A Consequential Supreme Court Term Begins With a Conversion Therapy Case

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from the New York Times, I'm Natalie Kitroa.

This is the daily.

The Supreme Court began a new term this week, one where the justices will weigh in on issues of presidential power and on the most consequential culture war battles in America.

In one of the first cases, the court considered whether to strike down a ban on conversion therapy, the controversial practice aimed at changing someone's sexual orientation.

Today, my colleague Ann Marimo walks us through that case.

It's Thursday, October 9th.

Ann, welcome to The Daily.

First time on the show as our new Supreme Court correspondent.

Thank you.

Really happy to be here.

I'm really excited to talk to you because we are at the start of a new Supreme Court term, and it's one I think a lot of us have been anticipating and waiting for because the court is going to be ruling on a number of big questions.

We know that there are big questions related to the Trump administration among all these other cases on the docket.

So I want to ask how you weigh the importance of the cases that are before the court right now.

Yeah, so as you said, it's a huge term.

The Trump administration's agenda is really going to dominate a lot of the docket.

Right.

Already we have in November the case about Trump's sweeping tariffs.

They're going to look at whether the president has the power to fire independent government regulators who are supposed to be protected by Congress.

And then in January, they're going to look at does the president have the authority to fire a governor of the independent Federal Reserve Board.

Right.

So some pretty big questions about what Trump can and can't do.

Exactly.

But there are also all of these other cases that will have critical impact on the lives of Americans that are as important and that we're also watching this term.

The court's going to look at the rights of transgender athletes to participate in girls and women's sports, the religious rights of prisoners.

And the court wasted no time in its first week back on the bench turning to one of these big culture war issues and taking up the issue of whether or not states can ban conversion therapy for minors.

Okay, so tell me about this case that we saw this week, because I think for a lot of us that are on the sidelines here, it seemed as though this case had kind of revived an issue that had been discredited a long time ago, conversion therapy.

It's something that feels a little like it's from another era, and now it's before the court.

That's right.

So, starting in about the 1990s, major medical associations had come to this consensus that counseling that aimed to change the sexual orientation of gay teenagers or gender identity of transgender teens was really viewed as harmful and widely rejected.

A lot of state legislators started to pass laws between 2012 and 2024 to place restrictions on this type of therapy for minors.

So, this case arose out of Colorado, which is one of more than 20 states with these similar laws.

And what exactly did these laws say, broadly speaking?

Yes, so Colorado's law and the laws like it basically say that any practice or treatment that tries to change a minor's gender expression or eliminate their attractions to people of the same sex are are ineffective and harmful and cannot be practiced in those states.

And so tell me about the challenge to that law in Colorado.

What's the case there?

So Colorado's law was passed back in 2019.

This lawsuit was not filed until 2022 by Kaylee Childs.

She practices in a small bungalow office in Colorado Springs downtown right near Colorado College.

She said that she wants to have voluntary conversations with young people who want to try to live a life consistent with their faith.

She gets some referrals through churches, and she says that Colorado's law is interfering with those conversations in violation of her free speech rights.

And just to be clear, has she actually gotten in trouble for doing this?

No, Colorado's law has never been enforced against anyone.

It includes fines of up to $5,000.

Therapists can lose their licenses, but she has never been prosecuted for this or charged.

But she says that her speech is being chilled because she's concerned about crossing that line.

And so she's being represented by a real powerhouse at the Supreme Court.

This is the Alliance Defending Freedom, an Arizona-based Christian conservative law firm and advocacy group that's been behind a lot of cases at the court in recent years.

In 2018, the court ruled in favor of one of their clients, Jack Phillips, who is a baker in Colorado, who had refused to make a wedding cake for a gay couple.

And then in 2023, the justices also sided with ADF on another case from Colorado.

This was a web designer who had refused to make wedding websites for same-sex couples.

And in each of these cases, these are individuals saying that their First Amendment rights are being violated.

Yes, just like Chiles in the conversion therapy case.

Okay, so walk us through the oral arguments in this case involving Chiles.

I also listened to them, but what stood out to you about how the arguments unfolded?

We will hear argument first this morning in case 24,539, Chiles versus Salazar.

Mr.

Campbell.

Thank you, Mr.

Chief Justice, and may it please the court.

So the argument began with the lawyer from Alliance Defending Freedom representing the therapist.

