The licensed counsellor Chiles dealt only with minors and her practice includes helping her clients reach certain stated goals: whether to understand and be supported in their same sex attractions; or whether to resist those attractions; and whether to understand and be supported in their gender transitioning; or whether to be helped in resisting that impulse to transition.
Colorado law says in effect you can counsel the understanding and support but you cannot counsel the resistance. She sought “as applied” relief, ie not trying to invalidate the law but only saying it didn’t apply to her as a constitutional matter.
Jackson alone would uphold the law on the reasoning that Colorado under its police power, its residual plenary jurisdiction, can regulate, prescribe, allow and disallow certain medical practices; that under that power what therapists can say and not say isn’t speech as such but rather is speech incidental to regulating medical practice. It therefore attracts rational basis judicial review—the lowest form of judicial scrutiny—the state must show some reasonable rationale for the law. On it most laws survive review.
On that basis Colorado’s law as applied to Chiles must stand, Jackson contends. She argues that questions of viewpoint diversity and suppressing speech are in essence beside her point. Any lawful medical practice reflects a determined point of view and therapy isn’t a debate.
Colorado, Jackson says, in its state expertise has concluded that counselling resistance, non-aversive conversion therapy, is harmful and therefore has disallowed it. And she contends this and other kinds of regulation happen all the time without in the end burdening free speech since it’s integral to a medical practice including speech-only therapy and therefore only incidentally speech as such.
Notably, Jackson draws a distinct line between talk as therapy and the ventilation of ideas, a prime First Amendment right.
The majority held talk is talk and where talk isn’t constitutionally protected is with criminal enablement, with requiring the disclosure of unrelated commercial information, when, generally, when it falls within the recognized exceptions to protected speech. None of those are in the picture here.
By distinguishing between affirmative support and conversion oriented therapy, the state, says the majority, has violated viewpoint diversity under the pretext of medical regulation. It is prescribing what Chiles can talk about in her practice. It his prohibiting what she can talk about and, so, is violating her freedom of expression. Since free expression is a fundamental right, a law denying it gets strict scrutiny —ie the most exacting form of judicial review under which a law must be related to a compelling state interest and must be drawn or “tailored” as narrowly as possible. This law, therefore, doesn’t apply to Jackson in denying her freedom of expression.
My overriding thought is that both the majority and the dissent miss the mark.
I think Jackson is persuasive in arguing that speech as medical practice must be hived off from speech as speech, and that it’s right and legitimate for the state in its wisdom to regulate medical practice—here talk therapy—to avoid harm comprising malpractice. Colorado sees conversion therapy as harmful.
But she is mechanical in rigidly separating ideas and practices. Where recognized practices in relation to a specific condition coexist and vie against each other, the state within the context of talk as medical practice oversteps, disallows viewpoint diversity, in allowing one therapy and disallowing the other.
For in that context, talk, the choice of which therapy to utilize *is* a free speech issue that ought to be subject to strict scrutiny.
While this conclusion goes to what the majority holds, it too, I think, is mechanical in simply treating, in the context of talk as a medical practice, talk as talk without meeting Jackson’s well taken points. So the majority doesn’t distinguish between therapeutic talk that might be harmful and that therefore rightly attracts the state’s prohibition and on the other hand talk that isn’t and doesn’t.
Underlying all this and not addressed and maybe outside the envelope is the arguable—not absolute—difference between same sex attraction and transitioning. The former, it seems to me, is well established as an innate human propensity that in many/most/by the teens all cases is not susceptible to conversion.
Whereas, gender issues in minors fall along two broad lines: genuine cases of dysphoria and it being desperately sought as a salve for unrelated deep emotional problems. The approach to talk conversion therapy for same sex attraction might make sense of Colorado’s law, whereas the approach to transitioning might not.
Two last indirect points:
1. It’s too easy to say Chiles wants to help minors in relation to what they want. Parental harmful insistence can be invidious, insidious, subtle and powerful.
2. Justice Jackson is getting, to my mind, unfair abuse from some. Her dissent is strong but too unrelenting.
P.S. More or less dashed this off. So, I’m sorry for typos and grammatical mistakes.