With One Damning Question, Ketanji Brown Jackson Defined the Supreme Court’s New Term

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Midway through Tuesday’s arguments in Chiles v. Salazar, Justice Ketanji Brown Jackson asked a question that stripped away the veneer of constitutional principle from the Supreme Court’s latest blatant culture war. Last term, she noted, the court upheld Tennessee’s ban on gender-affirming care for minors. Now, in Chiles, the same court seemed poised to strike down Colorado’s ban on “conversion therapy” for minors. Both regulations “work in basically the same way,” she noted, prohibiting treatments designed to change a child’s gender expression. The difference is that Tennessee aims to erase transgender identity, while Colorado seeks to affirm it. “I’m just, from a very broad perspective, concerned,” Jackson said, “about making sure that we have equivalence with respect to these things.” Does the Constitution really take sides in this battle, blessing states that discriminate against transgender youth while condemning those that protect them?

As interpreted by this Supreme Court, the short answer is yes: The Constitution does little to protect LGBTQ+ rights and much to subvert them. There is little doubt that the Republican-appointed justices will use Chiles to weaken or destroy protections against conversion therapy for minors. In the process, they may insist that they are simply following neutral principles wherever they lead and will safeguard pro-LGBTQ+ speech in the future too. Don’t believe it. As this case lays bare, the court’s feints at evenhanded justice merely obscure its weaponization of constitutional liberties in service of the religious right’s agenda.

Chiles is a test case engineered to invalidate laws that ban licensed counselors from attempting to change a minor patient’s sexual orientation or gender identity. About half the states^[2] have enacted these laws, often on a bipartisan basis^[3] with strong public support^[4]. Extensive evidence^[5] shows that it is impossible^[6] to forcibly alter a young person’s gender or sexuality, and dangerous to try^[7]. For that reason, every major medical group^[8] in the United States endorses prohibitions against conversion therapy. Conservative Christian counselors, however, have long opposed these laws, arguing that they impermissibly censor protected speech. (Critically, they do not apply to family members, religious figures, “life coaches,” or anyone besides licensed therapists.) The Alliance Defending Freedom, a far-right law firm, manufactured Chiles^[9] so the Supreme Court would have an opportunity to rule that therapists have a First Amendment right to attempt to “convert” LGBTQ+ children. After Donald Trump returned to the White House, his Justice Department joined the case^[10] on the side of the plaintiff, a Christian therapist named Kaley Chiles.

To fend off this attack, Colorado offered^[11] two main arguments to justify its ban. First, it asserted that medical treatment is a kind of “professional conduct” that states have broad leeway to regulate. It doesn’t make a difference when the treatment at issue takes the form of speech, because medical regulations often “incidentally burden expression” without triggering First Amendment scrutiny. The real question is whether the treatment violates the standard of care; if so, a state has every right to restrict it. That leads into Colorado’s second justification—that conversion therapy does indeed contravene the standard of care by subjecting minors to “discredited” quackery far more likely to harm than help. In support, the state submitted a small mountain^[12] of scientific studies, expert testimony, and other materials that attest to the impossibility of reversing LGBTQ+ identity and the mental health dangers inherent in trying.

The Supreme Court was not impressed. When Colorado Solicitor General Shannon Stevenson pointed to this expert consensus, Justice Samuel Alito was quick to contest it. “Have there been times when the medical consensus has been politicized, has been taken over by ideology?” Before Stevenson could fully reply, Alito cut in: “Isn’t it a fact that it’s happened in the past?” He then brought up Buck v. Bell^[13], the high court’s notorious 1927 decision upholding the involuntary sterilization of “feeble-minded” people. In Alito’s telling, the lesson of Buck is not that courts should vigorously defend the rights of the marginalized, but that medical expertise is just another form of elitism that warrants suspicion, not respect.

Alito expressed a similar sentiment in Dobbs^[14] when he dismissed the mainstream medical community’s overwhelming support for abortion rights as liberal dogma dressed up in expert opinion. But Dobbs also instructed courts to place a heavy emphasis on history and tradition when evaluating constitutional claims. And there is a long history^[15] of states regulating medical treatment, including speech, without triggering any First Amendment challenges. Justice Clarence Thomas got around that inconvenient fact by demanding hyperspecific historical analogs to the Colorado law. “What’s the history of regulating therapists?” he asked Stevenson. “When did that begin?” Stevenson responded that regulation of what we now call “mental health” goes back to the founding era, so Thomas zoomed in even further. “With respect to this type of regulation that is a prior restraint on speech, what was the first example of that?” he asked. This move is familiar^[16]: When faced with historical evidence he dislikes, Thomas decides that it isn’t a close enough match to the modern law and dismisses its relevance. No conversion-therapy bans at the founding? Then there can’t be conversion therapy bans today.