Colorado forbids counselors like Kaylee Childs from helping minors pursue state-disfavored goals on issues of gender and sexuality.

He said, Colorado can't turn this therapist into what he said is a mouthpiece for the government by forcing her to have the types of conversations the state thinks are appropriate.

States should not manipulate private conversations between licensed professionals and clients.

He said over and over again that the state is censoring her speech, violating her ability to work with patients who come to her voluntarily to get the type of treatment they need.

It's because the First Amendment depends on the difference between speech and conduct, not on the different...

So the therapist lawyer tried to make a really clear distinction between the voluntary talk therapy that she wants to practice and traditional conduct, doctors administering pills or delivering some sort of specific medical treatment.

And so if we were in the medical context and there was something like administering drugs, performing procedures, conducting examinations, that would take it outside of the arguments we're making.

Got it.

So in this lawyer's view, what he's saying is there's a difference between being a doctor and handing someone pills and being a therapist and just talking to a patient.

Exactly.

And that's a key distinction because the First Amendment protects speech, and the government can't infringe on the speech of individuals.

And the court has said that professionals don't lose that right to free speech just because they're operating in the professional context.

So if the court determines that this is just aimed at speech, then the state can't regulate that in a way that discriminates based on viewpoint, in contrast to states having the power to regulate medical practice to ensure patients are protected from substandard care.

So let's talk about how the justices respond to that argument.

What did you hear there?

I thought the most pushback on the therapist lawyer came from two of the liberal justices, Justice Sonia Sotomayor and Justice Gatanji Brown Jackson.

I guess it seems very odd that you could have two scenarios where you have two licensed professionals both attempting to provide treatment to an individual, say, for this same issue.

That, you know, the person says, I'd like to live consistently with my biological sex.

I feel that I'm not doing that.

I'd like your help.

Medical professional A

treats that quote-unquote condition with medication.

Medical professional B treats that condition with talk therapy.

Justice Jackson, in particular, said she was having trouble distinguishing speech as a tool here to deliver the therapy and said, What's the difference between that kind of tool and other tools doctors use?

And I guess, under your theory, those two

scenarios are sufficiently different from a constitutional perspective that one could be allowed and the other not.

I think that's potentially correct because the First Amendment would apply to the speech.

Just because words are being used to accomplish the therapy in one scenario and not the other.

No, because only words are being used in the one scenario.

Again, if there is a combination of words and conduct, I think that takes us into

a different realm.

But one of the things that she's saying here is kind of like: are you really arguing that therapists aren't health care professionals?

Is that the claim you're trying to make, that the therapy itself isn't, you know, in and of itself, a

I'm wondering why this regulation at issue here isn't really just the functional equivalent of scrametti.

And she brought up that just a few months ago, the court's conservative majority upheld a Tennessee law barring certain medical treatments for transgender young people that the state had deemed unsafe.

And she really pressed the question of how is it possible for us to say those types of laws are okay, but in this case, Colorado can't ban conversion therapy that it thinks is harmful.

Well, from a very broad perspective, there shouldn't be equivalence because obviously you have a First Amendment.

So when you're required to talk about the pressure,

the key difference, he says, is that Tennessee's law was dealing with medication, with drugs.

Colorado's law is dealing with the First Amendment and those speech concerns.

So two different constitutional principles at play.

You know, it seems plausible to me that legally these two things might be treated distinctly.

I mean, counseling obviously can be a hugely important intervention that has a big impact on someone's mental health, but it seems plausible that it would be seen differently than taking medication or doing an operation.

And you can see a slippery slope kind of concern here, where if you start regulating the things that therapists say to their patient, there could be a lot of problems down the line.

Right.

And the lawyer for the therapist said.

Yet that would allow states to silence all kinds of speech in the counseling room.

Allowing Colorado to bar this type of treatment would open the door to laws barring discussion of other things like divorce or abortion.

Here, Colorado can't satisfy any level of heightened scrutiny.

So the free speech aspect of the debate was a big part of the argument on Tuesday.

And if the court decides that this type of law is infringing on free speech, it could send it back to the lower courts.

And then the key test will be for the state to justify its law and say the harm that comes from conversion therapy justifies this infringement on speech and that the law is designed narrowly enough to make it worthwhile.

And Colorado can't prove harm because it hasn't cited a study focusing on what's at issue here, voluntary speech between a licensed professional and a minor.

