Supreme Court takes on free speech and LGBTQ rights in term’s first big case
Since 2020, the U.S. Supreme Court has adjudicated two landmark cases involving transgender-related rights. Its new term includes several more. These closely watched cases could have seismic ramifications – especially if the court addresses whether transgender individuals deserve civil rights protections as a class.
First on the docket, the nine justices heard oral arguments on Tuesday about whether Colorado can ban a therapist from practicing “conversion therapy” on LGBTQ+ minors. Chiles v. Salazar, brought by a plaintiff who is a therapist and a Christian, revolves around free speech.
Later this term, the court will also mull a pair of cases involving states banning transgender athletes from participating in girls sports. Little v. Hecox and West Virginia v. B.P.J. involve questions about the 14th Amendment’s equal protection clause and the boundary lines of Title IX.
Why We Wrote This
In its new term, the Supreme Court will hear several cases on LGBTQ+ rights, including on transgender athletes and conversion therapy for minors. At stake are questions about free speech, fairness, and how the Constitution addresses modern questions the Founders did not anticipate.
The cases center around very different constitutional questions. But they’re coming before the Supreme Court at a time when the country is embroiled in a culture war over the rights of transgender people. It is yet another in a series of constitutional tests over how a document ratified in 1788 addresses modern issues the Founding Fathers couldn’t have anticipated.
Free speech vs. medical care for minors
In Chiles v. Salazar, one side argues that the case is all about free speech. The other says it’s about the right of states to regulate medical care. Which question the justices find more persuasive might determine the outcome.
Colorado, like more than half of states and the District of Columbia, has banned or placed limits on licensed counselors from “engaging in conversion therapy” with those under 18. The practice is defined as attempting to change someone’s gender identity or sexual orientation.
Kaley Chiles, a licensed counselor and practicing Christian, sued the Centennial State in 2022. The plaintiff engages in talk therapy with individuals who are uncomfortable with their sexual orientation or are experiencing gender dysphoria. Her clients are often fellow Christians, who seek her instead of enlisting a secular therapist. Ms. Chiles has repeatedly declined in interviews with news outlets to say whether she wishes to offer her clients conversion therapy.
“I want to be able to speak genuinely, openly, have full conversations with my clients,” Ms. Chiles told ABC News, “without the state kind of peering into my office in these completely private conversations.”
The primary legal question at play in Chiles v. Salazar is a “doctrinal question of free speech law,” says Rick Garnett, who heads the Program on Church, State, and Society at University of Notre Dame’s law school in Indiana. “Namely, ‘What’s the distinction between regulations of conduct and regulations of expression?’” The court, he says, has a deep well of case law to draw upon in making its ruling.
The U.S. Court of Appeals for the 10th Circuit upheld the Colorado law, ruling that the ban did not violate freedom of religion or speech. The Supreme Court did not take up the freedom of religion question. It is only examining the free speech question.
A majority of justices appeared sympathetic to Ms. Chiles’ argument on Tuesday. “Just because they are engaged in conduct doesn’t mean their words aren’t protected,” Chief Justice John Roberts said.
Several leading medical groups, including the American Medical Association and the American Academy of Child and Adolescent Psychiatry, have condemned conversion therapy as ineffective and inhumane. Multiple studies have found a heightened risk of depression and suicide among those who undergo it. During oral arguments, James Campbell, a lawyer for Ms. Chiles, disputed the evidence that conversion therapy is harmful, saying that the studies don’t prove causation and were flawed because of biased sampling.
Some religious groups argue that the ban constitutes viewpoint discrimination – against counselors who seek to change their clients’ gender identities or sexual orientations, and patients who wish to undergo that process. On Tuesday, that appeared to be a persuasive argument for a court whose justices hold free speech as sacrosanct.
“For a lot of religious liberty activists, and a lot of religious counselors, they see this law as imposing a particular burden on their ability to engage in counseling that is consistent with their religious beliefs,” Professor Garnett says. This court is very protective of free speech, he adds. “Most of the justices are on the record as being very skeptical about what we call ‘viewpoint-based regulations of speech.’” In this case, the viewpoint being discriminated against would be Christian therapists who believe that children diagnosed with gender dysphoria need therapy to resolve their feelings of conflict, not gender transition treatment.
Going in to Tuesday’s hearing, Justices Neil Gorsuch and Amy Coney Barrett were seen as pivotal votes. Neither appeared convinced by Colorado’s arguments, with Justice Gorsuch at one point saying, “I’m asking you about the logic of your argument.”
On the other hand, LGBTQ+ activists say Colorado and other states are within their rights to ban or otherwise regulate conversion therapy, given the medical consensus that the practice is both harmful and ineffective. The law does not apply to faith-based ministries or life coaches, Colorado Solicitor General Shannon Stevenson said.
But after Ms. Stevenson said that a therapist would violate the state’s statute by engaging in a therapy for the purpose of changing a minor’s sexual orientation or gender identity, a member of the liberal wing of the court appeared skeptical of arguments that Ms. Chiles could not show enough harm to bring the case before the high court.
