The accusations of hypocrisy practically write themselves: two Supreme Court decisions, only nine months apart, addressing left-wing and right-wing responses to gender dysphoria.
In the first one, U.S. v. Skrmetti, a conservative state banned puberty blockers and cross-sex hormones for minors, and the conservative justices gave it the thumbs-up. They gave the law only “rational basis review,” the same level of judicial scrutiny that applies to speeding tickets and minimum wage laws.
But in the second one, last week’s Chiles v. Salazar, a liberal state banned talk therapy that tries to change a person’s gender identity, and the conservative justices (joined by two of the liberals!) said the law gets strict scrutiny because it’s “presumptively unconstitutional.”
And in the predictable corners of Bluesky and Substack, people nod cynically and repeat their mantras about the court being “stolen,” “broken” and “illegitimate.”
The accusations of “profound hypocrisy” write themselves, but they’re wrong. Legally speaking, the difference between the two cases can be explained in two sentences.
- The talk therapy at issue in Chiles was talk — i.e., speech — while puberty blockers and cross-sex hormones are prescription drugs.
- The Constitution has a Free Speech Clause, and it doesn’t have a Free Prescription Drugs Clause.
But to those who are upset about the Chiles decision, that argument probably isn’t very comforting. I’ll see if I can do a little better below.
To begin with, anyone who tells you that Chiles will invalidate laws against aversion therapy, shock therapy and similar treatments is either misinformed or trying to deceive you. Even the broad term “conversion therapy” can be deceptive because it lumps the talk and aversive therapies together, and this case was exclusively about talk.
As is usual with Supreme Court decisions, the people trying to make you angriest probably aren’t telling you the whole story.
Backing up, though: If the text of the Constitution doesn’t comfort you, why should you care that the treatments in Skrmetti were drugs and the treatments in Chiles were speech?
Compare a teenage gender-clinic patient in Tennessee with a therapy patient in Colorado. The states’ laws, if constitutional, deny both of them something they might want.
The Tennessee gender-clinic patient and her doctor might think puberty blockers would save her life, but it doesn’t matter — Tennessee still bans the puberty blockers. Likewise, the Colorado patient and his therapist might think that talk therapy would reduce his psychological distress by making him more comfortable with his male body, but under the Colorado law, it doesn’t matter — that sort of talk therapy still counts as conversion therapy and it’s still illegal.
But note this: The Colorado law bans something important that the Tennessee law leaves untouched.
Under the Tennessee law, the patient may not be able to make the changes she wants to her body, but she is still free to get her doctors’ and therapists’ help in forming her opinions. The doctors and therapists are free to tell her their beliefs about gender identity, what it means and how to live with it.
Under the Colorado law, on the other hand, the patient is free to get a therapist’s help in forming his beliefs about gender identity — but only if the therapist agrees with the government’s official position. The Tennessee law, like all medical regulation, limits what people can do to their bodies, but the Colorado law limits what people can put in their minds.
If a Colorado therapist said during a therapy session that gender identity is often malleable, or that many teenagers experiencing gender dysphoria later become comfortable with their biological sex, or that living consistently with one’s body is healthier than transitioning — all of which statements are at least scientifically plausible — then that therapist could be fined or potentially lose her license because of her “efforts to change [her patients’] behaviors or gender expressions.”
If you agree with Justice Jackson’s dissent, then you have no problem with that punishment. Justice Jackson says this debate is over: The talk therapy banned by Colorado is “based on a view of gender diversity that runs counter to scientific consensus,” and if you’re a licensed therapist, the state can order you not to say things to your patients that run counter to the scientific consensus.
To which the Supreme Court majority says, in effect, that’s not how we do things here. It doesn’t matter how right you are, you still don’t get to stop the other side from expressing their opinions unless you have an extremely good reason for it — and current “scientific consensus,” by itself, isn’t going to be a good enough reason.
For myself, I don’t pretend to know what the best treatment is for youth who suffer from gender dysphoria. From my limited, untrained reading of the science, I suspect a lot more research needs to be done — in part because so much of what’s been done thus far was conducted under ideologically and politically charged circumstances that give me little confidence in its conclusions. (If you care about trans medicine issues and haven’t read Alabama’s amicus brief in the Skrmetti case, you really need to.)
But if our medical and scientific communities are ever able to reach a fuller truth on this, it won’t be because one side managed to prohibit dissent through laws like Colorado’s. Exactly the opposite is true: It will be because all sides are able to express their opinions and participate in the scientific, moral and religious debates that will need to happen along the way.
And in the meantime, if you think therapists shouldn’t be telling kids things about gender identity that you think are false, you’re free to try to stop them the civilized way. Gather your evidence, write up your arguments and try to persuade them.