," said James Campbell, an attorney with the Alliance Defending Freedom representing Chiles. "In this case, Ms. Chiles is trying to help gender-dysphoric kids."
"That begs the question," Sotomayor responded, "because there are studies that say that this advice does harm the child."
In June, the justices allowed Tennessee to ban gender-affirming hormone therapy for minors based on the state's view of related medical expertise. Justice Ketanji Brown Jackson, a Joe Biden appointee, asked whether it would be incongruent to bar Colorado from enacting its law.
"I'm wondering why this regulation at issue here isn't really just the functional equivalent of Skrmetti," Jackson said. "I realize that there were two different constitutional provisions at issue, but the regulations work in basically the same way and the question of scrutiny applies in both contexts. So it just seems odd to me that we might have a different result here."
Source: Courthouse News Service
