SCOTUS Not Cool With Colorado Ban on Conversion Therapy

Summary

Strict Scrutiny: “SCOTUS Not Cool With Colorado Ban on Conversion Therapy”
March 31, 2026

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Episode Overview

In this emergency episode, hosts Leah Litman (joined by co-hosts, likely Melissa Murray or Kate Shaw) and guest Shannon Minter (Legal Director, National Center for LGBTQ Rights) break down the Supreme Court’s 8-1 decision in Chiles v. Salazar. The ruling puts Colorado’s ban on conversion therapy for minors, as applied to “talk therapy” by state-licensed mental health professionals, under strict scrutiny—the most demanding standard of constitutional review. Justice Gorsuch authored the majority opinion, with Justice Jackson alone dissenting. Justice Kagan, joined by Justice Sotomayor, filed a concurrence. The hosts explore why this decision is a serious setback for LGBTQ rights, how the Court’s reasoning departs from past precedent, and what it means for similar laws nationwide.

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Key Discussion Points and Insights

1. Quick Case Background — [02:08–03:15]

• The law at issue: Colorado’s statute prohibits state-licensed mental health providers from using therapeutic interventions to change a minor’s sexual orientation or gender identity.
• Importantly, the law is part of Colorado’s professional licensing regime—it doesn’t criminalize conduct outright or send violators to jail.
• The plaintiff argued that banning “talk therapy” discouraging gender identity or orientation amounted to unconstitutional viewpoint discrimination.

2. Supreme Court’s Ruling — [03:15–05:49]

• The Court found that Colorado’s law, as applied to talk therapy, “triggers strict scrutiny”—the highest bar for constitutional laws touching on protected rights.
• “They didn’t strike the law down. They are giving Colorado a chance to go back and see if they can meet [the strict scrutiny] standard.” – Shannon Minter [05:49]
• Eight justices sided with the majority (written by Gorsuch); Jackson dissented; Kagan’s concurrence (joined by Sotomayor) focused on viewpoint discrimination.

3. Majority’s Reasoning — [06:20–08:09]

• Main finding: Regulation of what a therapist says is both content- and viewpoint-based discrimination.
• The majority describes the law as permitting therapists to “affirm” but not to dissuade a child regarding their gender identity or sexual orientation, construing the regulation as punishing one side of a debate.
• Minter and hosts point out this is not what the statute actually does, nor does the word “affirm” appear in it.
• Notable quote on the Court's approach:
  “This is what we call textualism, Shannon. This is textualism. Prime Textualism 2.0. The words, they aren't there, but we're just going to say they're there.” – Co-host [07:27]

4. Problems With the Court’s Framing — [09:11–11:51]

• Minter notes that the law was carefully drafted to be neutral and to avoid viewpoint discrimination. The Court “seized on certain language in the statute and took it out of context.” [06:51]
• The majority ignores the professional context—that talk therapy by licensed providers is not merely speech, but regulated treatment.
• Hosts point out: “Talk therapy matters. It affects people.” – Leah Littman [22:41]
• Minter laments: “The analysis is so crude. It's so crude.” [24:03]

5. Justice Kagan’s Concurrence — [17:54–20:55]

• Kagan agreed strict scrutiny should apply because a hypothetical law banning affirming therapy would be clearly unconstitutional; therefore, this law is too.
• Minter disagrees, arguing Kagan fundamentally misunderstood the statute. “The law is not about, do you affirm a kid being gay or transgender, or do you disaffirm a kid being gay or transgender? It is about, can a therapist bring their own agenda to therapy… It is apples and oranges.” – Shannon Minter [19:54]

6. Implications for Similar Laws Nationwide — [20:55–23:06]

• The ruling affects not only Colorado but twenty-five other states with similar conversion therapy bans.
• Statistically, conversion therapy’s harms are extreme: “Nearly 2/3 of kids who are put into conversion therapy actually attempt suicide.” – Shannon Minter [21:14]
• The Court suggests (in passing) that victims could sue for malpractice after harm is done—but “at that point, cat’s out… the damage is done.” [23:01]

7. Could State Laws Be Redrafted to Survive Scrutiny? — [24:03–25:42]

• Minter thinks it’s possible to narrowly draft viewpoint-neutral laws; Kagan’s concurrence seems to leave room for this.
• However, there’s uncertainty about how the Court’s conservative majority would rule on even such reworded regulations.

