(CNN) — For the second time this year in a major controversy over treatment for LGBTQ youths, Supreme Court justices revealed their reluctance to accept a medical consensus.
Conservatives on Tuesday challenged the view – at the core of two dozen state laws – that it is dangerous for mental health counselors to encourage gay and trans teens to change their sexual orientation or gender identity.
During the 90-minute session of arguments, the court appeared ready to side with a licensed mental health counselor in Colorado who contends the state is violating her right to free speech with its ban on “conversion therapy.”
More broadly, the justices revealed their distrust of mental health authorities in this area of the law, reinforced the Trump administration’s suspicion of medical expertise and demonstrated how polarized gay and trans interests have become.
“The medical consensus is usually very reasonable and it’s very important,” Justice Samuel Alito asserted at one point before challenging the Colorado official defending the regulation, “But have there been times when the medical consensus has been politicized, has been taken over by ideology?”
Justice Amy Coney Barrett referred multiple times to “competing” views, despite the strong agreement in the medical field that therapy intended to change a person’s sexual orientation or gender identity can lead to health problems such as depression and anxiety and increase a person’s risk of suicide.
Several groups of mental health professionals led by the American Psychological Association told the court in a brief that efforts to alter a patient’s sexual orientation or gender identity fail to meet criteria for legitimate therapeutic treatment, in addition to being harmful and stigmatizing for the young people subject to the treatment.
The groups added that the fact that therapy is done verbally does not affect its status as mental health care.
The justices’ skepticism of the medical consensus Tuesday recalled some of the denunciations last June when the justices upheld a Tennessee state ban on puberty blockers, hormones and other medical care to assist trans youths.
Major medical organizations, including the American Medical Association and American Academy of Pediatrics, had endorsed the kind of gender-affirming care Tennessee banned.
“The Court rightly rejects efforts … to accord outsized credit to claims about medical consensus and expertise,” Justice Clarence Thomas wrote in a concurring statement in that case, US v. Skrmetti.
“(S)o-called experts have no license to countermand the wisdom, fairness, or logic of legislative choices,” Thomas added.
That sentiment favoring legislators led the court to uphold the Tennessee law. This time, it appears the court majority will disfavor legislators in Colorado.
Justice Ketanji Brown Jackson, one of the three remaining liberals on the nine-member bench, suggested that could have an air of hypocrisy.
“I’m wondering why this regulation at issue here isn’t really just the functional equivalent of Skrmetti,” she said, even as she acknowledged the different constitutional claims in the two cases. “It just seems odd to me that we might have a different result here.”
Court will have more to discuss on transgender issues
The constitutional questions at the heart of the earlier Tennessee controversy and of Tuesday’s case against Colorado differ in significant ways. But they are joined in thrusting to the fore divisions between Republican and Democratic states on LGBTQ measures.
Medical care for transgender youths has especially divided red and blue states. The Trump administration has followed suit, backing the challenge to the Colorado law.
The Trump administration has separately made anti-trans initiatives a priority, banning trans troops in the military, ordering an end to federal funding for certain medical care for trans youths and trying to keep trans women from competing in women’s sports. The Supreme Court will hear a dispute early next year over whether states can prohibit transgender girls and women from playing on female sports teams without violating the equal protection of the law.
Last year’s Tennessee case centered on the guarantee of equal protection and whether the state was unconstitutionally denying puberty blockers and related medical treatments only for transgender youths.
Chief Justice John Roberts, writing for the court majority, rejected arguments of sex-discrimination, declaring that the law validly centered on appropriate medical care for minors.
“Our role is not ‘to judge the wisdom, fairness, or logic’ of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment,” Roberts wrote. “Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.”
The Roberts majority also cast doubt on medical research that supported the benefits of gender-affirming treatments. He noted that England’s National Health Service reported last year there was “no good evidence on the long-term outcomes of interventions to manage gender-related distress.”
Tuesday’s case centered on First Amendment speech rights.
Kaley Chiles, a licensed counselor in Colorado who was described by her lawyers in their appeal as a practicing Christian who “believes that people flourish when they live consistently with God’s design, including their biological sex.”
She lost her case in lower courts, as the state argued its ban protected minors from ineffective and harmful practices and, as a free speech matter, needed to pass only the lowest level of judicial scrutiny, known as rational basis review.
James Campbell, Chiles’ lawyer, described her work to the justices: “Ms. Chiles helps clients when their goals are to resolve gender dysphoria by getting comfortable with their body and realigning their identity with their sex. She also helps them if they’re experiencing unwanted same-sex attraction, if that’s their goal to reduce it. And she helps them deal with issues of unwanted same-sex behavior.”
Regarding the level of judicial scrutiny required, Campbell said Colorado, as it seeks to justify its law, should be held to a heightened standard and required to show that the law was narrowly written to avoid infringing on rights. Without such heightened scrutiny, he said, states could “silence all kinds of speech in the counseling room.”
Colorado state solicitor general Shannon Stevenson countered during her time at the lectern that Chiles’ conversations with clients would occur “in the very specific context of treatment.” Such licensed professionals, Stevenson said, have specific duties to their clients and are subject to malpractice regulations.
Roberts, skeptical of the state’s argument, said, “Just because they’re engaged in conduct doesn’t mean that their words aren’t protected” by the First Amendment.
Other justices on the dominant conservative wing delved into the state’s justification related to maintaining a standard of care.
“What is your best evidence on this record,” Barrett asked, “… that this kind of talk therapy by a licensed professional, licensed therapist, to minors causes harm?”
Stevenson referred to various studies and said, “(T)hen you have to put it in the context of people have been trying to do conversion therapy for a hundred years with no record of success.”
She then underscored the kind of harm the state sought to avoid: “And, again, the harm … it comes from telling someone there’s something innate about yourself you can change, and then you spend all kinds of time and effort trying to do that, and you fail.”
The-CNN-Wire
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