Pod Insights Strict Scrutiny SCOTUS Not Cool With Colorado Ban on Conversion Therapy About this episode Today the Supreme Court issued its opinion in Chiles v. Salazer, the case involving a Colorado ban on conversion therapy. Leah is joined by Shannon Minter, Legal Director at the National Center for LGBTQ Rights https://www.nclrights.org/, to break it down.
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3:00 Leah Litman? Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I am your regular host for today's emergency episode, Leah Litman. Happy Trans Day of Visibility, everyone. The Supreme Court just declared that it is viewpoint discrimination to affirm transgender individuals' existence and not deny an individual's gender identity. Yes, we got the Supreme Court's opinion in Chiles versus Salazar, the case challenging Colorado's ban on conversion therapy. And here to discuss this case with me is Shannon Minter, Legal Director at the National Center for LGBTQ Rights. Shannon, thanks so much for joining and welcome to Strict Scrutiny. Thanks, Leah. A quick preview of what we're going to try to cover in this short episode. The court held that the Colorado law, as applied to the particular mental health professional
3:45 Leah Litman? in the case, that's "professional" in air quotes, triggered strict scrutiny, the most demanding form of review, and therefore, the law needs to be evaluated by the lower courts according to that standard. The decision is 8-1, written by Neil Gorsuch, hero of the LGBT community himself. Justice Jackson was a lone dissenter. Justice Kagan wrote a concurrence, together with Justice Sotomayor, to explain her view. We'll talk about that, don't worry. But more generally, we're going to explain what the court did say and what they didn't say, and why it's still concerning, and, in my view, reflects a real anti-trans bent. Okay, Shannon, first up, just basics. What is the Colorado law that was at issue in this case?
4:23 Speaker 04 It's just a very straightforward law that says that state licensed mental health providers cannot subject a minor patient to therapeutic interventions that are attempting to change the minor's sexual orientation or gender identity. That's it.
4:40 Leah Litman? Yeah, that is a straight up ban. And as you say, it's part of a licensing regime for medical professionals. So it's not even like this law is going to haul people off to jail. So what was the specific challenge that the plaintiff brought to this law?
4:56 Speaker 04 It's based on a very crude, and yet it's a crude version of the First Amendment that the Supreme Court just endorsed eight to one, is that because what she is doing or wishes to do consists of so-called talk therapy, that any regulation of the treatment that she can provide is a regulation of speech. And that in her view, there's something about this law that is less than even-handed that, you know, says it's okay to support a young person for being gay and transgender, but that you can't try to dissuade them from being gay or transgender. I think it's a complete misreading of the law, but it's one that eight justices of the Supreme Court just endorsed.
5:39 Speaker 04 And they're like, yeah, this is talk therapy. That's speech. You're restricting speech. Therefore, we're going to apply strict scrutiny.
5:46 Leah Litman? We are going to complicate that in a bit. But first, I just want to carve out that this was what's known as an as-applied challenge. That is, the plaintiff was only challenging certain applications or certain uses of the law and maintained, and the court accepted, that she was not challenging portions of the law that banned so-called avulsa therapies, like physical interventions or medications. She was challenging Her allegations, to the extent the law permits her to speak in ways that encourage or affirm an individual's gender identity or sexual orientation, but doesn't allow her, you know, to encourage an individual to deny their gender identity or sexual orientation.
6:31 Leah Litman? That was kind of her theory of what was unconstitutional about the law. Okay. So Shannon, you mentioned the court's version, crude version of the First Amendment. So let's walk through what the court held. And the primary holding in the case is about the appropriate standard of review. So could you just tell us what the court decided there?
6:50 Speaker 04 Yeah. So the court said that insofar as this law restricts Kayleigh Child's ability to engage in so-called talk therapy that's trying to dissuade a young person from being gay or transgender, that that is viewpoint discrimination. And, you know, just under boilerplate First Amendment doctrine, therefore triggers strict scrutiny. I mean, they didn't strike the law down. They are giving Colorado a chance to go back and see if they can meet that standard.