8. Jackson’s Dissent and Broader Concerns — [25:42–29:05]

• Jackson’s “superb” dissent warns the ruling destabilizes professional regulation in medicine and therapy, with unpredictable consequences.
• Jackson questions: “Can a state ban psychologists from counseling their clients, you know, to commit suicide? …prohibit someone from telling a patient with an eating disorder you're beautiful but not yes, you're fat?”
• Host draws parallels to Court’s prior upholding of abortion-related “counseling” mandates: “That’s obviously viewpoint discrimination.” [27:07]
• Pattern of asymmetry: the Court allows conservative viewpoint-based regulations (e.g., abortion counseling) while striking down those protecting marginalized groups.

9. Context of Growing Anti-LGBTQ Momentum — [27:52–30:49]

• The episode situates Chiles v. Salazar amid a barrage of recent Court decisions and judicial rhetoric trending against LGBTQ and especially transgender people.
• Recent and pending cases discussed:
  • Mahmoud v. Taylor (opt-outs from LGBT-inclusive education)
  • West Virginia v. BPJ (trans athletes’ participation)
  • Mirabelli v. Banta (forcing teachers to out trans students)
  • “Between this case and that one, it feels like in some ways they are legalizing child abuse of trans kids.” – Host [29:06]
• Minter: “It’s particularly painful that this decision comes on the heels of the [Scrametti] decision, where the court went out of its way to reaffirm that regulating medical practice is an area of traditional state authority…” [27:52]

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Notable Quotes & Memorable Moments

• “This is textualism. Prime Textualism 2.0. The words, they aren't there, but we're just going to say they're there.” – Co-host [07:27]
• “Nearly 2/3 of kids who are put into conversion therapy actually attempt suicide.” – Shannon Minter [21:14]
• “Talk therapy matters. It affects people.” – Leah Littman [22:41]
• “At that point… the damage is done.” – Co-host [23:01]
• “The analysis is so crude. It's so crude.” – Shannon Minter [24:03]
• “The law is not about, do you affirm a kid being gay or transgender, or do you disaffirm a kid being gay or transgender? It is about, can a therapist bring their own agenda to therapy and try to direct the outcome, like, have the goal of therapy be to impose a particular sexual orientation or gender identity on a kid?” – Shannon Minter [19:54]
• “Between this case and that one, it feels like in some ways they are legalizing child abuse of trans kids.” – Host [29:06]
• Closing message to parents: “Please do not think that the Supreme Court just said that these practices are safe or effective or appropriate. They did not. They're very harmful. They will do nothing but harm your children and drive a wedge between you and your children at a time when your kids need you the most.” – Shannon Minter [31:04]

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Timestamps for Key Segments

• Background and case intro: [02:08–03:15]
• The Court's ruling explained: [03:15–05:49]
• Majority’s rationale and “textualism” critique: [06:20–08:09]
• Dissecting the free speech and viewpoint discrimination analysis: [09:11–11:51]
• Problems of context and professional standards: [17:54–22:09]
• Policy consequences for families and mental health: [21:14–23:06]
• Redrafting and statutory ambiguity: [24:03–25:42]
• Jackson’s dissent and broader precedent: [25:42–29:05]
• Broader context: attacks on LGBTQ rights and pending cases: [27:52–30:49]
• Affirming message to affected families: [31:04–31:32]

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Affirming Closing & Call to Action The hosts conclude by acknowledging the heartbreak in the LGBTQ community, reiterating support: “We love you here. Same goes for our gay, lesbian, bisexual listeners and listeners with family or loved ones who are gay, lesbian, or bisexual… Support the Trevor Project if you can.” [30:48]

Shannon Minter stresses that despite the ruling, conversion therapy remains “very harmful. They will do nothing but harm your children and drive a wedge between you and your children at a time when your kids need you the most.” [31:04]

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Summary Takeaways This episode offers a sobering, incisive analysis of why the Supreme Court’s approach in Chiles v. Salazar reflects a growing judicial hostility to LGBTQ rights, focusing especially on the dangers posed by treating harmful therapies as protected speech, and the challenge this creates for protecting vulnerable youth moving forward. The hosts urge vigilance, legal creativity in defending such bans, and reaffirm their commitment to LGBTQ families in a fraught climate.