So with this in mind, the petitioner's lawyer then turns to the question of harm.

Colorado certainly cites studies, but those studies suffer from significant flaws.

The therapist lawyer said the studies are weak and biased.

They treat voluntary conversations the same as shock therapy.

He said that the studies that Colorado is relying on don't address the type of voluntary talk therapy that she wants to provide.

He said there's no evidence specifically about this type of therapy that it's harmful.

She should be able to practice it with her clients.

And just to ask, is that true?

There are certainly people, right, who have said this kind of therapy ruined their lives or caused severe trauma.

Well, major medical associations like the American Medical Association, the American Psychological Association, still say that this is harmful, that conversations that try to change what they say is somebody's innate identity or sexual orientation are harmful to young people.

But there is an emerging debate, especially around gender identity, where therapists are reconsidering the possible benefits of this type of therapy.

Thank you, Counsel.

Justice Commons.

Just to summarize, the lawyers for the therapists have basically said, look, this case turns on this key issue of whether this kind of therapy is speech or medical care.

And we say it's speech.

But even if you don't buy our argument that it's speech, even if you think it's medical care, well, there's not enough evidence to say that the medical care is harmful, that this is causing harm.

Right.

And despite some tough questions from Justice Sotomayor and Justice Jackson, most of the court seemed pretty receptive to the therapist's lawyers' claims.

Some of them didn't even ask questions, like Justice Brett Kavanaugh.

But then it was time for Colorado's lawyer to stand up and try to make her case and to try to convince them otherwise.

We'll be right back.

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So the Colorado lawyer steps up, as you said, to make her case to these justices who had overall been quite receptive to the therapist's argument.

Walk us through what that lawyer said.

Mr.

Chief Justice, and may I please the court?

Yes, it's two-pronged.

This is the Solicitor General of Colorado.

Throughout its history, this court has recognized that state power is at its apex when it regulates to ensure safety in the health care professions.

Colorado's law lies at the bullseye center.

of this protection.

She says fundamentally, this is not speech.

A state cannot lose its power to regulate the very professionals that it licenses just because they are using words.

These are licensed providers.

It's conduct, it's treatment, it's a clinical conversation.

And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.

And then she says there is real harm.

There's lots of evidence from these major medical associations.

The harms from conversion therapy come from when you tell a young person you can change this innate thing about yourself and they try and they try and they fail and then they have shame and they're miserable and then it ruins She's basically disagreeing with the two main things that the therapist lawyer says.

She says this isn't speech, it's medical care.

And by the way, it does cause harm.

Right.

And she says that's why so many other states have also passed laws barring conversion therapy.

And walk us through how the justices respond to that, because it sounds like she's just saying the inverse of what they heard.

Right.

If petitioner were a non-therapist, would this be protected speech?

Well, so I wanted to mention.

So Justice Thomas said, well, what about other people who aren't licensed therapists?

Are they allowed to practice conversion therapy?

But the law exempts religious ministers and ministries from this, and there is also a group of people called life coaches who could perform this therapy.

And in response, the lawyer from Colorado says this law is narrow.

She says that there's an exemption for religious ministries.

They're not trying to violate anybody's free speech rights, that this is specifically about somebody who has a license from the state and that they get to set the standard for what that practice looks like.

So, what if someone who

happened to be devoutly religious and actually relied more on the minister than the therapist?

It would seem that that person would be equally dangerous.

He asked, what about religious ministries and life coaches?

If this is such a dangerous practice, why is it not banned for those types of individuals?

Well, I think that that would be a personal choice that they were making to rely on their religious minister.

It wouldn't be a representation from the state.

If you go to a life coach or you go to someone else, they're not licensed by the state.

You're not expecting them to be complying with standards of care, you have a different expectation.

You know, I found this exchange really interesting because on the one hand, the lawyer for Colorado makes the law seem narrow in the sense that the harm of this to people who want to seek out this kind of conversion therapy is actually limited because they can get it if they want it, just not from a therapist.

But on the other hand, the justices still have to deal with that fundamental question of whether it infringes on the speech of the people it does apply to.

Right.

And that's what we heard from some of the other justices who questioned Colorado's lawyer.

I don't really see a difference between the argument that you're making now and the argument that I thought we rejected in NIFLA.

So Justice Alito had very pointed questions for the Colorado attorney.

