Democrat-led states are searching for ways to keep censoring counselor conversations about gender after a near-unanimous Supreme Court came down against viewpoint discrimination.
In an 8-1 ruling on Tuesday, the Supreme Court held Colorado’s so-called “conversion therapy” ban regulated Christian counselor Kaley Chiles’ speech based on viewpoint.
Twenty-three states, along with the District of Columbia, have laws like Colorado’s, according to the Movement Advance Project. Many are realizing the ruling could open them up to more legal challenges.
Democratic Maryland Gov. Wes Moore said his administration is reviewing the Chiles v. Salazar ruling to “determine the full implications for Maryland law and any appropriate next steps,” according to Maryland Matters.
“For Marylanders, our law remains in place for now, but this decision may make it more vulnerable to legal challenges,” Jeremy Browning, director of the Maryland Commission on LGBTQIA+ Affairs, told the outlet on Wednesday. “That raises real concerns about our ability to prevent harm before it happens.”
Vermont Attorney General Charity Clark told Vermont Public she would talk to state lawmakers about whether they should adjust the law to protect it from legal challenges.
“Our law is actually pretty good,” Clark told the outlet Thursday. “Any recommended changes that we have — I think it’s probably going to be more of a tweak than an overhaul.”
Democrat lawmakers in some states are pushing legislation to allow patients to sue for alleged damages from “conversion therapy,” including in Colorado, where such a bill advanced in the state House on Wednesday.
“While the U.S. Supreme Court’s ruling on Colorado’s conversion therapy ban law is deeply harmful, we’re not giving up the fight to protect the rights of LGBTQ+ Coloradans,” Democratic Colorado state Rep. Karen McCormick said in a statement. “It can take years for an individual to realize that the trauma of conversion therapy has caused anxiety, depression or other long-term health impacts, but Colorado law only allows two years to file a damages claim against a provider. Our bill addresses this gap, allowing LGBTQ+ Coloradans time to heal and a fair process to hold those who have caused long-lasting impacts accountable.”
One California lawmaker recently proposed a bill that “allows survivors of conversion therapy to seek civil remedies and justice through malpractice lawsuits.”
“In light of the Supreme Court’s horrific ruling … we must create new strategies to protect LGBTQ youth,” Democratic state Sen. Scott Wiener said in a statement to the San Francisco Chronicle. “All major medical associations agree that no ‘therapy’ can change someone’s sexual orientation or gender identity. Attempting to do so only provokes profound feelings of shame and trauma and leads to depression and suicidality.”
The ruling’s requirement for laws like Colorado’s to face the highest First Amendment scrutiny will “apply to every single one of these laws around the country,” Jim Campbell, chief legal counsel at Alliance Defending Freedom, explained on a press call Tuesday.
“The one thing we know is that whenever a court has applied that kind of heightened scrutiny to one of these laws, it has struck it down,” he said. “We think this decision will lead directly to all of those laws being unconstitutional to the extent that they try to be applied to someone like Kaley who is just engaged in voluntary conversations.”
The Sixth and Eleventh Circuit Courts of Appeals have similarly found talk therapy is speech protected by the First Amendment, coming down against “conversion therapy” bans in Michigan and a Florida county.
“Colorado may regard its policy as essential to public health and safety,” Justice Neil Gorsuch wrote in his majority opinion. “Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”
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