Transcript

[Leah Littman]

Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You're not alone. If it feels like Groundhog Day every morning when you read the news or even listen to what we're talking about here on Strict Scrutiny. And while it's overwhelming seeing the trajectory our country is on, we all show up every day trying to find ways to make it better, to educate our neighbors and to fight for democracy. Our friends at Americans United have been doing the same thing day in and day out for almost 80 years. This year alone, they filed three separate lawsuits against Trump's anti Christian bias task force, which, spoiler alert, is anything but unbiased. AU has been tracking every mention of Christian nationalist rhetoric from this administration and partnering with many allied organizations to sue and protect our constitutional right of church state separation, the right that protects all of our abilities to be who we are and live as we choose, so long as we don't harm others. It's easy to get apathetic as we're all seeing and hearing these attacks on our freedoms every single day and watching a religion be weaponized for a power grab. Now isn't the time to give up, though. Now's the time to fight back against the growing authoritarianism in our country. Consider joining Americans United for Separation of Church and State. Learn more by visiting au.org Crooked because church, state separation protects us all

[Shannon Minter]

Mr. Chief justice, please. Court. It's an old joke, but when a

[Leah Littman]

man argues against two beautiful ladies like this, they're going to have the last word.

[Shannon Minter]

She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Welcome back to Strict Scrutiny, your podcast

[Leah Littman]

about the Supreme Court and the legal

[Co-host (possibly Melissa Murray or Kate Shaw)]

culture that surrounds it. I am your regular host for today's

[Leah Littman]

emergency episode, Leah Littman.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Happy Trans day of visibility, everyone. The Supreme Court just declared that it is viewpoint discrimination to affirm transgender individuals existence and not deny an individual's gender identity. Yes, we got the Supreme Court's opinion in Chiles v. Salazar, the case challenging Colorado's ban on conversion therapy.

[Leah Littman]

And here to discuss this case with

[Co-host (possibly Melissa Murray or Kate Shaw)]

me is Shannon Minter, legal director at

[Leah Littman]

the national center for LGBTQ Rights.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Shannon, thanks so much for joining and

[Leah Littman]

welcome to Strict Scrutiny.

[Shannon Minter]

I'm thanks, Leah.

[Co-host (possibly Melissa Murray or Kate Shaw)]

A quick preview of what we're going to try to cover in this short episode. The court held that the Colorado law, as applied to the particular mental health professional in the case that's professional in

[Leah Littman]

air quotes, triggered strict scrutiny.

[Co-host (possibly Melissa Murray or Kate Shaw)]

The most demanding form of review, and therefore the law needs to be evaluated by the lower courts according to that Standard. The decision is 8:1, written by Neil Gorsuch, hero of the LGBT community himself. Justice Jackson was the lone dissenter. Justice Kagan wrote a concurrence together with

[Leah Littman]

Justice Sotomayor to explain her view. We'll talk about that, don't worry.

[Co-host (possibly Melissa Murray or Kate Shaw)]

But more generally, we're going to explain what the court did say and what they didn't say and why it's still concerning and in my view reflects a

[Leah Littman]

real anti trans bent.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Okay, Shannon, first up, just basics. What is the Colorado law that was at issue in this case?

[Shannon Minter]

It's just a very straightforward law that says that state licensed mental health providers cannot subject a minor patient to therapeutic interventions that are attempting to change the minor's sexual orientation or gender identity. That's it.

[Leah Littman]

Yeah. That is a straight up ban.

[Co-host (possibly Melissa Murray or Kate Shaw)]

And as you say, it's part of a licensing regime for medical professionals. So it's not even like this law is gonna haul people off to jail. So what was the specific challenge that the plaintiff brought to this law?

[Shannon Minter]

It's based on a very crude, and yet it's a crude version of the first Amendment that the Supreme Court just endorsed. Eight to one. Is that because what she is doing or wishes to do consists of so called talk therapy, that any regulation of the treatment that she can provide is a regulation of speech. And that in her view, there's something about this law that is less than evenhanded, that, you know, says it's okay to support a young person for being gay and transgender, but that you can't try to dissuade them from being gay or transgender. I think it's a complete misreading of the law, but it's one that eight justices of the Supreme Court just endorsed. And they're like, yeah, this is talk therapy. That's speech restricting speech. Therefore, we're going to apply strict scrutiny.