Let me put that aside and ask about your interpretation.

of the statute.

And he did that by using a hypothetical.

Suppose an adolescent male comes to a licensed therapist and says he's attracted to other males but feels uneasy and guilty about those feelings and he wants the therapist's help so he will feel comfortable.

He said if a young person comes to a doctor and says that I identify as gay, the law allows the therapist to help that person affirm their sexual orientation.

But the other situation is

a similar adolescent male comes to a licensed therapist, says he's attracted to other males, and he wants to end or lessen them and asks for the therapist's help in doing so.

If a different teenager comes to a doctor and says, I identify as gay, the doctor is not allowed to help that teenager try to become straight.

It seems to me your statute dictates opposite results in those two situations

based on the viewpoint expressed.

One viewpoint.

So the law allows you to counsel in one direction, but not the other.

And Justice Alito seemed to be making the point that this is sort of a classic type of law that the First Amendment prohibits.

Basically, Alito's point here is the therapist, in this case, can tell a patient to lean into their gay identity, but can't tell them to change it.

And that's discriminating based on the point of view of the speech in question, which the government can't do.

Right.

When the government does that, it's very suspect and may be in violation of the First Amendment.

And that led to one of the most surprising and really telling moments of the argument.

I guess I had the same kind of question that Justice Alito had.

I mean, if we assume, for example, Liberal Justice Elena Kagan kind of leaned into Justice Alito's question and said, you know, I have the same question.

If a doctor says, I know you identify as gay, and I'm going to help you accept that.

And another doctor says, I know you identify as gay and I'm going to help you to change that.

And one of those is permissible and the other is not.

That seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination.

And it does seem like a classic example of discrimination by government officials based on the viewpoint being expressed.

That would normally be subject to a high level of judicial review.

And in response to Justice Kagan, Colorado's lawyer says.

I don't disagree with that, Justice Kagan, and that's why medical treatment has to be treated differently.

You're right.

We are picking sides in this debate because one type of treatment is harmful.

And that's why speech is different from treatment.

The state is trying to protect young people from a harmful practice.

And so we are saying that you're not allowed to practice conversion therapy.

That's by design.

And what about the Colorado lawyer's argument that this care does cause harm?

How do the justices deal with that?

Right.

So there was another pointed question from Justice Amy Coney Barrett, who is often the swing vote and in the majority.

Justice Barrett.

What is your best evidence on this record that this kind of talk therapy by a licensed professional, licensed therapist to minors causes harm?

Sure.

I would directly.

And she said, you know, what is your best answer to how this actually causes harm?

The Green study looked at 34,000 13 to 25 year olds who had gone through conversion therapy, and after controlling for other factors, found there was a two-times rate of attempted suicides among that group.

The Colorado lawyer again pointed to major medical associations and studies over many years.

He looked specifically at childhood exposure and found association with adverse mental health outcomes in adulthood,

saying that this can lead to increased risk for depression and suicide, and said there's real harm here for young people.

Justice Lolita.

Your argument depends very heavily on the standard of care, which I take it is defined by

a medical consensus, is that correct?

And even as she's talking about all of these studies, there is skepticism from conservative justices like Samuel Alito.

But have there been times when the medical consensus has been politicized, has been taken over by ideology?

Who asked pointedly, can medical consensus be wrong?

Was there a time when many medical professionals thought that certain people should not be permitted to procreate because they had low IQs?

So he brings up a time in the 1920s when medical professionals thought that certain people should not be permitted to procreate.

We have no facts about that in this case, but I wouldn't disagree that that's possible.

And I think it's a really

opinion back in 1927, which upheld that sterilization program written by Justice Oliver Wendell Holmes, who said, I think three generations of idiots are enough.

Wasn't it better for all the world because three generations of imbeciles are enough?

He's saying, look, scientific consensus has been wrong before.

That suggests it could be wrong again, and we shouldn't rest our law on that.

Right.

And Justice Gorsuch makes the same point that medical consensus in the 1970s said that homosexuality was a mental illness.

What if a state back then passed a law prohibiting talk therapy that affirmed homosexuality?

Would that be subject to right?

It's interesting because the things that they're pointing to are really horrifying moments in our legal and scientific history.

I mean,

do you think that this line of questioning from the conservatives suggests that the justices that the court doesn't trust scientific consensus anymore?

