Can a state permit therapists to assist in “transitioning” the gender of minors but bar them from assisting kids who want to “detransition”? Can therapists be stopped from encouraging kids who feel unsure about their gender to become more comfortable with their biological sex? In an 8-1 decision Tuesday, the Supreme Court answered those questions with a resounding no. It’s a victory for free speech—and, to be perfectly honest, for sanity.
The case concerns a 2019 Colorado law that banned “conversion therapy” for minors, which it defined as “any practice or treatment” that “attempts or purports to change an individual’s sexual orientation or gender identity.” On the face of that definition, the statute seems almost anti-transgender, as if it banned therapies intended to help a child adopt a gender identity contrary to their biological sex. At a minimum, the definition seems neutral.
But Colorado was not entirely straightforward in that definition of conversion therapy. A subsequent provision in the statute allowed counselors to assist “a person undergoing gender transition.” In other words, helping kids transition was fine, but if a therapist sought to help a patient “realign” his gender identity with his biological sex, the therapist was subject to a fine or loss of license.
In these pages a few months ago, I argued that this was unconstitutional viewpoint discrimination, and now in Chiles v. Salazar, eight Justices have agreed. (Justice Ketanji Brown Jackson was the lone dissenter.) Colorado’s statute, the Court held, “prescribe[s] what views” a therapist “may and may not express.” “For a client ‘undergoing gender transition,’ ” the therapist can “offer words of assistance.” But if a transgender client seeks help detransitioning, the therapist is barred. And viewpoint discrimination, as the Court said, is a “bedrock” violation of freedom of speech.