[Co-host (possibly Melissa Murray or Kate Shaw)]

We are going to complicate that in a bit. But first, I just want to carve out that this was what's known as an as applied challenge. That is, the plaintiff was only challenging certain applications or certain uses of the law and maintained, and the court accepted that she was not challenging portions of the law that ban so called avulsive therapies like physical interventions or medications. She was challenging her allegations to the extent the law permits her to speak in ways that encourage or affirm an individual's gender identity or sexual orientation, but doesn't allow her, you know, to encourage an individual to Deny their gender identity or sexual orientation. That was kind of her theory of what was unconstitutional about the law. Okay, so, Shannon, you mentioned the court's version, crude version of the First Amendment. So let's walk through what the court held. And the primary holding in the case is about the appropriate standard of review. So could you just tell us what the court decided there?

[Shannon Minter]

Yeah. So the court said that insofar as this law restricts Kaylee Child's ability to engage in so called talk therapy, that's trying to dissuade a young person from being gay or transgender, that that is viewpoint discrimin. And just under boilerplate first amendment doctrine, therefore triggers strict scrutiny. I mean, they didn't strike the law down. They are giving Colorado a chance to go back and see if they can meet that standard.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Exactly. So what the court held is the law is subject to strict scrutiny. Now, of course, strict scrutiny is the most demanding standard of review. It remains for the lower courts to apply that standard. And I think it's fair to say the majority opinion kind of strongly suggests that they think it's unconstitutional. But formally that has yet to be decided. Okay, so let's walk through why the majority said this law triggers strict scrutiny. Could you kind of introduce us to some of the reasoning, such as it is?

[Shannon Minter]

Yes, yes. I mean, it's very frustrating, I must say. You know, someone very involved in helping to draft these laws, and believe me, we went to great lengths to ensure that they are not that they are even handed. But the court seized on certain language in the statute and took it out of context and read it as suggesting that the law is saying that it is okay to support or affirm, although the word affirm appears nowhere in the statute, does not appear in the statute.

[Co-host (possibly Melissa Murray or Kate Shaw)]

This is what we call textualism, Shannon.

[Leah Littman]

Right.

[Co-host (possibly Melissa Murray or Kate Shaw)]

This is textualism. Prime Textualism 2.0. The words, they aren't there, but we're just going to say they're there.

[Shannon Minter]

Yeah, very intuitive textualism. Exactly. So, yeah, the court says, well, we're reading the statute to say that you can support, affirm, sort of endorse a young person for being gay or transgender, but you cannot do the opposite. And therefore it favors the affirming viewpoint over the anti affirming viewpoint. All of which betrays a complete misunderstanding of therapy, a disregard for the words in the statute. But there you have it.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Okay, so let's just kind of unpack those steps. And as you were alluding to, the first step is the court's conclusion that this law regulates speech or in the Court's words, you know, the spoken word, the quintessential form of protected speech. And from there, the court then goes on to say the law represents something known as content discrimination and also viewpoint discrimination, both of which are disfavored when a law regulates speech. So as to content discrimination, the Court said Colorado seeks to regulate what Ms. Childs, you know, the therapist says. And similarly, on viewpoint discrimination, as you say, the Court says the law allows the therapist to express acceptance, support of gender identity and sexual orientation, but doesn't allow her to express support for someone denying their gender identity or sexual orientation. Okay, so you mentioned these steps have a lot of problems. So which step do you want to start at, Shannon?

[Shannon Minter]

Well, good Lord. Okay. Yeah. Where to begin? I mean, the whole. I think there's some strategic ambiguity in this decision about whether the majority opinion is squarely based on a content discrimination theory or viewpoint discrimination. The majority opinion talks about content discrimination, but then there's a concurring opinion by Justice Kagan, joined by Justice Sotomayor, that suggests that know that the real problem is viewpoint discrimination. So that's kind of interesting and leaves the door open, I think, for potentially even rewriting these statutes in a way that might not trigger strict scrutiny. So that was interesting. But, look, the language that the Court is reading about that it's okay to engage in treatment that is about supporting a young person, identity development, there's nothing at all on the face of the statute that says that that wouldn't apply equally to a young person who's saying, you know, I have real conflict about being gay or transgender that really conflicts with my religious beliefs. There is nothing in the statute that prohibits a therapist from working with such a young person as long as the therapist is not trying to impose a predetermined outcome or identity on that young person. And, I mean, that's why, you know, it just so happens the bitter IRONY Here is Dr. Julia Sadusky, who is one of the leading therapists in the country, who she herself is a very conservative Catholic therapist. She has pioneered a way of working with LGBT young people from conservative religious families that does not seek to impose a predetermined outcome on them that is not conversion therapy. She filed an incredibly powerful amicus brief with the court that explained why conversion therapy is never legitimate therapy, just. Or basic principles about therapeutic neutrality, about why it's harmful to families and children and conservative religious families, about how there are alternative treatment modalities that are competent, ethical, don't seek to impose predetermined outcomes, none of which you. I don't know if the court even read or amicus brief, but none of, none of this, like, you know, important. I don't even want to call it nuance. I mean, it's not even nuanced. This is just like the basic contours of the professional background about what constitutes legitimate therapy, incompetent therapy, and the viewpoint neutrality that was. We tried to bake that into the text of the statute, but that all fell on deaf ears with the current

