Will SCOTUS Greenlight Conversion Therapy Even Though the UN Calls It “Torture”?

Five years ago, the United Nations concluded that conversion therapy could amount to torture and recommended it be banned. On Tuesday, the Supreme Court will consider a case that could greenlight it for LGBTQ+ youth across the nation.

It is the first of three blockbuster LGBTQ+ cases on its docket this term, as the court’s October-to-October annual cycle is known. Chiles v. Salazar, brought by Christian counselor Kaley Chiles, seeks to overturn Colorado’s ban on conversion therapy, a pseudoscientific practice in which providers attempt to change a youth’s sexual orientation or gender identity, often through extremely harsh methods.

Conversion therapy is condemned by every major medical association in the country, including the American Psychiatric Association, the American Psychological Association and the American Medical Association.

It has historically involved acts of physical, psychological and sexual abuse against minors — electric shock, masturbation reconditioning, starvation, chemically induced nausea and hypnosis, among others.

Nearly 700,000 adults are survivors of conversion therapy, according to the Williams Institute at the University of California, Los Angeles, School of Law, which submitted an amicus brief encouraging the court to find Colorado ban on the practice constitutional.

In a statement, Ilan Meyer, distinguished senior scholar of public policy at the Williams Institute, said that research shows conversion therapy “is ineffective at changing a person’s sexual orientation and gender identity and is associated with significant harm, which is why major professional organizations have overwhelmingly rejected the practice.”

Twenty-three states and Washington, D.C., have conversion therapy bans on the books. An additional four states and Puerto Rico have made efforts to limit the practice. The majority of those laws still allow therapists to discuss sexual orientation and gender identity with youth, but practitioners are not allowed to promise that they can help kids change their gender identity or sexual orientation — nor are they allowed to pressure them into doing so.

Tuesday’s hearing could change all of that. While the case focuses on Colorado’s ban, which was enacted in 2019, its outcome could have major implications for conversion therapy bans across the country.

Kelley Robinson, president of the Human Rights Campaign, the country’s largest LGBTQ+ rights organization, said in a statement that while the organization urges the court to affirm the constitutionality of Colorado’s ban, the expectations are low given the court’s conservative majority.

“In recent years, we have seen decisions out of our highest court that have rolled back our rights and cleared a pathway for discriminatory legislation that targets LGBTQ+ people and other marginalized communities,” Robinson said. “From access to critical health care to inclusivity in our schools, this shift is nothing short of alarming — and now the safety of our children is once again up for debate.”

The case comes down, in part, to an argument over free speech. Chiles argues that her right to practice conversion therapy is protected under the First Amendment. The Trump administration has weighed in to support Chiles, along with 19 state attorneys general.

But opponents argue that conversion therapy should be classified as conduct, not speech. Federal appellate courts in the Ninth and Tenth Circuits ruled that Chiles’ practice amounted to conduct, while the Eleventh Circuit concluded it was protected speech. The Supreme Court will make the final call.

The Supreme Court will hear two other major LGBTQ+ cases this fall — BPJ v. West Virginia and Hecox v. Little. Both involve challenges to statewide bans, in Virginia and Idaho, respectively, on transgender participation in sports.

The court is expected to issue its opinion on the cases in the spring or summer.