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Notes -
[disclaimer: I'll try to keep personal feelings and experiences out of this one, simply because I don't think most readers here are going to want to hear it, but it will inevitably color my takes.]
LGBT Talk / Conversion Therapy: Chiles v. Salazar
SCOTUS holds:
The opinion, by Gorsuch and joined by a somewhat surprising seven other justices, is pretty standard free speech fare: the statute bans one view and not the other, the state offers little if any historical or legal support for its ban, and it's both an outlier and a recent outlier. The state tried to compare the ban here to requirements to disclose factual, noncontroversial speech during commercial activities, and ran into a brick wall when the case formalizing that standard did a Solomon-level splitting to start with.
The concurrence, by Kagan and joined by Sotomayor, tries to cabin this ruling to its four corners, and saying that viewpoint-neutral restrictions on medical speech would have a much lower bar to pass. Where the state here banned only one side of a controversial topic, but encouraged the other, a law that merely banned this topic in this context entirely could merely need evidence that the state's interests were significant enough and connected enough. Given that we're talking Colorado, here - home of Masterpiece Cakeshop - it's not impossible that the state will try to squeak a neutral-in-theory rule under this view.
It's... somewhat difficult to imagine what that would look like, though. Kagan, during oral arguments, motioned toward a theoretical law that prohibited violating the standard of care, but that would be so wide as to revive the nondelegation doctrine, not least of all because that can range from a creature of statute to a PDF thrown together by randos to five competing and conflicting opposing philosophies. A genuine universal ban by counselors on LGBT-related talk therapy would impact the LGBT movement far more than it would social conservatives. The Colorado statute here specifically excluded "Assistance to a person undergoing gender transition" for several reasons, but the necessity for such therapy before most reasonable doctors would recommend surgical or serious chemical interventions is no small part of it. Restrictions on types of therapy might be more easily be tailored to only hit one side or the other, but while aversive- or confrontational-focused conversion therapy are common focuses for progressive outrage (whether the underlying incident was genuine or not), they're both little-used and little-liked even by social conservatives now, and a restriction that leaves sexual orientation change talk therapy on the table is likely to be seen as an unacceptable compromise.
The dissent is, no surprise, Jackson, and it's a doozy:
There are steelmen to the Colorado law. Chiles does not contest it as applied to aversives, and even if they did work, they're well-within the bounds of behaviors that states have long-regulated (and which social-conservatives have argued for regulating as recently as Skrmeti). A lot of these programs don't work, don't seem to care that they don't work, and are unwilling to consider alternative approaches that would fit their goals or the goals of their patients but would not match expectations (caveat: not all of them, and some like the SF Kaiser clinic might have been a little more open-minded than the already-libertine-seeming publicly-disclosed records). There are a mass of complicated First Amendment caselaw, epicycle on epicycle, that have left too many opportunities for motivated justice to find outlier or non-representative historical support for hilariously unconstitutional arguments.
Jackson's dissent bulldozes them. She tries to draw the statute here as merely incidentally restricting speech coincidental to restrictions on conduct, by defining conduct to include wide varieties of speech so long as the regulators motivations were pure. Her view of the First Amendment and this statute do not merely condone prohibitions far broader than cruel or harmful ones. One note compares the law here to the speech requirements in Casey, where abortion providers were required to give 24-hour notice of the possible risks and complications of procedures - but the law in Casey specifically required providers to give both the risks of abortion and carrying the fetus to term (and other alternative procedures).
It's just a mess, and it's not just me saying that: Kagan and Jackson have dueling footnotes over it.
I'm genuinely confused what Jackson's goal is, here. Bulverism's a fun sin, and all, but for all I've been unimpressed by her Munsingwear asides, I'd at least expect some sort of deep strategic or tactical focus, and it's not just me finding it jank at best (cw: ai analysis of legal documents, aka worth about as much as you paid for it). If the best she's aiming for is to throw the First Amendment to the proverbial wolves of whatever third-party organization can define professional standards, it seems a dissent like this will only motivate people to burn those orgs down faster, and damn whatever happens to the commons in the process.
Some smaller notes:
A bigger note: Even on the strict law-of-the-case matter, this is going to be a mess. There's been active lawsuits dating back to at least California's SB 1172 in 2012, which was upheld by the Ninth Circuit in 2013, in a case that SCOTUS named and shamed in 2017. There's been a circuit split since 2020's Otto v. City of Boca Raton; cases had reached SCOTUS as far back as 2014, and as recent as 2023, only to have cert denied. 23 states have laws that are near mirrors of this one, another 4 states have partial variants. One was overturned days after SCOTUS granted cert in this case. I... do not expect clarity from the First, Second, Third, or Ninth Circuit in the next year, outright. We might not know for the Tenth Circuit, or just the bounds of Colorado, specifically, in a year.