[Co-host (possibly Melissa Murray or Kate Shaw)]

court not reading amicus briefs or statutes

[Leah Littman]

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[Co-host (possibly Melissa Murray or Kate Shaw)]

So I kind of want to focus on two parts of the reasoning and then we'll go on to potentially redrafting these statutes and the implications of the decision. But just at the threshold step about whether this law regulates speech, it seems to me that that conclusion is totally divorced from context. Because Colorado has not required every person in Colorado to go around affirming an individual's sexual orientation or gender identity. Instead, it has restricted what a medical professional does in a treatment setting. And in that context, you're not just regulating what someone says for the sake of saying it, you are regulating their provision of health care. And so ignoring that context is kind of where they start, you know, going wrong. And obviously I understand that states can't simply recharacterize laws as regulating conduct, or that in order to avoid the First Amendment, but that's just not what this statute does. You know, the question I wanted to ask you about, though, is on viewpoint discrimination, because this is where Justice Kagan joined with Justice Sotomayor, indicated they agreed with the majority. So Justice Kagan wrote a concurrence saying, the reason why I agree strict scrutiny applies is because this law represents viewpoint discrimination. And she posits a hypothetical law that instead of barring talk therapy designed to change an individual, a minor sexual orientation or gender identity, the law bars therapy affirming those things. And she says, because that would be not permitted, and that's viewpoint discrimination, this law is as well. What did you make of that hypothetical or question?

[Shannon Minter]

Yeah, it's sad, because, you know, this is. Justice Kagan. I know, I know.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Never. You know, it's just.

[Shannon Minter]

Oh, I know. It just represents such a fundamental misunderstanding of the law. There, again, the word affirm does not appear in the statute. The law is not about, do you affirm a kid being gay or transgender, or do you disaffirm a kid being gay or transgender? It is about, can a therapist bring their own agenda to therapy and try to direct the outcome, like, have the goal of therapy be to impose a particular sexual orientation or gender identity on a kid? It's just. There is apples and oranges. I mean, she is analyzing a law that is different than certainly the intention behind the Colorado law, and I think different than the actual words of the state statute.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Yeah. And I also think this move of saying, well, what's good for the goose is good for the gander just kind of ignores the political and legal landscape that we are living in. You know, that move doesn't really work, but that's a separate thing.

[Leah Littman]

Okay.

[Co-host (possibly Melissa Murray or Kate Shaw)]

So I do want to shift to the implications of this decision. What happens next? So what does this mean for LGBT individuals, LGBT families in Colorado, or people living in, I think, the 25 other states, you know, that also have conversion therapy bans.

[Shannon Minter]

Yeah. You know, it's not great. I mean, as you noted, you know, strict scrutiny is usually fatal. Now, I will say I don't. I don't foreclose entirely the possibility that Colorado might be able to prevail back in the district court, just given that the evidence is so strong that, I mean, like, more than 2. Nearly 2/3 of the site. Nearly 2/3 of kids who are put into conversion therapy actually attempt suicide, not just have suicidal ideation. And so there's zero evidence that this therapy provides any benefit. Two thirds of kids who undergo it attempt suicide. If this was Any other type of medical or mental health treatment where that was the case, there would be a no brainer. Of course, the state could ban it. So they may actually prevail back in the district court. I don't think we should rule that out. But in the meantime, you know, all the.

[Co-host (possibly Melissa Murray or Kate Shaw)]

And I just want to underscore that, like, those findings and those effects are not limited to the physical interventions of conversion therapy. You know, studies have found that there are also those negative effects, you know, increased depressions, suicidal ideations and whatnot. You know, with the talk therapy components as well.

