SCOTUS Not Cool With Colorado Ban on Conversion Therapy

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Welcome back to Strix Grootney, your podcast about the Supreme Court and the legal culture that's

around it. I am your regular host for today's emergency episode, Leo Littman. Happy trans day of

visibility, everyone. The Supreme Court just declared that it is viewpoint discrimination

to affirm transgender individuals' existence and not deny an individual's gender identity.

Yes, we got the Supreme Court's opinion in trials versus Salazar, the case challenging Colorado's

ban on conversion therapy. And here to discuss this case with me is Shannon Minter, legal director

at the National Center for LGBTQ rights. Shannon, thanks so much for joining and welcome to Strix

Grootney. Thanks, Leah. A quick preview of what we're going to try to cover in this short episode.

The court held that the Colorado law as applied to the particular mental health professional in

the case that's professional in air quotes triggered Strix Grootney, the most demanding form of

review. And therefore, the law needs to be evaluated by the lower courts, according to that standard.

The decision is 8-1 written by Neil Gorsuch, hero of the LGBT community himself. Justice Jackson

was alone to center. Justice Kagan wrote a concurrence together with Justice Sochemayora to explain her

view. We'll talk about that. Don't worry. But more generally, we're going to explain what the court

did say and what they didn't say and why it's still concerning. And in my view reflects a real

anti-transvent. Okay, Shannon, first up, just basics. What is the Colorado law that was at issue

in this case? It's just a very straightforward law that says that state licensed mental health

providers cannot subject a minor patient to therapeutic interventions that are attempting to

change the minor sexual orientation or gender identity. That's it. Yeah, that is a straight-up

ban. And as you say, it's part of a licensing regime for medical professionals. So it's not even

like this law is going to haul people off to jail. So what was the specific challenge that the

plaintiff brought to this law? It's based on a very crude and yet it's a crude version of the first

amendment that the Supreme Court just endorsed 8-1 is that because what she is doing or wishes to do

consists of so-called talk therapy, that any regulation of the treatment that she can provide

is a regulation of speech. And that in her view, there's something about this law that is

less than even handed that says it's okay to support a young person for being gay and transgender,

but that you can't try to dissuade them from being gay or transgender. I think it's

complete misreading of the law, but it's one that a justice is the Supreme Court just endorsed.

And they're like, yeah, this is talk therapy. That speech, you're restricting speech. Therefore,

we're going to apply strict scrutiny. We are going to complicate that in a bit. But first,

I just want to carve out that this was what's known as an as-applied challenge. That is, the plaintiff

was only challenging certain applications or certain uses of the law and maintained and the court

accepted that she was not challenging portions of the law that banned so-called evulsive therapies

like physical interventions or medications. She was challenging her allegations to the extent

the law permits her to speak in ways that encourage or affirm an individual's gender identity

or sexual orientation, but doesn't allow her to encourage an individual to deny their gender

identity or sexual orientation. That was her theory of what was unconstitutional about the law.

Okay. So, Shannon, you mentioned the court's version, crude version of the First Amendment. So,

let's walk through what the court held. And the primary holding in the case is about the

appropriate standard of review. So, could you just tell us what the court decided there?

Yeah. So, the court said that in so far as this law restricts Kayleigh Child's ability to engage

in so-called top therapy that's trying to dissuade a young person from being gay or transgender,

that that is viewpoint discrimination. And, you know, just under boilerplate for some

immigrant doctrine, therefore triggers strict scrutiny. I mean, they didn't strike the law

down. They argued in Colorado a chance to go back and see if they can meet that standard.

Exactly. So, what the court held is the law's subject to strict scrutiny. Now, of course,

strict scrutiny is the most demanding standard of review. It remains for the lower courts to apply

that standard. And I think it's fair to say the majority opinion kind of strongly suggests that

they think it's unconstitutional, but, you know, formally that has yet to be decided. Okay.

So, let's walk through why the majority said this law triggers strict scrutiny. Could you

kind of introduce us to some of the reasoning, such as it is? Yes. Yes. I mean, it's very frustrating.

I must say, you know, someone very involved in helping to draft these laws and believe me,

we went to great lengths to ensure that they are not, that they are even handed, but the court

seized on certain language in this in this statute and took it out of context and read it as

suggesting that the law is saying that it is okay to support or affirm, although the word

affirm appears nowhere in the statute does not appear in the statute. This is what we call

textualism Shannon, right? This is textualism prime, textualism 2.0. The words they aren't there,

we're just going to say they're there. Yeah, very intuitive textualism. Exactly. So, yeah,

the court says, well, we're reading this statute to say that you can support a firm sort of

endorse a young person for being a gay or transgender, but you cannot do the opposite.

