As States Hint Resistance to SCOTUS Ruling on Gender Counseling, What’s Next for Free Speech?

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As States Hint Resistance to SCOTUS Ruling on Gender Counseling, What’s Next for Free Speech?

Colorado Gov. Jared Polis, left, and Director of the Office of State Planning and Budget Mark Ferrandino. (Hyoung Chang/The Denver Post)

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Even after a decisive Supreme Court ruling on free speech in gender counseling, more such cases could be on the way as state and local governments across the country have bans of some sort on reparative therapy.

The Supreme Court recently ruled 8-1 against Colorado’s law that required counseling to conform to gender ideology. Some counselors use reparative therapy to help clients navigate unwanted same-sex attraction and gender dysphoria, rather than affirm their inclinations, but Colorado’s law prohibited this method.

Two dozen states and dozens more local governments have restrictions on this type of counseling. It’s not clear whether they will now comply with the court’s ruling, said David Pickup, a psychologist who was the first plaintiff to challenge a ban on reparative therapy in California.

“It was definitely shocking in a positive way to see an 8-1 ruling in the Supreme Court, which shows justices across the ideological spectrum see the fallacy of blocking speech,” Pickup told The Daily Signal.

Pickup’s challenge to the California law was struck down in 2013 by the U.S. 9th Circuit Court of Appeals, and the Supreme Court did not take the case at the time.

However, the court did take up counselor Kaley Chiles’ challenge to Colorado’s law last year. Alliance Defending Freedom, a Christian legal group, defended Chiles. The ADF website says that the “precedent“ in her victory “will help protect counselors from similarly unconstitutional laws in 20 states and over 100 localities across the U.S.”

Currently, 23 states and the District of Columbia have restrictions on counseling similar to Colorado’s, according to the Movement Advancement Project, a liberal think tank. Another four states have similar executive orders or administrative restrictions.

A Supreme Court ruling is not self-executing, though states have historically complied with rulings.

In this instance, some states appear poised to look for a legal workaround. For its part, Colorado’s Democrat House of Representatives passed a measure to allow gay or transgender clients to sue therapists who practice reparative or conversion therapy.

State lawmakers in California are reportedly considering reclassifying “conversion therapy” as a fraudulent commercial service that could invite malpractice litigation, as a workaround to the First Amendment.

Michigan Democrat Gov. Gretchen Whitmer said in a public statement last week, “Michigan will never support any practice that harms or shames LGBTQ+ youth. As long as I’m governor, every young person deserves the right to grow up safe, supported, and free to be themselves.”

Therapy is provided to patients who request it, Pickup said. He noted documented cases of parents or churches attempting to require therapy, but said a professional psychologist would not engage in compulsory therapy with a patient.

“I am hoping that the largest medical groups, such as the American Psychological Association, and individual therapists will recognize this is a therapy that works, and works well,” Pickup said. “Truth wins out, and so does good therapy.”

The states with legislatively enacted bans before the Supreme Court ruling were California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Oregon, Rhode Island, Utah, Vermont, Washington state, and Wisconsin, according to the Movement Advancement Project. The four states with administrative orders blocking the therapy are Arizona, North Carolina, North Dakota, and Virginia.

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