Anti-transgender activists see this upcoming Supreme Court term as their chance to further insert religion into medicine and its regulation in the United States.
On Oct. 7, the Supreme Court will hear arguments in Chiles v. Salazar, a case brought by a Colorado-based counselor, Kaley Chiles, who argues that Colorado’s ban on conversion therapy, a widely discredited practice, is unconstitutional.
Chiles’ case is challenging a 2019 law that prohibits licensed health care providers from practicing conversion therapy with patients under 18 years old. Chiles claims that the law violates her First Amendment rights because her work sometimes involves patients and issues that “implicate Christian values about human sexuality and the treatment of their own body.”
Within the context of the broader anti-trans movement, however, it’s clear that many who support Chiles’ claim at the high court hope that a win in the case will serve as a stepping stone toward further privileging conservative Christians in the context of a state’s ability to regulate medical licensing.
The Alliance Defending Freedom, a right-wing Christian organization that purports to “affirm the inspired, infallible, inerrant, and authoritative Word of God,” has lent several of its attorneys to represent Chiles in the case. The group has routinely attacked the rights of transgender Americans, including helping draft Florida’s “Don’t Say Gay” law and other bills banning gender-affirming care for minors, and supports bans on gender-affirming care for transgender youth.
The ADF has also targeted the rights of other members of the LGBTQ+ community. It has filed suit to allow Christians to discriminate against same-sex couples. It has also argued in court for the criminalization of homosexuality, stating in an amicus brief in Lawrence v. Texas that a conservative medical organization they were representing “believe[s] that the medical research clearly demonstrates the harmful nature of same-sex sodomy, and that compassionate, caring physicians should discourage harmful behavior.”
David Pickup, head of the Alliance for Therapeutic Choice and Scientific Integrity, a conservative advocacy organization for what he calls reintegrative therapy, told Salon that, despite his organization’s name, he supports both the repeal of Colorado’s ban on conversion therapy and a federal ban on gender affirming care.
“If we don’t do that, more children will be abused by people who don’t know better. Their children’s lives are being abused day and night,” Pickup said. “This is an issue that’s so basic to human living, we can’t just stop talking.”
Supporters of Chiles in this case often frame the issue around the idea that laws like Colorado’s represent an infringement on the First Amendment rights of would-be conversion therapists. The Changed Movement, for example, claims that Colorado’s law seeks to control the “marketplace of ideas.”
“Colorado’s naked censorship of what it denigrates as ‘conversion therapy’ doesn’t merely interfere with the uninhibited marketplace of ideas about sexual-orientation and gender-identity counseling. It seeks to own it lock, stock, and barrel,” the Changed Movement argues in an amicus brief.
We need your help to stay independent
However, arguments like this gloss over the fact that Colorado’s law is concerned only with “licensed physician[s] specializing in psychiatry” and “licensed, certified, or registered mental health care provider[s].” In other words, people are free to pursue or practice conversion therapy as long as it is not administered by a doctor. Support for a total ban on gender affirming care, from groups like Alliance for Therapeutic Choice and Scientific Integrity and other anti-trans groups, also call into question whether their advocacy against Colorado’s law is centered on concern for as open a marketplace of ideas as possible.
In practice, a win for Chiles would mean that the religious beliefs of certain practitioners supersede the ability of states to regulate medical licensing and ensure that licensed doctors follow the best practices in their field.
The Colorado law in question only applies to licensed health care providers and not to religious counselors, who are still free to administer counsel based on their religious beliefs and teachings. The law also aligns with the recommendations of organizations like the American Medical Association, the American Psychiatric Association and the American Psychological Association.
The Colorado law was specifically put in place to address the problem of parents forcing their minor children to attend conversion therapy sessions under the guise of health care. The damages caused by this are well-documented and include both emotional distress as well as physical injury, as the Conversion Therapy Survivor Network explains in its amicus brief.
“Sometimes, providers themselves, in their talk therapy practices, urged [patients] to self-harm as part of the conversion therapy practice. Mr. Klenke [a former patient] describes providers recommending using self-harm as punishment for instances of same-sex attraction — including ‘burning himself with quarters after heating them up with a lighter, popping his wrists repeatedly with rubber bands, and cutting himself.’ He recounts how ‘almost everyone’ in group sessions participated in the recommended self-harm and self-mutilation punishments. ‘Nothing in my life has been as defining or traumatic,’” the amicus brief reads.
Casey Pick, director of law and policy at The Trevor Project, an LGBTQ+ advocacy organization, said in an interview that she hoped the Supreme Court would continue to recognize that it is “within the power of the state legislature to make a judgment about regulating access to health care.”
“An individual’s religious beliefs really have no bearing on the laws at issue. In this case, the laws which protect LGBTQ young people from conversion therapy are specifically targeted to the practice of mental health by licensed professionals, so people who are using their professional licensure, it does not apply to your pastor, your priest, your religious ministry,” Pick said.
Pick added, “I don’t think that it gets enough attention that in addition to the harm that we see, this does to LGBTQ plus youth. This does harm to entire families, to communities. What conversion therapy does is pit kids against their parents and families by telling kids that their parents are to blame for their sexual orientation or gender identity.”
Shannon Minter, the vice president of the National Center for LGBTQ Rights, told Salon that, despite the current conservative tilt of the court, he expects Colorado’s law to be upheld in court. That’s because the court recently ruled on a similar issue in United States v. Skrmetti, which concerned the legality of a Tennessee ban on gender affirming care and affirmed the state’s ability to regulate medicine.
“It would be really extraordinary. I mean, it would be extraordinary if the Court were to follow that decision with a ruling that said, ‘Well, when states want to prohibit licensed mental health providers from providing a treatment that the state has found to be harmful and ineffective, that it can’t do that.’ I mean, it just be really extraordinary,” Minter said.
Minter also said that Chiles has grossly “mischaracterized the law” in their arguments, particularly as it relates to what this law actually does and does not prohibit a doctor from doing.
“Chile’s is claiming that this law would prevent a therapist from counseling a young person who wants to detransition, a young person who previously has, identified as transgender and transitioned, and who is part of the incredibly small number of kids who come to the realization that was not the right path for them. She’s claiming that she would be unable to counsel such a person. There’s nothing in the law that prevents that at all,” Minter said.
Start your day with essential news from Salon.
Sign up for our free morning newsletter, Crash Course.
Minter isn’t alone in his assessment that Chiles has misrepresented the law. An amicus brief filed by the group Faith-Based Mental Health Professionals
“As Christians, [the faith-based counselors] sympathize with Chiles’s concerns about laws that target religious populations and impinge upon deeply held beliefs and values. But the law here does not implicate those concerns. And adopting Chiles’s position would not just undermine the Colorado law at issue here; it would call into question the entire regulatory regime for licensed therapists and other professionals that is critical to ensuring patient care and protecting the public,” the counselors wrote.
Part of the reason ruling in Chiles’s favor and an acceptance of his arguments would destroy medical regulation by states is that it would theoretically impact any medical situation in which a doctor and a patient are speaking. Minter also noted that it would require the court to sidestep the issue that patients and their parents are still free to seek conversion therapy from providers who are not licensed medical professionals.
“It applies only to licensed mental health providers. It has zero application to religious counselors,” Minter noted. “It is a textbook example of professional regulation.”