Therefore, it favors the one, the affirming viewpoint over the anti-affirming viewpoint,

all of which betrays the completeness understanding of therapy, a disregard for the words in the

statute, but there you have it. Okay, so let's just unpack those steps and as you were alluding to,

the first step is the court's conclusion that this law regulates speech or in the court's words,

you know, the spoken word, the quintessential form of protected speech. And from there, the court

then goes on to say the law represents something known as content discrimination and also viewpoint

discrimination, both of which are disfavored when a law regulates speech. So, as to content

discrimination, the court said Colorado seeks to regulate what mischiles, you know, the therapist

says. And similarly on viewpoint discrimination, as you say, the court says the law allows the

therapist to express acceptance, support of gender identity and sexual orientation, but doesn't

allow her to express support for someone denying their gender identity or sexual orientation.

Okay, so you mentioned these steps have a lot of problems. So, which step do you want to start at,

Shannon? Well, good lord. Okay, yeah, where to begin. I mean, the whole, I think there's some

strategic ambiguity in this decision about whether the majority opinion is squarely based on

a content discrimination theory or viewpoint discrimination. The majority opinion talks about

content discrimination, but then there's a concurring opinion by Justice Kagan joined by Justice Sotomayor

that suggests that know that the real problem is viewpoint discrimination. So, that's kind of

interesting and leaves the door open, I think, for potentially being rewriting these statutes in a

way that might not trigger strict scrutiny. So, that was interesting. But look, the language that

the court is reading about that it's okay to engage in treatment that is about supporting a young

person identity development, there's nothing at all on the face of the statute that says that

that wouldn't apply equally to a young person who's saying, you know, I have real conflicts about

being gay or transgender. That really conflicts with my religious beliefs. There is nothing in this

statute that prohibits the therapist from working with such a young person, as long as the therapist

is not trying to impose a predetermined outcome or identity on that young person. And, I mean,

that's why, you know, it just so happens, the bitter irony here is Dr. Julius Adusky, who is one of the

leading therapists in the country who she herself is a very conservative Catholic therapist.

She has pioneered a way of working with LGBT young people from conservative religious families

that does not seek to impose a predetermined outcome on them that is not conversion therapy. She

filed an incredibly powerful anarchist brief with the court that explained why conversion therapy

is never legitimate therapy, just under basic principles about therapeutic neutrality, about why

it's harmful to families and children and conservative religious families about how there are

alternative treatment modalities that are competent ethical. Don't seek to impose predetermined

outcomes. None of which you, I don't know if the court even read or amicus brief, but none of

this like, you know, important. I don't even want to call it nuance. I mean, it's not even nuance.

This is just like the basic contours of the professional background about what what constitutes

legitimate therapy and competent therapy and the viewpoint neutrality that wasn't, you know, we

tried to bake that into the text of the statute, but that all fell on deaf ears with with the

current court. Not reading amicus briefs or statutes is the new textualism.

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So I kind of want to focus on two parts of the reasoning, and then we'll go on to

potentially redrafting these statutes and the implications of the decision,

but just at the threshold step about whether this law regulates speech, it seems to me that

that conclusion is totally divorced from context because Colorado has not required every

person in Colorado to go around affirming an individual sexual orientation or gender identity.

Instead, it has restricted what a medical professional does in a treatment setting.

And in that context, you're not just regulating what someone says for the sake of saying it.

You are regulating their provision of health care, and so ignoring that context is kind of where

they start going wrong. And obviously, I understand that states can't simply recharacterize laws

as regulating conduct or that in order to avoid the first amendment, but that's just not what

this statute does. The question I wanted to ask you about, though, is on viewpoint discrimination,

because this is where Justice Kagan joined with Justice Sotomayor indicated they agreed with

the majority. So Justice Kagan wrote a concurrence saying the reason why I agree strict scrutiny

applies is because this law represents viewpoint discrimination. And she posits a hypothetical

law that instead of barring talk therapy designed to change an individual, a minor sexual

orientation or gender identity. The law bars therapy affirming those things. And she says,

because that would be not permitted. And that's a viewpoint discrimination. This law is as well.

What did you make of that hypothetical or question? Yeah, it's sad because, you know,

this is Justice Kagan. I know, Justice Kagan. I know. Never know. It just, oh, I know. It just

represents such a fundamental misunderstanding of the law. There again, the word affirmed does not

appear in the statute. The law is not about do you affirm a kid being gay or transgender or do you

disaffirm a kid being gay or transgender? It is about can a therapist bring their own agenda

to therapy and try to direct the outcome like have the goal of therapy be to impose a particular

sexual orientation or gender identity on a kid. It's just there is apples and oranges. I mean,

she is analyzing a law that is different than certainly the intention behind the Colorado law.