7:21 Leah Litman? Exactly. So what the court held is the law is subject to strict scrutiny. Now, of course, strict scrutiny is the most demanding standard of review. It remains for the lower courts to apply that standard. And I think it's fair to say the majority opinion kind of strongly suggests that they think it's unconstitutional, but, you know, formally that has yet to be decided. Okay. So let's walk through why the majority said this law triggers strict scrutiny. Could you kind of introduce us to some of the reasoning, such as it is?
7:52 Speaker 04 Yes. Yes. I mean, it's very frustrating, I must say, you know, as someone very involved in helping to draft these laws, and believe me, we went to great lengths to ensure that they are not, that they are even handed, but the court seized on certain language in the statute and took it out of context and read it as suggesting that the law is saying that it is okay to support or affirm, although the word affirm appears nowhere in the statute, does not appear in the statute.
8:28 Leah Litman? This is what we call textualism, Shannon, right? This is textualism prime, textualism 2.0. The words, they aren't there, but we're just going to say they're there.
8:39 Speaker 04 Yeah, very intuitive textualism. Exactly. Um, so yeah, the court says, well, this, this, we're reading the statute to say that you can um, support, affirm, sort of endorse a young person for being gay or transgender, but you cannot do the opposite. And therefore it favors the, the one, the affirming viewpoint over the anti-affirming viewpoint, you know, all of which betrays a complete misunderstanding of therapy, a disregard for the words in the statute, but, but there you have it.
9:10 Leah Litman? Okay, so let's just kind of unpack those steps. And as you were alluding to, the first step is the court's conclusion that this law regulates speech, or in the court's words, you know, the spoken word, the quintessential form of protected speech. And from there, the court then goes on to say, the law represents something known as content discrimination and also viewpoint discrimination, both of which are disfavored when a law regulates speech. So as to content discrimination, the court said Colorado seeks to regulate what Ms. Childs, you know, the therapist says. And similarly on viewpoint discrimination, as you say, the court says the law allows
9:51 Leah Litman? the therapist to express acceptance, support of gender identity and sexual orientation, but doesn't allow her to express support for someone denying their gender identity or sexual orientation. Okay, so you mentioned these steps have a lot of problems. So which step do you want to start at, Shannon?
10:12 Speaker 04 Well, good Lord, okay, yeah, where to begin? I mean, the whole, I think there's some strategic ambiguity in this decision about whether the majority opinion is squarely based on a content
10:22 Leah Litman? Yes.
10:22 Speaker 04 discrimination theory or viewpoint discrimination. Um, the majority opinion talks about content discrimination, but then there's a concurring opinion by Justice Kagan, joined by Justice Sotomayor, that suggests that, no, that uh, the real problem is viewpoint discrimination. So that's kind of interesting and leaves the door open, I think, for potentially even rewriting these statutes in a way that might not trigger strict scrutiny. Um, so that was interesting. But the, the, look, the, the, the language that the court is reading about that it's okay to engage in treatment that is about supporting a young person, identity development. There's nothing at all on the face of the statute that says that that wouldn't apply
11:07 Speaker 04 equally to a young person who's saying, you know, I have real conflict about being gay or transgender. That really conflicts with my religious beliefs. There is nothing in this statute that prohibits a therapist from working with such a young person as long as the therapist is not trying to impose a predetermined outcome or identity on that young person. And I mean, that's why, you know, it just so happens, the bitter irony here is Dr. Julia Soduski, who is one of the leading therapists in the country, who she herself is a very conservative Catholic therapist. She has pioneered a way of working
11:47 Speaker 04 with LGBT young people from conservative religious families that does not seek to impose a predetermined outcome on them, that is not conversion therapy. She filed an incredibly powerful amicus brief with the court that explained why conversion therapy is never legitimate therapy, just under basic principles about therapeutic neutrality, about why it's harmful to families and children in conservative religious families, about how there are alternative treatment modalities that are competent, ethical, don't seek to impose predetermined outcomes, none of which you, I don't know if the court even read her amicus brief, but none of, none of this like, you know, important, I don't
12:31 Speaker 04 even want to call it nuanced. I mean, it's not even nuanced. This is just like the basic contours of the professional background about what, what constitutes legitimate therapy and competent therapy and the viewpoint neutrality that was in, you know, we tried to bake that into the text of the statute, but it, that all fell on deaf ears with, with the current court.