In fairness, there is a kernel of validity to the argument against Colorado’s statute, as Justice Elena Kagan acknowledged on Tuesday. The ban does differentiate on the basis of viewpoint: A therapist who wants to affirm a transgender minor has no problem; one who wants to convert a transgender minor risks a penalty (specifically a $5,000 fine and potential loss of license). And viewpoint-based discrimination is a cardinal sin under the First Amendment. But a great deal of medical regulations discriminate on the basis of “viewpoint” when it’s defined this broadly. A doctor who favors natural childbirth, for instance, might counsel a patient to forgo a C-section; if the patient then loses the baby, they can still sue the doctor for malpractice. That means penalizing their “viewpoint”—a hostility toward C-sections—but it doesn’t raise First Amendment concerns. If the court rules against Colorado, will medical malpractice lawsuits suddenly be imperiled? Justice Amy Coney Barrett broached this topic with ADF lawyer James Campbell, but he did not have a coherent answer.

Justice Neil Gorsuch took another approach. He pointed out, correctly, that “homosexuality in the 1970s was professionally considered to be a mental health disorder.” And he asked Stevenson: “What if a state back then might have passed a law prohibiting talk therapy that affirmed homosexuality?” Stevenson hedged, then seemed to imply that a state could have banned gay-affirming therapy in 1970. That was the wrong answer, but it flowed from Colorado’s misguided reliance on a hazy “medical consensus” rather than more concrete scientific evidence. The truth is that doctors deemed homosexuality a “disorder” because of unreasoned stigma, not scientific reality—which is one reason why this diagnosis collapsed^[18] when seriously challenged. Stevenson’s inability to deliver a clear answer lent credence to Gorsuch’s suggestion that a broad decision for “free speech” could actually safeguard LGBTQ+ rights, not undermine them.

But no one should be fooled: This court does not dispense justice impartially when it delves into the culture wars. Just look at abortion. The Supreme Court allows states^[19] to make doctors parrot anti-abortion propaganda to their patients, compelling speech on the basis of viewpoint. Yet the court forbids states^[20] from requiring crisis pregnancy centers to tell patients they do not have a license to practice medicine. Anti-abortion advocates therefore get stronger First Amendment rights^[21] than pro-choice providers do. Or look at Jackson’s example: Last June, in U.S. v. Skrmetti^[22], the Supreme Court upheld a Tennessee statute that outlawed gender-affirming care for minors. The majority declared that courts “afford states wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Now, just months later, SCOTUS shows no signs of affording such deference to Colorado’s law. Why?

The court would say that Skrmetti was different—it involved prescription drugs and the equal protection clause, not talk therapy and free expression. But states’ restrictions on gender-affirming care increasingly involve censorship of speech as well, and conservative judges appear untroubled. For example, a federal appeals court recently reviewed^[27] an Indiana law that gags doctors within the state from referring patients to out-of-state doctors for gender-affirming treatment, or from even providing information about these patients to other providers. As Judge Candace Jackson-Akiwumi explained in her dissent, the statute singles out “speech relating to gender transition treatment for minors,” meaning that it should be “subject to strict scrutiny as a content-based restriction on pure speech.” The Republican-appointed judges in the majority nevertheless upheld the law under the First Amendment. (The plaintiffs did not appeal to SCOTUS.)

If the Supreme Court delivers a victory for Kaley Chiles, does anyone seriously believe that it will then rush to strike down these restrictions on trans-affirming speech too? The Republican-appointed justices’ invocations of “neutrality” tend to run in only one direction, imposing conservative policies in the guise of balance and restraint. When the majority hands down its opinion in this case, don’t just take it on its own terms; look at the pattern of decisions that it extends and entrenches. If there is any principle at play here, it is the rule that we may govern ourselves only when we do in obedience to this court’s reactionary convictions.^[28][29][30]

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