In the wake of the Supreme Court’s decision to protect the right of crisis pregnancy centers to lie to women in order to manipulate them out of getting abortions — and Justice Anthony Kennedy’s retirement — conservatives are now hoping for a similarly favorable ruling on the practice of ex-gay conversion therapy. In fact, they’re rather eager to make it a mainstream practice.
The Court’s ruling in NIFLA v. Becerra found that the state cannot compel crisis pregnancy centers to share messages they disagree with — even though it can still compel abortion providers to share messages they disagree with. In short, the state can only mandate what medical providers say when they are being honest, not when they’re trying to deceive their clients.
This, conservatives hope, will be their key to overturning the laws in 13 states banning conversion therapy for minors. The Family Research Council’s Peter Sprigg — who has previously called for exporting gay people and bringing criminal sanctions against them — offered this comparison between NIFLA and conversion therapy advocates: “Like NIFLA in the pregnancy center context, defenders of the right to seek counseling to overcome unwanted same-sex attractions (and of the right to offer such counseling) have argued that free speech also protects their activities.”
The Liberty Counsel, another anti-LGBTQ hate group, used such free speech arguments to challenge bans on conversion therapy in both California (Pickup v. Brown) and New Jersey (King v. Governor of New Jersey). Both the Ninth Circuit and Third Circuit Courts of Appeal upheld the bans, concluding that the bans regulate a “form of medical treatment” that does not infringe on speech. In both cases, the Liberty Counsel appealed to the Supreme Court and both times the Court declined to hear the cases. But Sprigg thinks the next time will be different.
That’s because in the majority opinion for NIFLA, Justice Clarence Thomas directly referenced the Ninth Circuit’s opinion in Pickup and suggested it was wrongly decided. After describing the Ninth Circuit’s finding that “professional speech” should be subject to different rules, Thomas countered, “But this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.'”
According to Sprigg, “This should give hope to clients seeking to overcome unwanted same-sex attractions and to the counselors and therapists who help them.”
And he’s not alone. The so-called Alliance for Therapeutic Choice and Scientific Integrity, a professional network of conversion therapists (formerly known as NARTH), had led the previous challenges against the bans and likewise celebrated the ruling in NIFLA. “[S]tates do not have the right to limit a licensed therapist’s right to free speech simply because they may be speaking in a professional capacity,” the group wrote in an email after the ruling came down. “With this in mind, our attorney advocates at Liberty Counsel are seeking to reopen the California and New Jersey cases and to challenge the laws passed in every state where ‘therapy ban’ legislation has be enacted.”
In an accompanying statement, Liberty Counsel’s Mat Staver boasted that the NIFLA ruling “means the handwriting is on the wall that laws banning counsel for unwanted same-sex attractions, behavior, or identity will fall under the First Amendment Free Speech Clause.” He insisted that the only goal of these bans is “government suppression of speech.”
This new fight comes just as the Maine legislature passed the nation’s 14th ban on therapy for minors, and California lawmakers are considering new legislation that would extend the ban on conversion therapy to adults by defining the therapy as a form of consumer fraud. The consensus among medical organizations is that attempts to change a person’s sexual orientation are both ineffective and harmful. Selling a service with the promise of changing someone’s orientation would thus be a deceitful business practice, as one New Jersey court has already found. Conservatives have argued — unconvincingly — that the California legislation would effectively ban everything from the Bible to Catholic catechism classes.
Were the Supreme Court to reverse these bans, it would give parents across the country free reign to subject their children to a shame-based therapy that tries to convince them to reject an essential part of their identity.
It would also be a major setback for the country. Several Canadian provinces have already banned conversion therapy, and the United Kingdom announced plans this week to do the same.