And I think different than the actual words of the statute. Yeah. And I also think this move of saying,

well, what's good for the goose is good for the gander. Just kind of ignores the

political and legal landscape that we are living in. You know, that move doesn't really work.

But, but that's a separate thing. Okay. So I do want to shift to the implications of this decision

what happens next. So what does this mean for LGBT individuals, LGBT families in Colorado or people

living in, I think the 25 other states, you know, that also have conversion therapy bands.

Yeah, you know, it's not great. I mean, as you noted, you know, the strict scrutiny is usually

fatal. Now I will say, I don't, I don't have four clothes entirely the possibility that Colorado

might be able to prevail back in the district court, just given that the evidence is so strong that,

I mean, like more than two nearly two thirds of say nearly two thirds of kids who are put into

conversion therapy actually attempt suicide, not just have suicidal ideation. And so there's zero

evidence that this therapy provides any benefit. Two thirds of kids who undergo it attempt suicide.

If this was any other type of medical or mental health treatment, where that was the case, there

would be a no brainer, of course, the state could be in it. So they may actually prevail back in the

district court. I don't think we should rule that out. But in the meantime, you know, all,

I just want to underscore that like those findings and those effects are not limited to the physical

interventions of conversion therapy, you know, studies have found that there are also those negative

effects, you know, increased oppressions, suicidal ideations and whatnot, you know, with the

talk therapy components as well. Oh gosh. Yeah. Yeah. I mean, this whole distinction between talk

therapy and other forms is so mad because like the overwhelming, overwhelming conversion therapy

consists of talk therapy in this day and age. So to say that, well, this only applies to talk

therapy, it's kind of meaningless. It's as much as to say, you know, that's what conversion therapy

is now more or less. So it's, that's just that distinction. And also therapy, talk therapy matters,

right? It affects people. And I know that from personal experience. I also know that from

observing the Supreme Court and seeing what the absence of therapy, you know, does to people.

And, you know, Justice Gorsuch basically says, well, there's some possibility that you could

sue someone if you receive bad medical advice or legal advice in your harm. But, you know, at that

point, you know, cats out of the band, right? You've already been harmed. Exactly. Exactly.

I mean, look, that is very important. I'm going to make sure we got that in. I mean, the court

thank goodness has a paragraph in there saying these free speech concerns do not apply to malpractice

claims. That is very significant. We've got a bunch of states taking action now to extend the

statute of limitations for bringing those claims. That really does matter. But as you point out,

yeah, look, the talking in a mental health situation is the treatment. It's not expressive.

The therapist is not expressing his own views about something. It is a treatment modality. I mean,

Justice Jackson nailed that so beautifully in her descent. It is a form of treatment. And not

that different than a doctor looking at an X-ray and verbally reading your X-ray results to you.

I mean, again, not to beat this to death, but the analysis is so crude. It's so crude.

So, I do want to explicitly ask you the question that we've kind of referred to a few times,

which is, could states like Colorado rewrite these laws to restrict these harmful practices in a way

that wouldn't trigger strict scrutiny? I think they could. I mean, I do think Justice

Kagan's concurring opinion does suggest that if you can do this in a way that is very expressly,

clearly unmistakably, viewpoint neutral, that the court, at least she and Justice Sotomayor,

would have a different view of the standard to be applied. Yeah, so I think they definitely

have left the door open to that. I should say that Justice Kagan's theory is that some other

laws would be content restrictions, but not viewpoint restrictions, and that maybe content

restrictions were acceptable in this situation. My concern is, well, even if Justice Kagan and

Justice Sotomayor believe these are content restrictions, would the Republican appointees say the

same to form a majority? And in particular, if you have a law that says mental health

professionals can't provide treatment that falls below, professional standards of care,

or cause harm, you know, that law is going to do the same things that this Colorado law does,

and I don't know what the Republican appointees would say as far as whether that is permissible.

Yeah, they really sidestep that whole question in this, in this opinion, I do think it's strategic

ambiguity. I don't know how that will come out, but as Justice Jackson points out, there's all kinds

of regulations of middle-oil treatment that are content-based. We're the state takes a position

on what is safe and what works. Okay, so we've alluded to the Justice Jackson dissent. You know,

I want you mentioned, you know, how excellent it is. It is superb. Would strongly recommend

reading it. You know, there was one passage that alluded to the implications this case could have,

you know, beyond laws like Colorado's and the LGBT community, because as Justice Jackson notes,

you know, before now, licensed medical professionals had to adhere to standards when treating patients.

