As Judge Brett Kavanaugh faces confirmation hearings to become the next Supreme Court justice, the same anti-LGBTQ groups who have heavily endorsed him are also pushing cases through the courts to overturn measures protecting LGBTQ youth from conversion therapy. Conversion therapy is a harmful and discredited practice that seeks to change one’s sexual orientation or gender identity. These groups have seized on a June Supreme Court decision that may signal a shift in how the court handles communications in professional settings -- such as in therapists’ offices or clinics offering even limited health care services -- that have otherwise been regulated, claiming that those communications would be protected under the First Amendment. They argue that the decision suggests that regulating mental health professionals from subjecting LGBTQ people to a harmful practice like conversion therapy would be ruled unconstitutional because it would be imposing limits on “professional speech.” Media should consider these cases and a lack of transparency on Kavanaugh’s record on LGBTQ issues as he faces his hearing.
Senate hearings begin for Kavanaugh’s confirmation to the Supreme Court
Kavanaugh’s Senate confirmation hearings began on September 4 after LGBTQ advocates raised numerous concerns about how the court would rule on future LGBTQ cases if he is confirmed. There are many open questions about his record on LGBTQ issues, including his involvement with debates around “same-sex marriage, non-discrimination protections, and Don’t Ask, Don’t Tell” during his time as President George W. Bush’s White House staff secretary. Senate Republicans had long blocked access to records from Kavanaugh’s time as staff secretary, and LGBTQ legal organization Lambda Legal filed Freedom of Information Act requests for documents from that time to determine what role he played in anti-LGBTQ initiatives that the Bush White House supported. Just hours before hearings began, Bush's former lawyer "turned over 42,000 pages of documents from the nominee's service in the Bush White House," and Senate Democrats in turn asked to adjourn the hearing.
Kavanaugh has also highly praised late anti-LGBTQ Supreme Court Justice Antonin Scalia and called him a “role model” and “judicial hero.” Kavanaugh said that Scalia’s dissent in Obergefell v. Hodges, in which he decried the ruling that brought marriage equality to the entire country, demonstrated a judicial philosophy that the courts had “no legitimate role … in creating new rights not spelled out in the Constitution.” Additionally, extreme anti-LGBTQ groups have united behind Kavanaugh’s nomination and are calling for him to be confirmed. These groups have called him an “outstanding pick” and said he would “be strong on [their] issues.”
2018 has been a historic year for efforts protecting LGBTQ youth from conversion therapy
Advocates working to protect LGBTQ youth from conversion therapy have made history this year by “recalling” the dangerous and discredited practice and working to pass protections at the state and municipal levels at a record-breaking pace. This year alone, five states -- Delaware, Hawaii, Maryland, New Hampshire, and Washington -- have signed protections from conversion therapy into law. That means 14 states, Washington, D.C., and dozens of municipalities across the country now have laws and policies protecting LGBTQ youth from the practice. What’s more, these protections have bipartisan support, and governors from both sides of the aisle have signed conversion therapy bills.
But according to the Williams Institute, conversion therapy still remains prevalent throughout the country. In a groundbreaking January report, it estimated that 20,000 LGBTQ youth would “receive conversion therapy from a licensed health care professional before they reach the age of 18” in the 41 states that at the time did not protect youth from the practice. Furthermore, the report estimated that approximately 698,000 adults in the United States have undergone conversion therapy, including around 350,000 who underwent the practice before turning 18 years old.
Anti-LGBTQ groups who support conversion therapy are encouraged by recent Supreme Court ruling in case regarding anti-abortion pregnancy centers
On June 26, the Supreme Court decided NIFLA v. Becerra, a case involving a California law called the Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act. The law requires anti-abortion fake health centers to post a certain type of notice, depending on whether the center is licensed by the state. Licensed clinics are required to post a notice informing clients that California provides low-cost or free reproductive health care. Unlicensed clinics are required to post a notice informing people that they were not a licensed medical facility. As BuzzFeed News reported, “The court held in a 5–4 majority opinion written by Justice Clarence Thomas that the notice required of licensed clinics under the law ‘likely violates’ the First Amendment, but the notice required of unlicensed clinics ‘unduly burdens speech’ and is unconstitutional.”
Alliance Defending Freedom (ADF), an influential and extreme anti-LGBTQ group working to undermine LGBTQ equality in all aspects of life, represented clients in NIFLA. The group also represented a Christian baker who refused service to a gay couple in another Supreme Court case this year, Masterpiece Cakeshop v. Colorado Civil Rights Commission; the case saw a narrow ruling in favor of the baker and “left open the larger question of whether a business can discriminate against gay men and lesbians based on rights protected by the First Amendment.”
ADF and other anti-LGBTQ groups welcomed the NIFLA ruling, and some claimed that it signaled a shift in how the courts would treat “professional speech” under the First Amendment, including how it would treat protections from conversion therapy. The Atlantic’s Emma Green described “professional speech” as “a somewhat fuzzy legal category that allows states to require doctors and lawyers to disclose medical or ethical facts, for example.” In other words, in NIFLA and potentially other cases involving communications in medical and other regulated fields, the courts are weighing whether those communications are protected under the First Amendment even though these fields are typically regulated and patients and other people seeking medical advice could be put at risk if they receive inaccurate information.
