In a significant U.S. Supreme Court decision last week, the justices ruled 8-1 against a Colorado law that bans mental-health professionals from discussing conversion therapy with minors. The First Amendment, the court found in Chiles v Salazar, protects a therapist’s right to discuss such treatment with LGBTQ youth.
Conversion therapy seeks to change someone’s sexual orientation or identity, an approach that the American Psychological Association argues is not evidence-based and fraught with “long-lasting social and emotional consequences.” Victor Madrigal-Borloz, a United Nations independent expert, in 2020 called the practice a form of torture that should be banned worldwide.
Only one Supreme Court justice, Ketanji Brown Jackson, dissented, arguing that states should be able to regulate such practices. The ruling is likely to affect similar bans in more than 20 states, including in New Jersey.
Sue Livio, an investigative reporter for NJ.com who has covered the case, discussed the implications with NJ Spotlight News. This interview has been lightly edited.
Joanna Gagis, anchor: This is not a ban of Colorado’s conversion therapy ban. I hate to double negative, but that’s where we are. But what does this ruling do?
Sue Livio: It narrowly focuses on First Amendment rights by the therapist. They’re drawing a line between conversion therapy — trying to change someone’s sexual identity or orientation used to be associated with a lot of adverse acts — and this therapist only wanted to talk about sexual identity. So it’s saying that her freedom of speech is more important or perhaps is unconstitutional and has recommended that these bans not stand.
JG: The Supreme Court is actually sending this back to the lower court that had upheld the ban in the first place. And they’re saying that they need to re-decide the case with stricter parameters. So this was challenged and brought all the way up to the U.S. Supreme Court. Based on what’s happened, how do you expect that lower court now to handle this case?
SL: When I was speaking with some constitutional scholars at Rutgers they said the immediate effect is that New Jersey’s ban, or other state bans, would not withstand challenge. They cannot be upheld. So they have to find a line between speech and conduct. It’s going to be very difficult for any state to sort of thread that needle. The attorney general of New Jersey hasn’t responded yet based on what Rutgers professors told me. This is going to be very difficult for the bans to stand.
JG: New Jersey has had a conversion therapy ban since 2013 that was actually put in place by Governor Christie, who I remember at the time talked about a lot of the harms that have been found to be associated with conversion therapy. But this case before the Supreme Court really gets to the heart of First Amendment rights and free speech.
I think what you’re trying to say is a difficult line to toe here for any states that have a ban. How will those be upheld in court or not? What could this mean then for New Jersey? Do you see the potential for cases to be brought against the state?
SL: It all depends on whether the attorney general’s office, which regulates license holders, wants to take action on this or someone brings an action against New Jersey. Right now, things are if nothing happens, this ban isn’t repealed, but it’s in effect gone.
The Southern Poverty Law Center was instrumental in bringing these cases around the country. I think the Trevor Project, too. I think they’re assessing what their options are. Ron Chen, professor at Rutgers, was saying, any time you are regulating speech, you’re on a thin line. So this being shot down was not a surprise. In fact, medical scholars wrote an article the day before this decision came out in the Journal of the American Medical Association, saying that this is probably going to be shot down and we need to find a way to protect young people because, again, this only affects minors.
Ketanji Brown Jackson’s point was that you can’t separate the speech from the harm that the speech or the therapy has caused. And the rest of the court actually did that. They set it aside. You’ll have a lot of LGBTQ groups very upset and perhaps there’ll be a challenge. But until we hear from the attorney general, this is a dead issue.
JG: Yeah. And just to drive the point home, this was not a partisan ruling from the Supreme Court. This was an 8-1 decision. So most justices agreed that the First Amendment trumps whatever those harms may be.
