The U.S. Supreme Court may overturn the ban on conversion therapy: What does it mean.

According to Vox: On Tuesday, the Supreme Court broke from its usual practice of issuing significant decisions without oral arguments or explanations. The Court will consider a case regarding the ability of states to ban a practice known as 'conversion therapy' — therapeutic sessions that attempt to change a person's sexual orientation or gender identity.

Approximately half of the states have laws banning conversion therapy for patients under 18, including Colorado, whose law is being reviewed by the Supreme Court.

There were no major doubts that this Supreme Court, with a Republican majority of 6-3, would rule against the Colorado law being reviewed in the case Chiles v. Salazar. When it comes to the rights of LGBTQ Americans and the claimed rights of religious conservatives, the Court often favors religious rights.

Two key questions arose during the hearings. First, whether the Supreme Court will overturn the Colorado ban on conversion therapy or remit the case to lower courts for applying a test known as 'strict scrutiny', which almost all similar laws fail.

Second, the more important question: to what extent will the Court limit states' powers in regulating the medical field and the activities of specialists if they provide harmful advice to their patients?

The essence of the case Chiles is based on two controversial theories of the First Amendment. The plaintiff is a therapist represented by the well-known anti-LGBTQ organization Alliance Defending Freedom. An attorney for this organization, James Campbell, noted during the hearings: “She wants to have full conversations about identity and gender issues, including the possibility of changing a patient's identity.”

“He also made a very intuitive argument: talking therapists communicate with their clients. Conversation is protected by the First Amendment. Therefore, Colorado cannot ban her from providing conversion therapy.”

Colorado, meanwhile, points to a long-standing practice of the state to regulate the advice licensed specialists provide to their clients. For instance, an attorney cannot advise a client to steal a bank, even if such advice is merely an expression of opinion. Similarly, a doctor risks being outside the law or losing their license if they recommend other harmful practices to a patient.

According to this logic, Colorado's ban on conversion therapy is legal, as noted by one federal appellate court, “every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.”

However, none of the six Republican justices showed interest in the state's arguments. At least two of them expressed doubts regarding the trust in medical expertise.

Some justices disagreed with the medical expertise

In one of the most dramatic moments of the discussion, Justice Samuel Alito compared Colorado's ban on conversion therapy to a well-known Virginian law that required the sterilization of “feebleminded” individuals. He asked Colorado Attorney General Shannon Wells Stevenson whether there was 'politicization' among the medical community on the subject.

“And even quoted his Court's conclusion in Buck v. Bell (1927), claiming that forced sterilization is acceptable since “three generations of imbeciles are enough.”

The comparison is quite provocative. Buck concerned a woman who was forcibly sterilized by government decision, and a law requiring physical mutilation is vastly different from a law attempting to prohibit a practice professionals in mental health consider harmful. However, it is important to note that eugenics in the 1920s was widely supported by the scientific community.

However, Justice Neil Gorsuch raised a more complex question: 'Can we really trust medical professionals?'. As he noted, in the 1970s, homosexuality was considered a mental illness. Therefore, based on Colorado's principle, which allows states to ban treatments that do not meet professional care standards, could states have banned therapists in the 1970s from affirming the sexual orientation of their homosexual patients?

Stevenson conceded that it may have been possible at the time. And she was right. One of the risks of relying on experts is that they can be wrong. Laws based on expert consensus can lead to harmful outcomes if that consensus turns out to be flawed.

But then what? Rely on people who do not know what they are talking about?

As even some Republican justices acknowledged, negligence laws have long penalized licensed specialists for failing to provide an appropriate standard of care. And this rule in negligence cases exists for very good reasons. Even if experts are not always right, they are usually more likely to be correct than those who lack the necessary education.

It is also important that the mental health profession rejected its erroneous viewpoint on homosexuality many years ago.

In contrast to Alito and Gorsuch, Justice Amy Coney Barrett seems to have recognized that negligence laws do indeed matter. It appears that Gorsuch also acknowledges that licensed specialists should be held accountable for providing improper advice to their clients.

However, he tried to distinguish negligence cases from the Colorado law being considered, labeling it a “prior restraint.” This term refers to laws that prohibit speech before it is declared. Negligence cases, on the other hand, usually arise when a doctor or other professional provides standard advice to a patient or client.

Thus, the Court may decide the case Chiles narrowly, overturning the outright ban on conversion therapy while allowing patients harmed by this discredited treatment to sue their therapists.

According to Stevenson, it is currently unclear whether Colorado's law operates as a prior restraint. This only happens if a patient files a complaint with the state licensing board, and the board may impose sanctions on the therapist much like a court can compel a failed specialist to compensate their clients. Both procedures occur only after improper assistance has been rendered.

Therefore, even if the Court accepts this distinction between negligence cases and more explicitly formulated bans on professional misconduct, as in Colorado's case, the court may find it difficult to control those boundaries in future cases.

Judges expressed differing opinions on the timing of the law's repeal

Another issue that arises is whether to give lower courts another chance to consider this law before its repeal. Generally, when the Supreme Court announces a new legal rule in a case, it 'remands' the case to a lower court to determine how that rule should remain in effect. In this case, the majority of justices seem prepared to implement a new rule: bans on conversion therapy must undergo strict scrutiny.

To withstand strict scrutiny, the government must demonstrate that it is 'narrowly tailored' to serve a 'compelling' interest. Stevenson argues that if Colorado had known it needed to pass this complex test to defend its law, it would have provided more empirical research to support its rationale. She asked whether the state should be allowed to present this data to the lower court before repealing the law.

But of the six Republican justices, only Barrett seemed openly receptive to this argument, while Justice Brett Kavanaugh remained silent during the hearings. Thus, it is unclear whether there are five votes to support remanding the case to the lower court. It is worth noting that Justice Elena Kagan, appointed by Obama, posed several questions that may suggest a willingness to support Republicans in applying strict scrutiny if they agree to remand.

This Supreme Court often errs when making decisions that place religious rights in conflict with LGBTQ Americans. Therefore, there is a serious threat that the justices will make a ruling that is broader than the issue of conversion therapy. If they interpret the First Amendment in a way that prohibits any specific restrictions on what professionals can tell their clients, states may lose the right to prohibit doctors from giving harmful advice to their patients.

As the ban on conversion therapy is likely to remain doomed, an important question arises: does the Court recognize that medical expertise has a role in regulating communication between healthcare providers and patients.