The Supreme Court ruled against a Colorado law banning “conversion therapy” for LGBTQ+ minors Tuesday, leaving states like Washington with similar bans bracing for potential legal fallout.
The law at issue prohibits mental health counselors from the widely discredited practice of trying to change the sexual orientation or gender identity of LGBTQ+ youth.
Related Supreme Court rules against Colorado ban on ‘conversion therapy’ for LGBTQ+ kids
The court, by an 8-1 vote, sided with a Christian counselor who sued Colorado in 2022 arguing the state’s 2019 law violated the First Amendment. Justice Neil Gorsuch, writing the majority opinion, said Colorado’s law “regulates the content of her speech and goes further to prescribe what views she may and may not express.”
“The State’s law trains directly on the content of her speech and permits her to express some viewpoints but not others,” Gorsuch wrote.
It’s the latest in a string of recent court decisions in which the justices have sided with claims of First Amendment discrimination at the expense of LGBTQ+ rights. Last year the court upheld a Tennessee ban on certain medical treatments for transgender minors. In 2023, the court ruled that a Colorado web designer could not be forced to build websites for same-sex weddings.
“Allowing conversion therapy to continue sends a clear message to every queer kid in this country: your identity is unacceptable, and you should seek to change it,” the Washington State Legislative LGBTQ Caucus said Tuesday in a statement. “But queer youth do not need to be changed. They need support, empathy, affirmation, and protection.”
The Colorado case focused on a relatively simple question: Is a ban on “conversion therapy” a ban on certain kinds of speech — which the government generally can’t do — or is it a ban on conduct, on a type of treatment — which the government generally can do.
Washington’s 2018 law banning the therapy for children was previously challenged, though the Supreme Court declined to review the case in 2023. Colorado and Washington are among 23 states, plus the District of Columbia, that ban the therapy for minors.
The Colorado counselor, with support from the Trump administration, argued Colorado’s law bars her from offering faith-based therapy for kids and that it makes it hard to find therapists willing to discuss gender identity with kids unless the counseling affirms transition.
Colorado argued its law bars using therapy to try to “convert” LGBTQ+ people to heterosexuality or traditional gender expectations, a practice that has been linked to serious harm.
It was unclear how Tuesday’s ruling might immediately affect Washington’s law, but it will likely make it more vulnerable to legal challenges.
In an amicus brief last year, Washington state Attorney General Nick Brown and other state attorneys general argued that striking down Colorado’s law could have “significant consequences for States’ authority to regulate professional practices within their borders, to the detriment of public health and safety.”
Mike Faulk, a spokesperson for Brown, said in an email Tuesday the office is reviewing the opinion for its impact on Washington law and may have more to say in the coming days.
The Supreme Court didn’t officially strike down Colorado’s law, but it sent it back to a lower court to review based on a strict legal standard that is difficult to surmount.
Mental health providers in Washington said the ruling could make it more difficult for patients to have confidence in their counselors. Local psychologists disagreed with the court’s framing of talk therapy as “speech” as opposed to medical treatment, which can be regulated.
“I think most providers will tell you that ethically we actually can’t say anything we want,” said Julia Mackaronis, the lead mental health clinician at the Roger Saux Health Center of the Quinault Indian Nation, and a past president of the Washington State Psychological Association. “We need to stick with the evidence base for our practice.”
If someone comes seeking treatment for depression, Mackaronis said, she can’t tell them that what they should really do is stand on their head for five minutes a day.
“That’s completely outside the scope of my practice, I’m not allowed to do that,” she said. “What the Supreme Court has essentially done is say free speech trumps providers’ need to work within the evidence base and that has a whole bunch of implications.”
Charles Benincasa, a psychologist practicing in Everett, and the president-elect of the Washington State Psychological Association, considers himself a “survivor of conversion therapy.”
Benincasa said he was in conversion therapy from age 17 to 20.
“I can absolutely say that it caused harm and is more akin to abuse than it is to healing,” Benincasa said.
The court ruling, he said, treats talk therapy as a conversation rather than a medical treatment. Psychologists, he said, have a code of ethics precisely because their practice, if done incorrectly, can cause harm.
“Before you could have a higher degree of confidence that providers would be required to stick to interventions backed by rigorous scientific standards and evidence and that may not be true anymore,” Benincasa said.
Studies have found “conversion therapy” linked with higher rates of depression, anxiety, substance abuse and suicide attempts among LGTBQ+ youth.
Since 1998, the American Psychiatric Association has opposed conversion therapy that is based on the assumption that homosexuality is a mental disorder or that patients should change their sexual orientation. In 2018, the group updated its position to encourage “psychotherapies which affirm individuals’ sexual orientations and gender identities.”
The American Psychiatric Association, in a statement Tuesday said conversion therapy “is not a legitimate therapeutic treatment” and that it was “deeply concerned” the court decision will harm LGBTQ minors.
“Being LGBTQ+ is not a mental illness or disorder,” the APA wrote. “Leading health care entities, the APA among them, have concluded that these are potentially harmful, discredited practices and are not supported by scientific evidence.”
The American Medical Association also opposes conversion therapy.
The Trevor Project, a national suicide prevention organization for LGBTQ+ youth, identified more than 1,300 conversion therapy practitioners across 48 U.S. states and the District of Columbia in 2023.
In a solo dissent, Justice Ketanji Brown Jackson wrote that states have the right to regulate a medical professional’s conduct that “incidentally burdens speech.”
The court’s conclusion, Jackson wrote, “opens a dangerous can of worms and “extends the Constitution into uncharted territory in an utterly irrational fashion.”
Material from the Associated Press is included in this report.
David Gutman: 206-464-2926 or dgutman@seattletimes.com: David Gutman covers local politics and King County government at The Seattle Times, reporting on how leaders and institutions impact the lives of everyday people.
Alexandra Yoon-Hendricks: 206-464-2246 or ayoonhendricks@seattletimes.com: Alexandra Yoon-Hendricks is a race and equity reporter at The Seattle Times whose work focuses on the region’s diverse communities and the political, economic and social challenges they face.
