The U.S. Supreme Court has refused to hear a case challenging the state of Washington’s law banning anti-LGBTQ conversion therapy for minors, but in the 6-3 decision Justices Samuel Alito, Brett Kavanaugh, and Clarence Thomas said they would have taken the case. Justice Thomas vehemently objected to the Court’s decision, using his dissent to declare the practice – denounced as dangerous by major medical organizations and as torture by organizations and some who have been subjected to it – a First Amendment issue.
NBC News reports, “the court left in place a state law that bars therapists from counseling minors to change sexual orientation or gender identity, a practice favored by some conservatives.”
Conversion therapy, which experts say is unsuccessful and has been labeled child abuse or fraud, aims to change an LGBTQ individual’s sexual orientation or gender identity.
The Human Rights Campaign has published the statements of 15 medical groups’ positions against conversion therapy, and of a coalition of medical, mental health, education, and religious groups also opposing the practice.
Courthouse News, reporting on the Court’s refusal to take up the case, noted, “State lawmakers enacted the law to protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth. A 2018 study found that over 60% of children who received conversion therapy attempted suicide.”
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When accepting or denying a case for review, Supreme Court justices are under no obligation to identify their vote by name, much less submit legal arguments for their positions, but on this issue Justice Thomas included a multiple-page dissent.
Thomas insisted conversion therapy is an issue of free speech, despite that methods used in the U.S. and around the world can range from talk therapy to medication, surgery, electro-shock “therapy,” and even “physical and psychological violence” according to a statement opposing conversion therapy from the Independent Forensic Expert Group on Conversion Therapy.
“There is little question that SB 5722 regulates speech and therefore implicates the First Amendment. True, counseling is a form of therapy, but it is conducted solely through speech,” Thomas wrote in his dissent. “A law that restricts speech based on its content or viewpoint is presumptively unconstitutional and may be upheld only if the state can prove that the law is narrowly tailored to serve compelling state interests.”
Justice Thomas did not appear to consider the state’s primary role and compelling interest in protecting minors.
He also wrongly claimed, “under SB 5722, licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.”
CNN reports, “Under the law, a licensed therapist can discuss conversion therapy with minors or recommend it be performed by others such as a religious counselor, but a licensed therapist cannot perform it.”
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Ignoring the numerous statements, studies, and positions of experts that conversion therapy is both unsuccessful in its aims and dangerous to the health of those who undergo the discredited practice, Justice Thomas wrote that under the Washington state law known as SB 5722, “licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities.”
“Expressing any other message is forbidden—even if the counselor’s clients ask for help to accept their biological sex,” he continued. “That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.”
Justice Thomas also appeared to invite additional challenges to laws banning conversion therapy, which now exist in 22 states and the District of Columbia, according to the Movement Advancement Project.
“Although the Court declines to take this particular case, I have no doubt that the issue it presents will come before the Court again. When it does, the Court should do what it should have done here: grant certiorari to consider what the First Amendment requires,” Thomas wrote.
Issuing only a short statement that he agreed with Justice Thomas’ decision, Justice Alito called the case “a question of national importance.”
“It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny,” he added.
In 2020, the Williams Institute at UCLA School of Law reported on a study that found “non-transgender LGB people who experienced conversion therapy were almost twice as likely to think about suicide and to attempt suicide compared to their peers who hadn’t experienced conversion therapy.”