According to Christian conservative outlet CBN News, Mat Staver, chairman of extreme anti-LGBTQ group Liberty Counsel, declared the ruling a “prize” for his and other anti-LGBTQ groups’ advocacy against a shelved bill in California (AB 2934) that would have categorized conversion therapy as fraud. Staver said that the bill, if passed, would have been dead on arrival because of the NIFLA ruling and that sexual orientation change efforts (SOCE) “cases are going to be a thing of the past." Liberty Counsel had been preparing to file a lawsuit againt the bill had it passed. ADF senior counsel Matt Sharp came to a similar conclusion and predicted that the ruling would “strongly call into question the foundation of AB2943.” Pro-conversion therapy group Alliance for Therapeutic Choice and Scientific Integrity (ATCSI) responded to the NIFLA ruling in an email blast, saying it and other recent decisions “have opened the door for overturning the therapy ban laws that have been passed over the past five years” and that it was “seeking to reopen” two of its previous challenges to conversion therapy laws alongside Liberty Counsel. Additionally, Family Research Council’s (FRC) Peter Sprigg wrote:
Like NIFLA in the pregnancy center context, defenders of the right to seek counseling to overcome unwanted same-sex attractions (and of the right to offer such counseling) have argued that free speech also protects their activities. In challenges to laws banning sexual orientation change efforts (SOCE) with minors by licensed mental health providers in California and New Jersey, they argued that such laws in effect limit what a counselor or therapist may say to a client in the privacy of his or her office, and thus infringe upon the free speech of the caregiver.
By affirming that “professional speech” is protected by the First Amendment, the Supreme Court has cast serious doubt on the constitutionality of bans on sexual orientation change efforts.
Conservative state-level advocacy groups affiliated with extreme national anti-LGBTQ groups are also enthusiastic for the NIFLA ruling’s potential impact on conversion therapy cases. For instance, the Pennsylvania Family Institute and the Massachusetts Family Institute (MFI) -- both affiliates of the Family Policy Alliance -- claimed the ruling could indicate that the high court could find protections from conversion therapy unconstitutional. (Family Policy Alliance is a partner of anti-LGBTQ group Focus on the Family that also works with ADF and FRC.) Similarly, the Illinois Family Institute announced that it is considering challenging the state’s protections against conversion therapy in light of the Supreme Court’s NIFLA’ ruling.
These groups are already challenging protections from conversion therapy in the courts
National anti-LGBTQ groups like ADF and Liberty Counsel have a long history of supporting and advocating for conversion therapy, and they are actively working to undermine protections from conversion therapy in courts and state legislatures across the country.
In June, Liberty Counsel filed a lawsuit on behalf of conversion therapy practitioners Dr. Robert Otto and Dr. Julie Hamilton against Boca Raton and Palm Beach County in Florida for their measures protecting LGBTQ youth from conversion therapy. In a press release about the suit, the group framed the issue as a matter of protecting “the speech of licensed professionals in the city and county who offer change counseling” and as a First Amendment violation, similar to the messaging around NIFLA’s impact on protections from conversion therapy. Liberty Counsel is also representing out-of-state conversion therapy practitioner Dr. David Pickup, among others, in a separate lawsuit against conversion therapy protections in Tampa, FL. Local news outlets have given platforms to Hamilton and Pickup to spread misinformation about conversion therapy. And before the Massachusetts legislature failed to get its bill on the governor's desk this year, MFI President Andrew Beckwith said that his group was “already working with attorneys at Liberty Counsel and Alliance Defending Freedom to challenge this bill should it become law” before asserting that the NIFLA decision “undermines the legal basis upon which” protections from conversion therapy rely.
These challenges aren’t new or unique for the group; Liberty Counsel has worked to overturn efforts to protect LGBTQ youth from conversion therapy for years, including failed attempts to challenge measures in New Jersey and California. According to ATCSI, the group is “seeking to reopen” those cases “and to challenge the laws passed in every state where ‘therapy ban’ legislation has be (sic) enacted.” Liberty Counsel's Staver even went on an anti-LGBTQ rant before a House subcommittee in which he called California and New Jersey laws prohibiting the practice “religious discrimination” and “one of the greatest assaults on children and families that has arisen in recent times.”
The Supreme Court has previously turned away multiple challenges to laws protecting LGBTQ youth from conversion therapy, but it could take up a case in the future given the recent ruling in NIFLA and new justices sitting or potentially sitting on the court. Following the NIFLA ruling, journalists have already speculated that the Supreme Court could take up a conversion therapy case in the future. While it is unclear how Justice Kavanaugh would side on a case about protections from conversion therapy, it is clear that the same extreme anti-LGBTQ groups challenging those measures in court are clamouring for his confirmation. These groups have claimed that Kavanaugh will defend their issues as a Supreme Court justice, and conversion therapy very much could be one of those issues that Kavanaugh has a chance to defend.