On Tuesday, the Supreme Court marked International Trans Day of Visibility with yet another ruling that puts the lives of trans people at risk. The justices ruled that Colorado’s statewide ban on conversion therapy for young people likely violates a Christian counselor’s First Amendment rights. The decision threatens conversion therapy bans nationwide, which are currently on the books in nearly half of all U.S. states.

The 8-1 ruling has far-reaching, terrifying potential consequences. And not only for trans youth: It indicates that speech delivered by licensed health care practitioners in a professional capacity, no matter how harmful and debunked the claims, cannot be banned as illegal conduct, because it counts as protected speech.

Only Justice Ketanji Brown Jackson, the one dissenting judge, appeared to appreciate the grave stakes of this ruling.

“Before now, licensed medical professionals had to adhere to standards when treating patients.”

“Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want,” Jackson wrote in a blistering dissent. “Largely due to such State regulation, Americans have been privileged to enjoy a long and successful tradition of high-quality medical care. Today, the Court turns its back on that tradition.”

The dangers of conversion therapy to trans and queer youth cannot be overstated. According to the Trevor Project, a nonprofit suicide-prevention organization for LGBTQ+ young people, “LGBTQ+ youth who experienced conversion therapy are more than twice as likely to attempt suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year.”

Conversion therapy, however, may not be the only potentially harmful intervention the ruling would apply to. As Jackson added in her dissent, the ruling “might make speech-only therapies and other medical treatments involving practitioner speech effectively unregulatable — not to be reached via licensing standards, medical-malpractice liability, or any other means of state control.”

It is a ruling, then, completely in line with our Trumpian moment of decimated medical care standards and eliminationist assaults on trans people. Indeed, it was done with support from President Donald Trump’s Justice Department.

As journalist and trans rights advocate Erin Reed wrote, the court’s logic in the ruling holds that “any medical treatment delivered through words rather than instruments could now carry First Amendment protection — a framework that could shield a doctor who encourages a patient to commit suicide, a dietician who tells an anorexic patient to eat less, or a therapist who deliberately steers a vulnerable client away from life-saving treatment.”

Reed noted that the decision risks extending constitutional protections to “speech-based professional conduct” in other fields, like a lawyer giving knowingly harmful legal advice.

Speech as Medicine

The crux of the majority’s opinion rests on the contested line between speech that is protected against government interference, and conduct, which can be regulated.

“Her speech does not become ‘conduct’ just because a government says so or because it may be described as a ‘treatment’ or ‘therapeutic modality,’” wrote Justice Neil Gorsuch in the majority opinion, referring to the speech of Christian counselor Kaley Chiles, who sued the state of Colorado over the conversion therapy ban with representation from the right-wing legal giant the Alliance Defending Freedom.

Gorsuch’s opinion draws an extraordinary conclusion about the role of certain speech acts in professional health care settings.

The Colorado law did not ban Chiles from holding and expressing Christian views; the law, like regulations in over 20 other states, banned conversion talk therapy — that is, speech acts delivered with the specific aim to “change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.”

It is precisely professional conduct that the law regulates.

As Jackson noted in her dissent, “The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of a scalpel.”

Every major medical and mental health association has condemned the practice of conversion therapy.

Other Liberal Justices?

Given the danger posed by the court’s decision, it may seem surprising that the two other liberal justices, Elena Kagan and Sonia Sotomayor, sided with the far-right majority. Their decision, according to their concurring opinions, related to the fact that Colorado’s law was not written in sufficiently “viewpoint-neutral” language. 

“We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expressions because, as the Court holds, Colorado’s is not one,” wrote Sotomayor.

With this far-right supermajority Supreme Court, however, even cautiously worded conversion therapy bans may not survive the conservative justices. In the last year alone, the court has bucked precedents and ignored medical expertise, not to mention basic humanity, in previous anti-trans decisions like banning trans youth health care and ejecting trans people from the military.

The court’s Tuesday decision did not in itself strike down the Colorado law, but in siding with conversion therapy, the justices returned the case to the 10th Circuit, where the highest form of judicial scrutiny will be applied. The law will almost certainly be struck down.

If existing bans are invalidated, those seeking to stop a further proliferation of conversion therapy may now have to use “creative methods,” Reed wrote, like tort law and malpractice law.

This is the grim legal terrain forged by the Trump regime and bigoted groups like the Alliance Defending Freedom, aided by too many negligent or complicit liberals. Medical malpractice and harmful speech acts are protected, whereas trans kids’ existence gets no protection at all.