In Its Conversion "Therapy" Ruling, the Supreme Court Draws the Wrong Line in the Sand

Conversion "therapy" has long occupied a fraught space in public debate, and rightfully so. Historically, it referred exclusively to therapeutic efforts at changing an individual's sexual orientation. Many critics argued that not only they are ineffective, but they actively harm the patient. More recently, the term conversion "therapy" has expanded to include gender identity. Over the past decade, a growing number of states banned such practices for licensed therapists working with children. 

The Supreme Court threw a wrench in that approach. In a decisive 8-1 ruling, the Court struck down Colorado's conversion "therapy" ban, holding that even controversial or disfavored therapeutic conversations are protected by the First Amendment. In other words, the government does not get the ultimate say on what viewpoints a therapist is allowed to express. 

At first glance, this case seems like a familiar clash between freedom of speech and government regulation. Many are inclined to either view this simply as a free speech victory or a rollback of protections for vulnerable children, pick a side, and go on their merry way. Neither of these gets at the core issue here. The harder truth to accept is that this ruling lumped together two fundamentally different issues. Until those are disentangled, it will be hard to draw the line where it actually belongs. 

Stop Messing With Kids' Sexual Orientation

In 2018, I wrote about how conversion "therapy" was harmful for those trying to change sexual orientation. The research for sexual orientation-specific conversion "therapy" spans decades. Multiple studies, including the 2009 APA Task Force review and various retrospective reviews, show that the practice fails to change sexual orientation and is associated with such harms as depression, low self-esteem, and suicidal ideation. 

For minors, the state has a narrow, legitimate role in preventing harm. Just as we intervene in response to murder, fraud, arson, or assault, protecting children from conversion "therapy" is defensible, even under a libertarian framework. 

I have argued that adults should be allowed to make decisions I might not agree with, such as having children before marriage, entering a polygamous marriage, regularly smoking cigarettes, eating fast food daily, or not exercising. I also believe that as long as they are not harming anyone else, adults should make whatever decision, even if it harms themselves. Conversion "therapy" for an adult is not an exception. As for a minor, that is a whole different matter, as previously discussed.  

Gender Identity: Affirmation Isn't a Prescription

Unlike the decades of research on sexual orientation-specific conversion "therapy", the evidence base on gender identity-specific conversion therapy is much thinner and only goes back to 2018. Plus, many studies lump together sexual orientation and gender identity conversion "therapy," which means that research on gender identity-specific conversion "therapy" is scant. Meanwhile, the practices that so many call "affirming," whether that is social transitioning, puberty blockers, hormones, gender reassignment surgery, are experimental, risky, and often harmful:

• A Finnish study released just this week showed that transgender children have increased psychiatric morbidity as a result of gender reassignment surgery. 
• The Cass Review, which is the most comprehensive review on the subject, concluded that gender affirming medical interventions do not improve long-term outcomes, reduce suicide risk, or reliably address gender distress. 
• A long-term Dutch study found that over 80 percent of adolescents grow out of gender dysphoria by adulthood without intervention, which is to say that most adolescents were never transgender to begin with. 
• England banned puberty blockers because they are shown to have some nasty side effects, like lower fertility, decreased bone density, deteriorating mental health, and a lower IQ.
• The American Society of Plastic Surgeons refused to endorse gender reassignment surgery because of insufficient evidence for long-term benefit, concerns about irreversible harm, and performing these procedures on developing bodies without clear, robust evidence. 

Here's an unpleasant truth. If gender "affirming" "medicine" is untested and harmful, then pressure to delay or question a minor's self-professed gender identity is not inherently evil. If anything, it is most likely a protective measure. Given that gender identity itself is conceptually incoherent, and medical interventions to affirm it carry real risk, withholding affirmation could plausibly spare children unnecessary harm. 

Protecting Children without the U.S. Becoming a Nanny State

Many of the Justices in this ruling framed this strictly as a First Amendment issue, claiming that the Colorado law was regulating speech based on viewpoint. If it were mere abstraction, I would wholeheartedly agree. Some might see my stance on conversion "therapy" in conflict with me defending abstract speech, such as opinions, insults, or political rhetoric. That apparent paradox dissolves once we recognize a core principle: speech is protected unless it is inseparable from conduct that reliably and objectively causes harm. 

Last year, I presented my case that words are not violence because abstract speech by itself does not cause objective harm. In 2018, I argued for the protection of hate speech because "hate speech" is often a cudgel for "opinion I dislike." I even argued for the First Amendment rights of pro-Palestine protesters protesting peacefully, which is quite the litmus test because I view them as the modern-day equivalent of Nazis. Where I drew the line with the pro-Palestine crowd was when their speech crossed over into the realm of harmful conduct. 

That concept applies here. Conversion "therapy" is not abstract speech or merely expressing an idea. It is a professional intervention in which a therapist uses speech as a tool with the goal of changing a child's sexual orientation. Even if conversion "therapy" has a component of speech, it is an embedded professional practice that has a direct, predictable record of causing harm. 

Conversion "therapy" is not the only scenario in which speech is a component of harmful conduct. With fraud, speech is inseparable from the act of taking someone's money under false pretenses. With direct threats and incitement, the harm is embedded into the speech itself. With perjury on the stand, the false statements can cause harm and legal or financial injury. Doctors or therapists giving advice or treatment that foreseeably harms clients is considered malpractice, and conversion "therapy" for sexual orientation falls under that category of malpractice.  

From a libertarian standpoint, this distinction is ultimately consistent. We protect words when they are abstract, subjective, and speculative in harm (which is the vast majority of words), but we allow narrow state intervention when speech is inseparable from predictable, harmful action. Regulating conversion "therapy" is not an attack on free expression. It is a principled defense of vulnerable children against a practice with a long-documented record of harm. At least for sexual orientation, it would sit comfortably alongside other recognized exceptions to the First Amendment.....if the Supreme Court ruled as such. 

The Wrong Line in the Sand

Instead, the Court chose to frame the case purely as a free speech issue while missing the crucial distinction between abstract expression and professional conduct that causes predictable harm. By choosing to protect conversion "therapy" for both sexual orientation and gender identity, the Court drew the wrong line when they should have drawn the line by protecting the speech for gender identity only.  

This decision has another dimension beyond the harm caused to children. It is a reflection of a broader problem in how LGBT discourse has evolved. By lumping sexual orientation together with gender identity in legal, social, and research contexts, the unique experiences and vulnerabilities of gay people ends up being overshadowed. The result is policies, rulings, and societal practices that leaves gay people more harmed, a concept I discussed in 2024 when arguing for the gay rights movement to divorce from the trans rights movement.

For sexual orientation-specific conversion "therapy," SCOTUS' ruling is a missed opportunity to defend minors while protecting libertarian principles, especially when it comes to the intersection of freedom of speech and the nonaggression axiom. It is a reminder that conflating distinct issues can have real-world implications for those who should, even under a libertarian framework, be protected.