From a legal realism perspective, it doesn't 'matter'. This specific law hadn't been enforced yet, and indeed (despite that decade-plus legal limbo and wide spread), I couldn't find any clear cases of legal enforcement. If a licensing board was going to pull a therapist's card over this sorta thing, they can readily and rapidly find other
fig leafscauses, even while focusing on the exact same therapy.From a more pragmatic one than even that, though, the court's intransigence seems likely to have a longer-term impact. At minimum, this points to a no-go-zone for a philosophy, and one that's been allowed to sit for well over a decade: whatever natural resistance the psychiatric world might have toward social conservatives, this one there on top of that, and coincidentally no one in good standing with the APA will ever argue in favor of these policies, a note that should be relevant even or especially if they are clearly wrong. Therapists are more law-abiding than average (at least on the job), and even a purely illusory law will lead the marginal therapists to be just that little bit more cautious, even if only in extreme outlier cases.
I benefited from conversion talk therapy. Nobody claimed a particularly high success rate, but I got the impression that most of these therapists thought a majority of people improved somewhat. I never heard discussion of aversive practices, I didn't get the impression it was common or normal, or even really part of the same world. Everybody was religious and had strong views about family systems and the like. It was, mostly, fairly standard therapy with some unusual homework exercises centered around a self conception as a man/woman designed by God for that role. These therapists took other, non-conversion therapy clients and cases, I suspect the bulk of their clientele were dealing with trauma or whatever. The list I was given was, overwhelmingly, male, and a few women were highlighted for those that preferred a woman to talk to(this was, clearly, intended for women who don't feel comfortable discussing certain things with men). Unlike with most therapists, they freely and frequently recommended talking to someone else, changing therapists often, etc, as it was thought that different people specialized on different specific issues within the complex that causes homosexual ideation. The theory of treatment was based on a book written by some Dutch reactionary psychiatrist, this was freely shared with me and I read it out of curiosity(unfortunately, I purchased it on an old kindle account which I no longer have access to).
I should note that it did, factually, work in my case. I not only lost disordered urges but also became more stereotypically masculine, developed a greater interest in sports and the like. I'm happier for it.
As far as the vote pattern goes, it seems like the most intelligent liberal justice is attempting to mitigate the damage done to state mandation of official social liberalism. This is an issue in which I am, of course, keenly interested in given my ideological views, but it does seem like Kagan and Sotomayor recognize at least some constitutional limitations, whereas KJB simply rambles in favour of whatever the current dem party line is. No wonder Kagan is reportedly tired of her.
How did it work for you? Were you exclusively homosexual before, and are now 100% straight? Or did you reinforce an existing attraction to women?
What kind of homework exercises? I hope you don’t mind me asking - the stereotypical media depiction of conversion therapy is “teenager gets sent to an abusive camp against his will, pretends that it works on him and then has a happy gay adult life”, so how it actually goes on is something I don’t think many people know of.
I’m bisexual myself and despite my best efforts, I never felt like base attraction was something I could exert real control over. Behaviour, yes, but not the underlying desire.
EDIT: is the Dutch book you’re referring to from Dr. Gerard J. M. van den Aardweg by any chance?
When I said something about 'the sticks of men's enforcement,' I didn't particularly mean 'putting rocks in people's shoes and having them walk around,' but I suppose that's not too far off from what I meant.
There's nothing wrong with sports, fishing, working on cars, and fixing things in some vague sense, although that does lean a bit towards a red tribe and slightly older application of masculine behavior, where a lot of younger guys are fixing computers and installing cat6 in their walls, doing carpentry, and yeah, playing sports/roughhousing alongside competitive gaming or local multiplayer as a bonding ritual. I don't know about putting rocks in your shoes (and that seems very old school Catholic to me, they might as well have been wearing cilices), but it is true that men generally admire competence, doing, endurance, skill, camaraderie, pursuit of an ideal, and stoicism, and I'd count myself among them. I'm willing to admit I'm stereotypical enough to be a fan of Marcus Aurelius.
I do think that sexual attraction is malleable to some degree, and it's probably not all that hard to get someone who's 80% attracted to women to be 99% attracted to women, and perhaps even vice versa. There's probably some segment of the bisexual population for which sexual attraction can be a conditioned stimulus in one direction or another, but I suspect that it would be impossible to make a gay man exclusively attracted to women just as much as it would be impossible to make a straight man exclusively attracted to men.
Did you want to exert control to change your base attraction?