“That settles the standing question,” said Justice Sonia Sotomayor.
Legal scholars on the left have argued that this is not truly a free speech case, because Colorado law does not prohibit Christians and others, including Ms. Chiles, to debate the merits of conversion therapy – just not while on the clock treating minors.
“Most medical treatments involve some form of speech,” says Josh Rovenger, legal director at GLAD Law, which advocates equal rights for LGBTQ+ Americans.
“Extending the First Amendment into medical treatments that violate the standards of care” is fundamentally changing the “well-trodden” authority states have to regulate medical practices, says Mr. Rovenger, who advised the Biden administration on issues of equity.
The court’s June ruling in United States v. Skrmetti, in which the court held that states have the right to ban gender transition treatment for transgender minors, could end up tipping the court toward Colorado in this case, Mr. Rovenger says, since the June ruling emphasized a principle that states have the authority to regulate medical care.
”The overwhelming consensus is that these treatments don’t work, and that’s why they’re being prohibited,” says Laurie Marhoefer, who studies LGBTQ+ history at the University of Washington.
If the court says that the therapist’s practice qualifies as speech protected under the First Amendment, then Colorado has to show a compelling government interest that is narrowly tailored.
“The compelling government interest would be avoiding harming minors with this type of therapy,” says Timothy Holbrook, a law professor at Denver University’s Sturm College of Law.
Title IX and transgender athletes
In November, the justices will be refereeing a pair of cases related to sports.
The legislatures of Idaho and West Virginia passed acts stipulating that men’s and women’s sports should be classified according to biological sex determined at birth. Those respective laws have been challenged by transgender athletes in West Virginia v. B.P.J. and Little v. Hecox. (The plaintiff in the latter has asked the Supreme Court to dismiss the legal challenge because she has decided to withdraw from athletic competition; Idaho has requested that the case continue.) The two sides offer competing interpretations of Title IX, which prohibits schools that receive federal funding from discriminating “on the basis of sex.”
The tussle is over fairness. Advocates on the side of Little and West Virginia argue that those born biologically male have a strength advantage, particularly after puberty, and as a result, transgender women should be precluded from competing with biological women. They say it’s a matter of protecting women’s sports as part of Title IX.
The challengers, on the contrary, say that it’s unfair discrimination to ban someone who identifies as a girl from competing in the female category of sports. They argue that the bans constitute the very kind of discrimination Title IX seeks to prevent. And that it violates the equal protection clause of the 14th Amendment. The cases both relate to female competitions, which have been more contentious than the issue of transgender boys participating in male sports.
“Though the case is about transgender athlete bans, it is possible, if not likely, that the Supreme Court will issue broader pronouncements about the scope of Title IX and the equal protection clause,” says Carrie Evans Wilson, a partner at Montgomery McCracken Walker & Rhoads, a law firm whose specialties include Title IX cases. “Whatever the holding of the court is, it will be applicable to many other areas that affect the rights of LGBTQIA+ students.”
Among those possible impacts, she says: The decision could shape policies over gender-identity bathroom and locker room access for transgender individuals. It could impact future Title IX regulations regarding discrimination against LGBTQ+ athletes. It might even challenge policies in educational institutions such as preferred pronouns and name use.
Will the court name transgender Americans a protected class?
One legal question is whether, in keeping with the 14th Amendment’s equal protection clause, individuals who identify as transgender are protected from discrimination on the basis of sex.
Similar questions about equal protection came up in 2020, when the court extended federal anti-discrimination protections to LGBTQ+ workers in Bostock v. Clayton County. The 6-3 majority ruled that employers cannot fire an individual on the basis of their sexual orientation or gender identity. The decision, written by Justice Gorsuch, stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Lawrence Hurley/Reuters/File
That decision came as a surprise to many court watchers, as both Justice Gorsuch and Chief Justice Roberts voted with the court’s liberal wing.
It was a landmark decision. Though the majority opinion referred to employment practices, other courts believed it had a wider application. The U.S. Court of Appeals for the 4th Circuit cited Bostock in a Title IX case that same year. In Grimm v. Gloucester County School Board, the appeals court said that schools cannot bar transgender individuals from using restrooms that correspond to their gender identity.
Court watchers wonder whether the justices will have to address Bostock in its new rulings. During its previous term, the court punted on an opportunity to do so. When the court upheld a state ban that blocked gender-transition treatment in Skrmetti, Justice Gorsuch wrote, “The Court declines to address whether Bostock’s reasoning reaches beyond the Title VII context.”
One issue in Skrmetti was whether transgender individuals as a group ought to be entitled to a higher level of constitutional protection under the equal protections clause. In other words, are transgender individuals a protected class? Justice Barrett expressed skepticism on that point.
Historically, the court evaluated several considerations as to whether a group ought to be entitled to heightened protection, says Scott Skinner-Thompson, a professor who focuses on LGBTQ+ issues at the University of Colorado Boulder’s law school.
“The key factors are: whether it’s an immutable characteristic, whether [there’s a] history of discrimination, and whether they’re politically powerless,” says Mr. Skinner-Thompson.