On Monday evening, President Trump nominated Judge Brett M. Kavanaugh to serve on the U.S. Supreme Court. Praised by Trump as “one of the finest and sharpest legal minds of our time,” Kavanaugh, 53, is set to face a contentious Senate confirmation process. Democratic lawmakers will grill Kavanaugh on a range of constitutional matters, from abortion rights to the limits of executive power.
In addition to these important issues, senators should ask Kavanaugh about LGBTQ rights, especially related to the controversial practice of “conversion therapy.” On three occasions, the Supreme Court has turned away challenges to California’s 2012 ban on conversion therapy on minors. But after a series of decisions handed down last month, the court is poised to protect a practice that most medical officials deemed dangerous decades ago.
Since UCLA’s Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy estimates that nearly 80,000 youths will undergo conversion therapy, either from a licensed health-care professional or a religious or spiritual adviser, before they reach adulthood, proponents of LGBTQ rights deserve to know where Kavanaugh stands on this issue.
Conversion therapy is an umbrella term used to describe gender identity therapies and efforts to change sexual orientation. For more than a century in the United States, therapists and counselors have tried to eliminate, or at least diminish, their patients’ same-sex desires. Some have also used a range of methods to increase opposite-sex attraction. From the time of Freud, psychiatrists and sexologists used the word “convert” to describe the therapeutic goals they had for their patients. To achieve that conversion, therapists and doctors have used techniques ranging from talk therapy to electroshock. In the immediate postwar years, some medical professionals even used lobotomies to try to change their patients’ same-sex desires.
Conversion therapy was especially popular in the 1950s and early 1960s. In a period of intense conformity, homosexuality was seen as a threat to the social order. The American Psychiatric Association (APA), in the first edition of the Diagnostic and Statistical Manual (DSM) in 1952, labeled homosexuality a sociopathic personality disturbance. According to this designation, homosexuals were “ill primarily in terms of society and of conformity with the prevailing cultural milieu, and not only in terms of personal discomfort and relations with other individuals.” In other words, homosexuals were sick because they weren’t like everyone else.
Beginning in the mid-1950s, gay rights activists protested this pathological designation of homosexuality. Barbara Gittings and Frank Kameny, two gay rights pioneers, were especially important in challenging homosexuality’s status as a mental illness. In 1973, the American Psychiatric Association’s Board of Trustees voted to remove homosexuality from the DSM. Over the next 15 years, the APA created several more diagnostic categories that condoned treatment for men and women uncomfortable with their same-sex desires. By the late 1980s, the APA had removed the last of these designations involving homosexuality from the DSM.
But while the medical community began warning about the dangers of efforts to change sexual orientation during the 1990s, it has yet to be resolved as a legal issue. California passed the first ban on conversion therapy for minors in 2012. This law prevents state-licensed therapists and counselors from providing conversion therapy. (Significantly, the law does not include religious counseling.) Twelve other states have since banned licensed professionals from providing sexual reorientation for minors.
But the issue has galvanized many on the right who view these bans as violations of the First Amendment’s free speech and free exercise clauses. Last week, Maine’s Paul LePage became the first governor to veto a bill that would have prohibited licensed mental health professionals from practicing conversion therapy on minors. LePage’s veto message expressed concern about how the law could impinge on religious liberty.
And now, two Supreme Court decisions have given hope to practitioners and proponents of conversion therapy. The first was last month’s Masterpiece Cakeshop v. Colorado Civil Rights Commission. In a narrow ruling, the court decided that the Colorado Civil Rights Commission had violated Jack Phillips’s free exercise of religion. In the majority opinion, Justice Anthony M. Kennedy — whom Kavanaugh was nominated to replace — wrote that the commission did not provide religious neutrality in its hearing on whether Phillips could refuse to bake a wedding cake for a same-sex couple.
More important for the future of conversion therapy, however, might be the decision in National Institute of Family and Life Advocates v. Becerra, also decided in June. NIFLA concerned a California law that required antiabortion crisis pregnancy centers to inform women about the state’s family-planning services. Some of these crisis centers pushed back. Many have a religious mission and oppose abortion on these grounds. In their suit, the centers contended that the California law violated the First Amendment’s free-speech clause. The Alliance Defending Freedom, a conservative nonprofit group devoted to “the right of people to freely live out their faith,” took up the cause of the crisis pregnancy centers.
In a 5-to-4 decision, the Supreme Court sided with the centers. Justice Clarence Thomas argued that California’s law “imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from the State’s informational interest.” Justice Kennedy went even further in a concurring opinion. Kennedy contended that the California law “is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” If this wasn’t scathing enough, Kennedy said that “history . . . shows how relentless authoritarian regimes are in their attempts to stifle free speech.”
Advocates of conversion therapy were thrilled with this decision. In an email, the Alliance for Therapeutic Choice and Scientific Integrity (ATCSI), a professional organization that refers individuals with “unwanted homosexual attractions” to licensed mental health practitioners, declared that “the long fight to protect client rights for those with unwanted same-sex attractions is beginning to show results!” The ATCSI pointed to parts of Thomas’s decision about professional speech.
Thomas wrote that the Supreme Court has never recognized professional speech “as a separate category of speech subject to different rules.” This is important because when it upheld California’s conversion therapy ban, the U.S. Court of Appeals for the 9th Circuit opined that the “First Amendment does not prevent a state from regulating treatment.” In NIFLA, Thomas, seemingly disagreeing with the 9th Circuit’s ruling, wrote, “Speech is not unprotected merely because it is uttered by professionals.”
Speaking Monday night, Kavanaugh said it would be his responsibility as a Supreme Court justice to “interpret the Constitution as written, informed by history and tradition and precedent.” We are headed into uncharted territory, where LGBTQ rights will continue to clash with conservative understandings of free speech and religious liberty. The Supreme Court is likely to rule on the constitutionality of state and local bans on sexual-orientation change efforts in the near future. Senators owe it to the American people to ask Kavanaugh tough questions about this important issue.