Do you see a link between reinforcing those “masculine” behaviours and it decreasing your attraction to men? Sports and roughhousing especially. Nothing like seeing a hot fit guy take his shirt off in the locker room, or wrestling with the boys, to set a bicurious man straight…
I agree. In my opinion, conversion therapy of that kind is essentially medical fraud, in that it’s extracting money from gullible patients (or parents) for a “treatment” that cannot possibly work. The free speech argument could be used for a priest or a self-help coach, not a licensed therapist.
Yes, and I tried my best! I didn’t want to be attracted to women for various reasons. But in the end feeling guilty over it didn’t help, and there’s no real point trying to repress it.
No, probably not. I think if you're really interested in the masculine form, getting close and personal with it is probably going to be erotic. But more specifically, this world is full of gay bodybuilders and straight guys with a complicated relationship to sports.
My point was not really an apologetic for conversion therapy but was a personal reflection, I guess, on masculine norms and behaviors I see in myself and male friends, which I don't think have much to do with sexual orientation. Obviously, masculine norms are a sore spot for me and neither myself nor my father are very invested in sports culture, cars, or fishing, so I'm often a little amused and a little confused at this being considered constitutive of male identity. The overall topic is a Supreme Court decision, so in that connection, you can read what I said as as an urquan obiter dictum that's not really about the topic of conversion therapy.
I think conversion therapy is unlikely to work. That said, I have a very critical view of many of the therapeutic modalities that licensed psychotherapists often make use of in their practice, like psychodynamic and humanistic methods that are re-headed 20th century woo, but nevertheless popular. The US government actually sometimes pays for veterans to receive EMDR therapy which supposedly 'works' and is 'evidence-based' in treating PTSD, but its actual theoretical basis of bilateral hemispheric stimulation is... wildly dubious, at best, and Wikipedia lists it on the pseudoscience category (same as conversion therapy, humorously enough) because there's no evidence its unique factors do anything.
Basically all therapies are evaluated on the basis of patient self-report, which means that patients' belief that something will work may be as important as any actual therapy method. This means that a huge portion of licensed therapists are, from my point of view, just extracting money from gullible patients for treatments that aren't based on any reasonable theory of how the human brain and mind work -- and nevertheless some of those patients, afterwards, say "wow doc, joie de vivre! joie de vivre!"
I don't really love the whole teen pray away the gay summer camp thing, and Lord knows residential programs intended to cough straighten-out religious youth are often questionable-to-evil, but I have serious concerns that singling out conversion therapy as a broad concept becomes an isolated demand for rigor from a profession for whom 'rigor' means 'lots of people said they liked it.
I'm not sure what the situation is like in various countries of Europe, but unfortunately, in the US, even the licensing system doesn't do much to prevent significant ethical breaches and therapeutic abuse. There's some wildly dark quackery that licensed therapists claim is therapeutic and whose damage goes far beyond conversion therapy. Jodi Hildebrandt used her sway over Mormon couples to separate children from their fathers because dad occasionally watched a pornhub video, and also prescribed much worse in terms of direct physical abuse and starvation of children for disobedience. Nevertheless -- licensed counselor, with the stain on her record prior to her criminal conviction being her violation of patient confidentiality, not the fact that her psychological and therapeutic theories were, let's say, not on this side of sanity.
Licensed therapists are already permitted to practice therapy that includes elements of a spiritual or religious tradition if this is disclosed and desired by the patient, and many people of faith explicitly seek out counselors who share their worldview (which, given how significant patient belief in the therapeutic modality is, probably means this is more effective for them). It's hard to meaningfully distinguish this from spiritual woo, quackery, and even conversion therapy to some extent, and the freedom of speech concern is that this targets the therapeutic desires of people of faith in a way that violates the fundamental principle of psychotherapy that patients are the ones in charge of shaping treatment goals. At some point, what you're saying is not that therapists can't try to convert their patients' sexuality or gender identity, it's that patients can't desire anything that rhymes with sexuality or gender identity conversion, and that's where the freedom of speech/expression concern comes into view.
If what you're calling for is something more akin to a complete rewrite of standards for psychotherapists and counselors as a profession, or criticism of parents using psychotherapy as a worldview weapon against their children -- I'm with you. But there are some deeper concerns in play.
Ah, this took a turn I didn't expect. I can understand why a bisexual man might not want to be attracted to men (while pursuing a heterosexual marriage, for example), but it's interesting that a bisexual man or trans person might find being attracted to women distressing or guilt-inducing. I really like being attracted to women because women are pretty awesome, but also my pattern of attraction is almost exclusively to femininity, so I suppose it just works to my advantage.
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