[Shannon Minter]

Oh, gosh, yeah, yeah. I mean, this whole distinction between talk therapy and other forms is so maddening because, like the overwhelming, overwhelmingly, conversion therapy consists of talk therapy in this day and age. So to say that, well, this only applies to talk therapy is kind of meaningless. It's as much as to say you, that's what conversion therapy is now, more or less. So that's just that distinction is kind of what that difference.

[Leah Littman]

Talk therapy matters.

[Shannon Minter]

Right.

[Leah Littman]

It affects people.

[Co-host (possibly Melissa Murray or Kate Shaw)]

And I know that from personal experience. I also know that from observing the Supreme Court and seeing what the absence of therapy does to people. And Justice Gorsuch basically says, well, there's some possibility that you could sue someone if you receive bad medical advice or legal advice and you're harmed.

[Shannon Minter]

But.

[Co-host (possibly Melissa Murray or Kate Shaw)]

But, you know, at that point, you know, cat's out of the damage is done.

[Shannon Minter]

Right.

[Co-host (possibly Melissa Murray or Kate Shaw)]

You've already been home.

[Shannon Minter]

The damage is done.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Exactly, exactly.

[Shannon Minter]

I mean, look, that is very important. I wanted to make sure we got that in. I mean, the court, thank goodness, has a paragraph and they're saying these free speech concerns do not apply to malpractice claims. That is very significant. We've got a bunch of states taking action now to extend the statute of limitations for bringing those claims. That really does matter. But as you point out. Yeah, let's look. The talking in a mental health situation is the treatment. It's not expressive. The therapist is not expressing his or her own views about something. It is a treatment modality. I mean, Justice Jackson nailed that so beautifully in her descent. It is a form of treatment and not that different than a doctor looking at an X ray and verbally reading your X ray results to you. I mean, yeah. Again, not to beat this to death, but the analysis is so crude. It's so crude.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Yeah. So I do want to explicitly ask you the question that we've kind of referred to a few times, which is, could states like Colorado rewrite these laws to restrict these harmful practices in a way that wouldn't trigger strict scrutiny.

[Shannon Minter]

I think they could. I mean, I do think Justice Kagan's concurring opinion does suggest that if you can do this in a way that is very expressly, clearly, unmistakably viewpoint neutral, that the court, at least she and Justice Sotomayor would have a different view of the standard to be applied. Yeah, so I think. Yeah, I think they definitely have left the door open to that.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Yeah. You know, I should say that like Justice Kagan, theory is that some other laws would be content restrictions, but not viewpoint restrictions and that maybe content restrictions were acceptable in this situation. You know, my concern is, well, even if Justice Kagan and Justice Sotomayor believe these are content restrictions, you know, would the Republican appointees say the same to form a majority? And in particular, you know, if you

[Leah Littman]

have a law that says mental health

[Co-host (possibly Melissa Murray or Kate Shaw)]

professionals can't provide treatment that falls below professional standards of care or cause harm, that law is going to do the same things that this Colorado law does. And I don't know what the Republican appointees would say as far as whether that is permissible.

[Shannon Minter]

They really sidestepped that whole question in this opinion. I do think it's strategic ambiguity and I don't know how that would come out. But as Justice Jackson points out, there's all kinds of regulations of mental ill treatment that are content based. So what's right now takes a position

[Co-host (possibly Melissa Murray or Kate Shaw)]

on what is safe and what works. Okay, so we've alluded to the Justice Jackson dissent. You know, I want you mentioned, you know how excellent it is. It is superb. Would strongly recommend reading it. You know, there was one passage that alluded to the implications this case could have, you know, beyond laws like Colorado's and the LGBT community, because as Justice Jackson notes, you know, before now, licensed medical professionals had to adhere to standards when treating patients. Today the court turns out its back on that tradition. And to be completely frank, no one knows what will happen now. You know, can a state ban psychologists from counseling their clients, you know, to commit suicide? Can a state ban mental health professionals for validating clients choice to have an abortion? Can you prohibit someone from telling a patient with an eating disorder you're beautiful but not yes, you're fat or telling them COVID 19 vaccines cause you to be gay and ivermectin works well as treatment? And you know, the Calvin Ball aspects of this, which is what I want to turn to next, are underscored by, for people not familiar with another holding of the Supreme Court's decision in Planned Parenthood v. Casey in that case, the Court upheld portions of a law that required doctors to inform patients about options other than abortion to counsel their patients in a particular direction. That's obviously viewpoint discrimination.