12:53 Leah Litman? Not reading amicus briefs or statutes is the new textualism.
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14:09 Leah Litman? So I kind of want to focus on two parts of the reasoning and then we'll go on to potentially redrafting these statutes and the implications of the decision. But just at the threshold step about whether this law regulates speech, it seems to me that that conclusion is totally divorced from context because Colorado has not required every person in Colorado to go around affirming an individual's sexual orientation or gender identity. Instead, it has restricted what a medical professional does in a treatment setting. And in that context, you're not just regulating what someone says for the sake of saying it. You are regulating their provision of healthcare. And so.
14:55 Leah Litman? Ignoring that context is kind of where they start, you know, going wrong. And obviously, I understand that states can't simply recharacterize laws as regulating conduct or that in order to avoid the First Amendment, but that's just not what this statute does. Um, you know, the question I wanted to ask you about, though, is on viewpoint discrimination, because this is where Justice Kagan joined with Justice Sotomayor indicated they agreed with the majority. So Justice Kagan wrote a concurrence saying, "The reason why I agree strict scrutiny applies is because this law represents viewpoint discrimination."
15:35 Leah Litman? And she posits a hypothetical law that instead of barring talk therapy designed to change an individual of minor sexual orientation or gender identity, the law bars therapy affirming those things. And she says, "Because that would be not permitted, and that's a viewpoint discrimination, this law is as well." What did you make of that hypothetical or question?
16:01 Speaker 04 Yeah, it's sad. Because, you know, this is Justice Kagan.
16:06 Leah Litman? I know.
16:07 Speaker 04 Come on, Justice Kagan.
16:08 Leah Litman? I know. Never meet your heroes.
16:10 Speaker 04 Oh, I know. It just represents such a fundamental misunderstanding of the law. There, again, the word affirm does not appear in the statute. The law is not about, do you affirm a kid being gay or transgender, or do you disaffirm a kid being gay or transgender? It is about, can a therapist bring their own agenda to therapy and try to direct the outcome? Like, have the goal of therapy be to impose a particular sexual orientation or gender identity on a kid? It's just, there is apples and oranges. I mean, she is analyzing a law that is different than certainly the intention behind the Colorado law, and I think different than the actual words of the statute.
16:54 Leah Litman? Yeah. And I also think this move of saying, "Well, what's good for the goose is good for the gander," just kind of ignores the Political and legal landscape that we are living in, you know, that move doesn't really work, but but that's a separate thing. Okay, so I do want to shift to the implications of this decision. What happens next? So what does this mean for LGBT individuals, LGBT families in Colorado, or people living in, I think, the 25 other states, you know, that also have conversion therapy bans?
17:30 Speaker 04 Yeah, you know, it's not great. I mean, as you noted, you know, strict scrutiny is usually fatal. Now, I will say, I don't, I don't foreclose entirely the possibility that Colorado might be able to prevail back in the district court, just given that the evidence is so strong that, I mean, like, more than two, nearly two thirds, nearly two thirds of kids who are put into conversion therapy actually attempt suicide, not just have suicidal ideation. And so there's zero evidence that this therapy provides any benefit. Two thirds of kids who undergo it attempt suicide. If this was any other type of medical or mental health treatment where that was the case, there would be a no brainer. Of course, the state could ban it. So they may actually prevail back in the district court. I don't think we should rule that out. But in the meantime, you know, all these other
18:15 Leah Litman? And I just want to underscore that, like, those findings and those effects are not limited to the physical interventions of conversion therapy. You know, studies have found that there are also those negative effects, you know, increased depressions, suicidal ideations, and whatnot, you know, with the talk therapy components as well.
