Supreme Court Faces Confusion on Sexual ‘Conversion Therapy’
(ANALYSIS) With its pending case of Christian psychological counselor Kaley Chiles, the U.S. Supreme Court faces a potentially momentous choice between her claim of free speech during therapy, over against Colorado’s professional licensing standards that forbid so-called “conversion therapy” regarding homosexual orientation and transgender transitions.
Colorado’s 2019 law forbids counseling of clients under age 18 “that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” Each such act is subject to a fine of up to $5,000 and a counselor’s loss of the license to legally practice. However, Colorado does not prohibit counsel by unlicensed persons engaged in “religious ministry.”
Similar laws exist in 22 other states and the District of Columbia on the basis of potential harm to clients. That view is supported by an influential lineup of professional organizations, including the American Psychiatric Association, American Psychological Association, Medical Association and American Academy of Pediatrics. Twelve lesser-known professional associations align with Chiles.
Politically, these punitive laws are also backed in “friend of the court” briefs filed by 20 states and D.C., and by 20 U.S. Senators and 167 members of the U.S. House (Democrats all). Meanwhile, Chiles wins support from 21 Republican-led states and individual legislators in Colorado and 29 other states.
The Chiles v. Salazar case, summarized by the invaluable scotusblog, does not specifically raise a religious freedom claim, but this dispute involves obvious faith traditions. Colorado’s policy is supported by Judaism’s Reform branch, the Unitarian Universalist Association, Americans United for Separation of Church and State, and groups of liberal Protestants, Catholics, Hindus and Muslims. Notably, major “mainline” and liberal Protestant denominations that favor bans on “conversion therapy” did not take a position in the Supreme Court case.
On the other hand, Chiles gets strong support in a brief from the bishops of the nation’s largest religious body, the Catholic Church. They state that male and female characteristics are “intrinsic elements of human nature” as created by God, and “people should act in accordance with this natural alignment.” Consequently, Catholics should be able to seek “appropriate” professional counseling that fits with their church’s belief, without government interference.
There’s an especially intriguing legal brief from across an unusually wide theological divide that unites the National Association of Evangelicals and Church of Jesus Christ of Latter-day Saints (formerly “Mormon”), along with conservative Anglicans and a coalition of Orthodox Jewish rabbis. The surprise here is that these tradition-minded religions agree with the professional associations in abhorring “conversion therapy.” They then assert this is not in fact what religious therapists like Chiles are practicing.
On what basis? These religious allies review more than a century of non-religious professionals’ efforts to counteract homosexuality. They describe “barbaric” surgery and other past techniques, less severe “aversion therapy” that induced physical discomfort, electroshock, varied forms of psychiatric pressure and “exposure therapy” that encouraged gay males to pursue romance with women. The brief reviews a wide range of Christian, Jewish and Muslim authorities that have denounced such “coercive or abusive treatments.”
The situation changed permanently after 1973, when the American Psychiatric Association removed homosexuality from its official manual of “mental disorders,” after which practitioners applied similar encouragement to “gender dysphoria” and transgenderism. Some psychologists persisted with Joseph Nicolosi’s “reparative therapy,” which seeks to change sexual orientation minus the offensive methods of the past. But the evolving professional standard came to allow only “affirmative therapy” that reinforces clients’ gay and lesbian orientation, or gender identity that conflicts with a patient’s genetic sex recognized at birth.
Chiles’s religious supporters contend that she merely practices “exploratory therapy.” This is described as open and non-coercive conversations “consistent with” the counselor’s beliefs, which “does not seek to impose those beliefs,” or to set a predetermined outcome for therapy, but assists “voluntary clients who determine the goals that they have for themselves.” A particular client may want guidance in voluntarily seeking sexual desire or identity that conforms with values from their religious tradition. Is this a distinction without a difference? The Supreme Court may have to decide.
Another aspect is the vigorous current debate internationally over the ethics of greatly expanded use of drugs or even surgery to enable the transition of transgender patients, particularly those under age 18. This is emphasized in a lengthy brief from the 13,000 Bible-based members of the Christian Medical and Dental Associations. These organizations contend that the clinical evidence to date “cannot justify the invasive, permanent, and experimental gender transition procedures” being promoted by fellow professionals. Criticism of “seriously flawed” studies in the field is mounting, they say, along with increasing numbers of “detransitioners” who regret they underwent such treatments as youths.
Restrictions on free speech and on religion trouble organizations like the Christian Legal Society, which has chapters at 130 law schools. A legal doctrine cited by this group and others could determine the outcome. These lawyers say the lower federal courts wrongly decided that Colorado only incidentally harms free speech. If the Supreme Court instead applies the “strict scrutiny” test for government limits on free speech, or remands the case for lower courts to do this, Chiles is likely to win.
The current Supreme Court typically accommodates religious freedom and free speech, and analysts of the oral arguments on Oct. 7 figure that a majority will sympathize with Chiles’s claim. By next June, or even before, we’ll learn if that’s so.
Richard N. Ostling was a longtime religion writer with The Associated Press and with Time magazine, where he produced 23 cover stories, as well as a Time senior correspondent providing field reportage for dozens of major articles. He is a recipient of the Religion News Association's Lifetime Achievement Award. He has interviewed such personalities as Billy Graham, the Dalai Lama, Mother Teresa and Joseph Cardinal Ratzinger (later Pope Benedict XVI); ranking rabbis and Muslim leaders; and authorities on other faiths; as well as numerous ordinary believers. He writes a bi-weekly column for Religion Unplugged.