[Leah Littman]

And lower courts have sustained heartbeat laws

[Co-host (possibly Melissa Murray or Kate Shaw)]

that provide false and misleading information to patients, you know, horrifying scripts that suggest, you know, abortion will cause suicide when that's false. And courts have upheld that. And so I'm just concerned about this asymmetry, you know, and courts ability to say, well, that's permissible licensing regulation of professional speech. This is impermissible viewpoint discrimination. And so, you know, Shannon, I kind of previewed my views up top, and I will go on that rant in a second, but I did want to invite you to kind of situate this case in the context of so many of the Court's other cases that really seem to take aim at the LGBT community generally and transgender people specifically.

[Shannon Minter]

It really is concerning. Yes. You know, I mean, it's particularly painful that this decision comes on the heels of the Scrametti decision, where the court went out. Went out of its way to reaffirm that regulating medical practice is an area of traditional state authority, that states have tremendous latitude to do that where there's any uncertainty.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Where the Court said, this can't be sex discrimination, that triggers heightened scrutiny because it's regulating medical treatment.

[Leah Littman]

Right.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Same move Colorado is trying to make here. Anyway. Sorry.

[Shannon Minter]

And, Casey. Yes. Where the court said, hey, it's fine to regulate speech if it's part of the. Part of medical treatment. Like, why does that principle not apply here? It's. It's really baffling. And I'm. I know. Just again, I'm really so disappointed that Justice Kagan and Justice Sotomayor went along with such a. I mean, it's incredibly crude. They literally holding that. That Casey principle only applies when there's some physical treatment involved, which is, I don't know, doctrinally. Seems nonsensical to me. But, you know, we have an A1 decision now, so I, you know, here we are.

[Leah Littman]

Right. Yeah.

[Co-host (possibly Melissa Murray or Kate Shaw)]

And in addition to Scarmetti, you know, I wanted to remind listeners of last term's decision in Mahmoud vs. Taylor, where the court said parents have a First Amendment right to opt their children out of education. That includes reading storybooks with LGBT characters, because those books present an objective threat, you know, to the parents, religion. You know, we are waiting on the Supreme Court's decisions in Little vs. Hecox in West Virginia vs. BPJ about whether states can ban trans athletes from participating in sports. We are less than A month away from the court's decision in Mirabelli vs. Banta, where the court said parents have a right to out their kids, you know, as transgender. And between, you know, this case and that one, it feels like in some ways they are legalizing child abuse of trans kids. And the broader cultural context for this is you have statements from judges, you know, just this last week, Judge Matthew Kaczmierak in the published remarks in which he suggests recognizing LGBT individuals as contrary to the truth as declared in Genesis. And this decision, you know, in trials, comes on Sam Alito's birthday eve. And it's just so much awfulness and hate directed at the LGBT community and very just demoralizing. And, you know, with that kind of in mind, I did want to close the episode on a more positive and affirming note. You know, to our transgender listeners, you know, to people with transgender children, we love you here. Same goes for our gay, lesbian, bisexual listeners and listeners with family or loved ones who are gay, lesbian, or bisexual. Go listen to some Kim Petras her music.

[Leah Littman]

Amazing.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Go listen to Muna what I Want. Great song. Support the Trevor Project if you can. You know who provides wonderful resources to LGBT individuals, particularly LGBT minors. Shannon, I will leave you with the final words, since you are the expert.

[Shannon Minter]

Well, thanks so much, Leah. I mean, thanks for covering this. And yes, I just want to speak directly to parents of LGBT young people and say, please do not think that the Supreme Court just said that these practices are safe or effective or appropriate. They did not. They're very harmful. They will do nothing but harm your children and drive a wedge between you and your children at a time when your kids need you the most.

[Co-host (possibly Melissa Murray or Kate Shaw)]

Yes, thank you so much, Shannon Minter,

[Leah Littman]

for sharing your expertise and your time with us today.

[Co-host (possibly Melissa Murray or Kate Shaw)]

And thanks, everyone, for listening.

[Leah Littman]

Strict Scrutiny is a crooked media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrienne Hill. Matt de Groat is our head of production. And thanks to our video team, Ben Hethcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube. Strict Scrutiny podcast, so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.