18:33 Speaker 04 Oh, gosh. Yeah, yeah. I mean, this whole distinction between talk therapy and other forms is so maddening, because, like, the overwhelming overwhelmingly, conversion therapy consists of talk therapy in this day and age. So to say that, well, this only applies to talk therapy is kind of meaningless. It's as much as to say, you know, that's what conversion therapy is now, more or less. So it's, that's just that distinction.
18:55 Leah Litman? And also, therapy, talk therapy matters, right? It affects people. And I know that from personal experience. I also know that from observing the Supreme Court and seeing what the absence of therapy, you know, does to people. And, you know, Justice Gorsuch basically says, well, there's some possibility that you could sue someone if you receive bad medical advice or legal advice, and you're harmed. But, you know, at that point, You know, cat's out of the bed.
19:20 Speaker 04 The damage is done.
19:21 Leah Litman? You've already been harmed.
19:21 Speaker 04 The damage is done.
19:22 Leah Litman? Exactly, exactly.
19:24 Speaker 04 I mean, look, that is very important. I want to make sure we got that in. I mean, the court, thank goodness, has a paragraph in there saying these free speech concerns do not apply to malpractice claims. That is very significant. Got a bunch of states taking action now to extend the statute of limitations for bringing those claims. That really does matter. But as you point out, yeah, look, the talking in a mental health situation is the treatment. It's not expressive. The therapist is not expressing his or her own views about something. It is a treatment modality. I mean, Justice Jackson nailed that so beautifully in her dissent. It is a form of treatment and not that different than a doctor looking at an X-ray and verbally reading your X-ray results to you.
20:09 Speaker 04 I mean, yeah, again, not to, you know, beat this to death, but the analysis is so crude.
20:17 Leah Litman? Yes.
20:17 Speaker 04 It's so crude.
20:19 Leah Litman? Yeah. So I do want to explicitly ask you the question that we've kind of referred to a few times, which is, could states like Colorado rewrite these laws to restrict these harmful practices in a way that wouldn't trigger strict scrutiny?
20:36 Speaker 04 I think they could. I mean, I do think Justice Kagan's concurring opinion does suggest that if you can do this in a way that is very expressly, clearly, unmistakably viewpoint neutral, that the court, at least she and Justice Sotomayor, would have a different view of the standard to be applied. Yeah, so I think, yeah, I think they definitely have left the door open to that.
20:59 Leah Litman? Yeah. You know, I should say that, like, Justice Kagan's theory is that some other laws would be content restrictions, but not viewpoint restrictions, and that maybe content restrictions were acceptable in this situation.
21:14 Leah Litman? You know, my concern is, well, even if Justice Kagan and Justice Sotomayor believe these are content restrictions, you know, would the Republican appointees say the same to form a majority? And in particular, you know, if you have a law that says mental health professionals can't provide treatment that falls below professional standards of care or cause harm, you know, that law is going to do the same things that this Colorado law does. And I don't know what the Republican appointees would say as far as whether that is permissible.
21:44 Speaker 04 They really sidestepped that whole question in this opinion. I do think it's strategic ambiguity. I don't know how that would come out, but as Justice Jackson points out, there's all kinds of regulations of mental health treatment that are content based.
21:56 Leah Litman? Where the state takes a position on what is safe and what works. Okay, so we've alluded to the Justice Jackson dissent. You know, I want, you mentioned, you know, how excellent it is. It is superb. Would strongly recommend reading it. You know, there was one passage that alluded to the implications this case could have, you know, beyond laws like Colorado's and the LGBT community. Because as Justice Jackson notes, you know, before, now licensed medical professionals had to adhere to standards when treating patients. Today, the court turns it back on that tradition. And to be completely frank, no one knows what will happen now. You know, can a state ban psychologists from counseling their clients, you know, to commit suicide?
22:39 Leah Litman? Can a state ban mental health professionals for validating clients' choice to have an abortion? Can you prohibit someone from telling a patient with an eating disorder, you're beautiful, but not, yes, you're fat? Or telling them COVID-19 vaccines cause you to be gay? Or ivermectin works well as treatment? And, you know, the Calvin ball aspects of this, which is what I want to turn to next, are underscored by, for people not familiar with another holding of the Supreme Court's decision in Planned Parenthood versus Casey. You know, in that case, the court upheld portions of a law that required doctors to inform patients about options other than abortion, you know, to counsel their patients.