Today, the court turns its back on that tradition and to be completely frank, no one knows what will

happen now, you know, can a state ban psychologist from counseling their clients, you know, to commit

suicide? Can a state ban mental health professionals for validating clients' choice to have an abortion?

Can you prohibit someone from telling a patient within eating disorder, you're beautiful,

but not yes, you're fat or telling them COVID and 19 vaccines cause you to be gay or an

Ivermectin works well as treatment. And, you know, the Calvin Ball aspects of this, which is what I

want to turn to next, are underscored by for people not familiar with another holding of the

Supreme Court's decision in Planned Parenthood versus Casey. You know, in that case, the court

upheld portions of a law that required doctors to inform patients about options other than abortion,

you know, to counsel their patients in a particular direction. That's obviously viewpoint

discrimination. And lower courts have sustained heartbeat laws that provide full

semisleading information to patients, you know, horrifying scripts that suggest, you know,

abortion will cause suicide when that's false. And courts have upheld that. And so I'm just

concerned about this asymmetry, you know, and court's ability to say, well, that's permissible

licensing, regulation of professional speech. This is impermissible viewpoint discrimination.

And so, you know, Shannon, I kind of previewed my views up top and I will go on that rant

in a second. But I did want to invite you to kind of situate this case in the context of

so many of the court's other cases that really seem to take aim at the LGBT community

generally and transgender people specifically. It really is concerning. Yes. You know, I mean,

it's particularly painful that this decision comes on the heels of the Scrimetti decision

where the court would act in what happens way to reaffirm that regulating medical practice

is an area of traditional state authority that states have tremendous latitude to do that,

where there's any uncertainty. And we're the same. We're the court said this can't be sex

discrimination that triggers heightened scrutiny because it's regulating medical treatment,

right? Same move. Colorado is trying to make here. Anyway, sorry.

And Casey, yes, where the court said, hey, it's fine to regulate speech if it's part

of medical treatment. Like, why does that principle not apply here? It's really baffling.

And I'm just thinking I'm really so disappointed that Justice Kagan and Justice Sotomayor

went along with such a, I mean, it's incredibly crude. They're literally holding

that that Casey principle only applies when there's some physical treatment involved,

which is, I don't know, Dr. Riley seems nonsensical to me. But, you know, we have an A1

decision now. So I, you know, what, here we are. Right. Yeah. And in addition to Scrimetti,

you know, I wanted to remind listeners of last term's decision in Muck Mood versus Taylor,

where the court said parents have a first amendment right to opt their children out of education

that includes reading storybooks with LGBT characters because those books present an objective

threat, you know, to the parents' religion. You know, we are waiting on the Supreme Court's

decisions in Little versus Hecox and West Virginia versus BPJ about whether states can ban

trans athletes from participating in sports. We are less than a month away from the court's

decision in Mirabelli versus Bonta, where the court said parents have a right to out their kids,

you know, as transgender. And between, you know, this case and that one, it feels like,

in some ways, they're legalizing child abuse of trans kids. And the broader cultural context

for this is you have statements from judges, you know, Justice last week, Judge Matthew Kismiric,

you know, in the published remarks in which he suggests recognizing LGBT individuals as contrary

to the truth as declared in Genesis. And this decision, you know, in childs comes on Sam

Alito's birthday Eve and it's just so much awfulness and hate directed at the LGBT community and

very just demoralizing. And, you know, with that kind of in mind, I did want to close the episode

on a more positive and affirming note, you know, to our transgender listeners, you know,

two people with transgender children. We love you here. Same goes for our gay lesbian bisexual

listeners and listeners with family or loved ones who are gay lesbian or bisexual. Go listen

to some Kim Petrus, her music, amazing. Go listen to Muna, what I want, great song, support the

Trevor project. If you can, you know, who provides wonderful resources to LGBT individuals,

particularly LGBT minors. Shannon, I will leave you with the final words since you are the expert.

Thanks so much, Leah. I mean, thanks for covering this. And yes, I just want to speak directly to

parents of LGBT young people inside. Please do not think that the Supreme Court just said that

these practices are safe or effective or appropriate. They did not. They're very harmful.

They will do nothing but harm your children and drive a wedge between you and your children

at a time when your kids need you the most. Yes. Thank you so much, Shannon Mentor, for sharing

your expertise and your time with us today. And thanks everyone for listening.

Strict scrutiny is a crooked media production hosted and executive produced by me,

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