Counselors speaking to clients are engaged in an act of free speech, Jim Campbell, Chief Legal Counsel of the Alliance Defending Freedom — who argued and won the Supreme Court case about so-called conversation therapy on transgender children — said during an appearance on Breitbart News Daily.
The Supreme Court this week ruled 8-1 against a Colorado “conversion therapy” law that banned therapists from helping minors align their “gender identity” with their biological sex. The justices overwhelmingly determined that the law likely violates the First Amendment by allowing some viewpoints (affirming delusions) but not others (helping children align with their actual gender).
Campbell briefly broke down the case, explaining that his client is a licensed counselor in the state of Colorado who found out about her state’s law enacted in 2019 essentially preventing her from being able to help confused children align their gender with their body. However, it allowed counselors to affirm confused children’s gender delusions.
“So the law is viewpoint discrimination, plain and simple. It says that if you’re counseling a young person and that young person, anyone under the age of 18, and they’re struggling with gender dysphoria, you can encourage them to gender transition, but you cannot help them get comfortable with their body and realign their identity with their sex,” Campbell explained.
“And so she filed a lawsuit challenging it, raising her First Amendment rights and saying that this impinges upon her speech. It impinges upon her client’s speech, and it prevents them from having the conversation that her clients want to have and pursuing the goals that the client set for themselves,” he said, noting that this case truly was focused solely on speech — not medical procedures.
“There are limitations, undoubtedly, in freedom of speech, and one of the things that we recognized in front of the court was that it’s different when you’re doing a medical procedure or you’re prescribing drugs, when you’re doing… things that are medical conduct,” he said, noting that the First Amendment’s free speech clause does not protect conduct.
“We quickly drew a distinction in front of the court between situations where someone’s performing a surgery, someone’s prescribing drugs, someone’s performing some kind of like physical therapy, all that conduct and it wouldn’t be protected by what we were arguing,” he said.
“What we were arguing for is a counselor who does nothing but engage in voluntary talk therapy with their client,” he made clear, explaining how lower courts got it wrong by saying this was “part and parcel of regulating the profession and the conduct in the profession.”
“The problem with that analysis, and this is what the 8-1 majority in the Supreme Court decision recognized, is that there is no conduct going on,” he said. Rather, his client was simply “engaging in speech.”
“She’s not a psychiatrist, who — psychiatrists also often will prescribe drugs. All she is is a counselor that has these conversations. And so the Supreme Court recognized in its decision, unlike the lower courts, that counselors speaking to their clients are engaged in an act of protected speech, and the First Amendment shields what’s going on in those in those counseling rooms,” he said.
He explained that determination makes sense in other contexts, as well. For instance, states should not be able to tell a counselor that they cannot help their married client reconcile with their spouse, but may only push for divorce.
“Similarly, the government shouldn’t be able to tell a counselor that they can encourage a child to pursue gender transition but not get comfortable with their body and align their identity,” he added.
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