The Supreme Court’s First Blockbuster Case This Term Looks Pretty Fake

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On Tuesday, the Supreme Court will hear arguments in Chiles v. Salazar, a case that seeks to undo a major triumph^[2] of the LGBTQ+ movement: bans on “conversion therapy” for gay and transgender minors. These laws, now on the books in more than half the states^[3], prohibit licensed counselors from attempting to change a client’s sexual orientation or gender identity if they are under 18. Lawmakers enacted them in response to overwhelming evidence^[4] that conversion therapy is both ineffective and dangerous^[5], especially for children and teenagers^[6]. Now, however, conservative lawyers are on the verge of undoing these legislative achievements by persuading the Supreme Court that restrictions on this discredited “therapy” violate the free speech rights of counselors.

Curiously, they have done so by engineering a case riddled with distorted facts, fabricated injuries, and flimsy evidence. For instance, the plaintiff, Kaley Chiles, has disclaimed^[7] any desire to change her minor patients’ sexual orientation or gender identity, so it is unclear why she has standing to challenge the law in question. Her lawyers insist that banning conversion therapy hurts patients who voluntarily seek it out, but their proof^[8] for this assertion is anonymous Reddit posts. Chiles’ attorneys also claim that even LGBTQ+ advocates believe sexual orientation can be altered—but according to the very researchers cited^[9] in their brief, they “profoundly misrepresented” those findings through “deceptive” quotations.

On Monday’s episode of What Next^[10], Mary Harris spoke with Slate senior writer and Amicus co-host Mark Joseph Stern about the fishy case and its alarming implications for LGBTQ+ equality throughout the country. An excerpt from their conversation, below, has been edited and condensed for clarity.

Mary Harris: Chiles v. Salazar is one of the first cases that’s going to be heard that’s considered a “blockbuster.” It’s about conversion therapy and whether states are allowed to ban it. This is something that’s happening in Colorado. So what’s the story behind this case?

Mark Joseph Stern: The story is that it’s a manufactured case.

Tell me how you really feel.

Well, it’s a case brought by the Alliance Defending Freedom, a very well-funded group that really engineers these test cases in order to get the Supreme Court to change the law to be more hostile to LGBTQ rights and reproductive rights and women.

They’ve done this before with the cake-baking case.^[11]

Right.

And the website designer who wants to be able to turn gay people away.^[12]

Exactly right. And I think, in theory, there’s nothing wrong with bringing a test case. If someone’s rights are really at stake and they haven’t faced punishment yet—but they fear that they will—it’s legitimate for that person to sue. But what ADF does is really finesse the facts, often to the point of fiction, to justify creating a test case that the Supreme Court can use to change the law. That was true^[13], famously, of the “wedding website designer” who wasn’t actually asked^[14] to design websites for a gay couple, even though she claimed that she was. And it’s true in Chiles v. Salazar. The plaintiff here is challenging a Colorado law that prohibits licensed counselors, as a matter of professional conduct, from trying to change a minor’s sexual orientation or gender identity while on the job.

And you can see her point of view on YouTube. They’ve done a beautiful, well-produced video with this woman climbing mountains in Colorado or wherever.^[16]

And the mountains are a metaphor. Don’t miss that. She’s climbing that mountain all the way to the Supreme Court, baby.

She does not mention religion or gender for a really long time. She says: “As a counselor, I help people who come to see me have conversations to clarify what their goals and their values are and to identify the ways in which they would like to live a life that is more fulfilling and more satisfying and more in line with who God created them to be.” But what’s she really arguing here?

Well, so that’s the big question. Because let me be clear: This does not apply to religious figures who are counseling members of a church or members of their community. It does not apply to parents, aunts, uncles, or family members who are talking to a child. It doesn’t even apply to licensed counselors who are off the clock. It is exclusively a professional regulation that says: If you are working as a counselor recognized and licensed by the state of Colorado, then during that time, you cannot try to forcibly change a minor’s sexual orientation or gender identity.

Has Chiles been in this situation before?

No. She has never said^[17] that she wants to actively change the sexual orientation or gender identity of a minor patient. Instead, she claims that she wants to talk about gender identity. She wants to talk about sexuality and sexual orientation. But the law doesn’t prohibit that! The law doesn’t even prohibit her from saying: “I think that kids who believe they’re trans are not actually trans and should try to stop being trans.” All the law does is prohibit her from then actively applying that ideology to her patient. Because in the judgment of the state of Colorado, in a law enacted through the democratic process, that is harmful and discredited quackery, and children should not be subjected to it.

Weird litigant, right? I could imagine a parent who’s like: “I can’t find this service.” But this just seems weird.

It’s funny you bring that up, because I agree: A parent or perhaps even a patient—that’s really the person who is allegedly most “harmed” by these laws, if you accept the plaintiff’s theories here. But it seems like ADF couldn’t find those people, and they couldn’t even find evidence that those people really exist. And we know that because when it came time for ADF to show that this law was harming children by preventing them from getting the services that they wanted, they had to go to Reddit, and they had to quote anonymous posts on Reddit.com that were allegedly written by minors who sought out conversion therapy and couldn’t find it.

Do you have any doubt about how the justices will rule here?

No, not at all. No doubt whatsoever. The justices will strike down the Colorado law under the First Amendment, and in doing so, will effectively overturn the similar or identical laws of another two dozen states.^[22]

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