Well, I think Justice Alito is pretty clear that medical consensus can be very important.

He says it's usually very reasonable.

But he did point out there have been times when medical consensus has been politicized or colored by ideology.

I do think it's interesting that we're in this moment, again, where the court is dealing with this intersection of the law and science.

We saw this last term when they took on the case involving gender affirming care for minors in Tennessee.

And I think that it is going to keep coming back to the court and it's something that they need to wrestle with.

Gender dysphoria.

Thank you, counsel.

The case is submitted.

Okay, so given how these oral arguments played out this week, what do you think is going to happen in this case?

I saw two paths emerging from the argument.

One, the court could decide to send this back to the lower court and say, you got it wrong the first time.

This is infringing on free speech and you have to apply a higher level of scrutiny to the law and see if it's really justified.

The other would be the court just saying that it's unconstitutional and striking it down on its own.

I mean, I think part of the equation will be, does Justice Kagan or even one of the other liberals join with the majority?

And in that case, I could see them sending it back to the lower court.

And from the way that you've described these arguments, it does seem clear that this case is actually actually very nuanced, and there were plenty of issues with the law that could be debated on their legal merits.

And yet, because of the nature of the case, the politicized moment that we're in, and the court's recent history of ruling in favor of a bunch of conservative causes, it doesn't seem like a stretch to say that this will be perceived as the court again pushing forward the conservative culture war agenda.

Both sides, I could see, interpreting it that way.

And I wonder if you see a world in which conservative legal activists jump on this to push the shift in the legal landscape even further in the direction they want.

I think it depends on how the court ends up ruling.

I mean, if it's a six to three decision divided along ideological lines, that's certainly a real signal there.

If one of the liberal justices does join and we get a narrower decision, that would show that the court is not as ideologically divided.

But certainly it fits into the pattern of what we've seen from this court in recent years.

It was just five years ago that the court actually expanded rights for gay and transgender workers.

But ever since then, they've been slowly moving in this other direction as we've talked about the case involving trans care for minors.

There's another case last term where the justices said religious families could pull their children from story time in public schools that used books with LGBTQ themed characters.

And there's questions about whether it could go even further.

Will there be a reopening of the gay marriage case?

Wow.

So we're seeing the justices continuously not shy away from these big culture war issues.

And I'm going to be looking to see how they respond to these cases from conservative activists that have the potential to reshape the country.

Anne?

Thanks so much.

Thank you.

We'll be right back.

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Israel and Hamas have reached an agreement for the release of Israeli hostages in exchange for Palestinian prisoners, a breakthrough that could be a crucial step toward an end to the two-year war in Gaza.

President Trump, who helped broker the deal, said on social media media on Wednesday that both sides had agreed to the first phase of the White House's peace plan.

He said all Israeli hostages would be released and that Israel would pull back its troops to an agreed-upon line.

The world has come together around this deal, and that's something I would say that without that

wouldn't happen.

In an interview on Fox News Wednesday night, Trump said the hostages would probably be returned on Monday and said the deal would bring peace to the whole region.

You know, many years they talked about peace in the Middle East.

This is more than Gaza.

This is peace in the Middle East, and it's an incredible thing.

But many of the specifics of the agreement remained unclear.

Trump's announcement came at 7 p.m.

Eastern on Wednesday night, 2 a.m.

Thursday in Israel.

Prime Minister Benjamin Netanyahu said that he had spoken with Trump and would convene his government on Thursday to sign off on the agreement.

But Israel's initial statements didn't mention a troop withdrawal.

Hamas said in a statement that the agreement would lead to the end of the war in Gaza and Israel's withdrawal from the territory.

And earlier on Wednesday, President Trump said that Governor J.B.

Pritzker of Illinois and Mayor Brandon Johnson of Chicago should be jailed, writing on social media that they hadn't done enough to protect ICE officers.

Both Democrats have opposed Trump's deployment of National Guard troops in the Chicago area and criticized the administration's aggressive immigration raids.

Today's episode was produced by Olivia Nat, Diana Wynne, and Rochelle Bonja.

It was edited by Rob Zipko, Devin Taylor, and MJ Davis-Lin, with help from Paige Cowitt, contains music by Marion Lozano, and was engineered by Chris Wood.

That's it for the daily.

I'm Natalie Kitroeff.

See you tomorrow.