23:19 Leah Litman? In a particular direction. That's obviously viewpoint discrimination. And lower courts have sustained heartbeat laws that provide false and misleading information to patients, horrifying scripts that suggest abortion will cause suicide when that's false, and courts have upheld that. And so I'm just concerned about this asymmetry and court's ability to say, well, that's permissible licensing, regulation of professional speech, this is impermissible viewpoint discrimination. And so Shannon, I kind of previewed my views up top, and I will go on that rant in a second. But I did want to invite you to kind of situate this case in the context of so many of the court's other cases that really seem to take
24:02 Leah Litman? aim at the LGBT community generally and transgender people specifically.
24:08 Speaker 04 It really is concerning, yes. You know, I mean, it's particularly painful that this decision comes on the heels of the Scremety decision where the court went out its way to reaffirm that regulating medical practice is an area of traditional state authority, that states have tremendous latitude to do that, where there's any uncertainty.
24:27 Leah Litman? And where the court said, this can't be sex discrimination that triggers heightened scrutiny because it's regulating medical treatment, right? Same move Colorado was trying to make here. Anyway, sorry.
24:41 Speaker 04 And Casey, yes, where the court said, hey, it's fine to regulate speech if it's part of medical treatment. Like, why does that principle not apply here? It's really baffling. And I'm really so disappointed that Justice Kagan and Justice Sotomayor went along with such a, I mean, it's incredibly crude. They're literally holding that that Casey principle only applies when there's some physical treatment involved, which is, I don't know, doctrinally seems nonsensical to me. But we have an A1 decision now, so I, you know, here we are.
25:21 Leah Litman? Yeah. And in addition to Skermetti, you know, I wanted to remind listeners of last term's decision in Mahmoud versus Taylor, where the court said parents have a First Amendment right to opt their children out of education that includes reading storybooks with LGBT characters because those books present an objective threat, you know, to the parents' religion. You know, we are waiting on the Supreme Court's decisions in Little versus Hecox and West Virginia versus BPJ about whether states can ban trans athletes from participating in sports. We are less than a month away from the court's decision in Mirabelli versus Bonta, where the court said parents have a right to out their kids, you know, as transgender. And between, you know, this case and that one, it feels like, in
26:05 Leah Litman? some ways, they are legalizing child abuse of trans kids. And the broader cultural context for this is you have statements from judges, you know, Justice last week, Judge Matthew Kaczmarek, you know, in the published remarks in which he suggests recognizing LGBT individuals as contrary to the truth as declared in Genesis. And this decision, you know, in Childs comes on Sam Alito's birthday eve, and it's just so much awfulness and hate directed at the LGBT community and very just demoralizing. And, you know, with that kind of in mind, I did want to close the episode on a more positive and affirming note,
26:49 Leah Litman? you know, to our transgender listeners, you know, to people with transgender children. We love you here. Same goes for our gay, lesbian, bisexual listeners and listeners with family or loved ones who are gay, lesbian, or bisexual. Go listen to some Kim Petras. Her music, amazing. Go listen to Muna, "What I Want," great song. Support the Trevor Project if you can, you know, who provides wonderful resources to LGBT individuals, particularly LGBT minors. Shannon, I will leave you with the final words, since you are the expert.
27:20 Speaker 04 Thanks so much, Leah. I mean, thanks for covering this. And yes, I just want to speak directly to parents of LGBT young people and say, please do not think that the Supreme Court just said that these practices are safe or effective or appropriate. They did not. They're very harmful.
27:39 Speaker 04 They will do nothing but harm your your children and drive a wedge between you and your children at a time when your kids need you the most.
27:47 Leah Litman? Yes. Thank you so much, Shanda Minter, for sharing your expertise and your time with us today. And thanks, everyone, for listening.
28:01 Leah Litman? Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Lea Litman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Raul. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. And thanks to our video team, Ben Heathcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube, at Strict Scrutiny Podcast, so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.
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