By a surprising, landslide 8-1 majority vote, the Supreme Court tossed out on free-speech grounds Colorado’s ban on conversion therapy -- volunteer talk therapy designed to change a person's attraction to same-sex individuals, or to cure gender dysphoria. The single dissent came from the court’s most liberal justice.
Yet of the 15 paragraphs that comprise the written story by National Public Radio’s legal affairs correspondent Nina Totenberg “Supreme Court opens door to controversial conversion therapy,” nine focused on the single dissent by Justice Ketanji Brown Jackson, compared to only five on the side of the overwhelming majority (the opening paragraph was labeled neutral). The on-air version that aired Tuesday on NPR’s flagship show All Things Considered tracked closely with the text version.
Veteran Supreme Court correspondent Totenberg, hailed as the “Queen of Leaks,” (i.e. laundering opposition research from Democrats seeking to damage Republican Supreme Court picks) clearly picked a side:
Siding with a Christian counselor in Colorado, the U.S. Supreme Court on Tuesday tossed out the state's law banning conversion therapy. The decision could well invalidate laws in some two dozen other states — laws that bar mental health therapists from practicing a version of talk therapy that seeks to change a teenager's sexual orientation or gender identity.
Conversion therapy is generally defined as a treatment used to change a person's attraction to individuals of the same sex or to "cure" gender dysphoria. The therapy has been forcefully repudiated by every major medical organization in the country, on grounds that the therapy doesn't work and often leads to deep depression and suicidal thoughts and actions in minors.
But on Tuesday the court delivered a major victory to therapist Kaley Chiles, who denies that her services are coercive and says clients come to her voluntarily.
Chiles challenged the Colorado law, contending that it violated her First Amendment right of free speech by subjecting her to possible punishment for using talk therapy to help teenage minors struggling with their sexual orientation or gender dysphoria.
Totenberg quoted Colorado Attorney General Philip Weiser warning a ruling would open “the door to all sorts of discredited treatments,” then went even harder with a new quote from a far from objective source.
"This decision, it's so hypocritical," said Shannon Minter, legal director for the National Center for LGBTQ Rights. "I do not understand how the same Supreme Court can, with one breath, say it's fine for Tennessee to ban a type of medical care for transgender young people and on the other hand say it is not OK for Colorado to protect gay and transgender young people against a type of treatment that really no one could possibly defend."
That said, the court was nearly unanimous in its decision. Justice Gorsuch, in his opinion for the court, noted that "the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely."
After a follow-up from Minter, Totenberg devoted the remainder of her story to Justice Jackson’s dissent..
"No one directly disputes that Colorado has the power to regulate the medical treatments that state-licensed professionals provide to patients," she said, adding, "So, in my view, it cannot also be the case that Colorado's decision to restrict a dangerous therapy modality that, incidentally, involves provider speech is presumptively unconstitutional."
But Totenberg skipped over Jackson’s double standards on state regulation of medicine. In United States v. Skrmetti, Jackson was on the losing side in a 6-3 decision. The majority upheld Tennessee’s restrictions on so-called gender-affirming medical care for minors, including puberty blockers and hormone therapy. Instead Jackson voted against Tennessee’s right to regulate gender-affirming treatment. So do states have the power to “regulate medical treatments,” or not?
