The Sixth Circuit just held that Michigan’s talk-therapy ban infringes free speech. Pending at the Supreme Court, in Chiles v. Salazar, is the constitutionality of Colorado’s equivalent law, which was argued in October. And the Sixth Circuit panel could fairly foreshadow the justices’ upcoming decision. Judge Kethledge and Judge Larson formed the majority with Judge Bloomekatz dissenting.
Conversion talk-therapy is controversial. The opinion explains that detractors argue the therapy is “ineffective and harmful,” while the plaintiff therapists say that it helps patients “become more comfortable with their biological sex and thus decrease the dissonance between their gender identity and biological sex.” The therapy involves no medication or physical intervention, just “spoken words and nothing more.” But Michigan passed a law banning all therapy that includes counseling “to change an individual’s sexual orientation or gender identity” other than to assist someone in a “gender transition.”
In Catholic Charities v. Whitmer, several plaintiff therapists challenged that ban on First Amendment grounds because they provide conversion counseling in the form of talk therapy. The Sixth Circuit’s opinion, written by Judge Kethledge, first held that the therapists had standing because the law chilled their speech and placed them under a credible threat of enforcement. On the merits, the panel found the law drew both content- and viewpoint- based speech distinctions. The ban forbids counseling to align identity with biological sex but allows counseling to assist “a transition away from biological sex,” even when the providers deliver therapy by talking. That amounted to Michigan taking sides and preventing “therapists from advancing any other perspective.”
The law found no First Amendment “off ramps” to circumvent strict scrutiny. It was no defense that Michigan was merely regulating the medical profession, because the regulated medical treatment “consists solely of spoken words.” The government cannot evade the First Amendment with labels. Nor could the State characterize therapy as conduct (the act of providing service), because “when the putative conduct ‘triggering coverage under the statute consists of communicating a message,’ the restriction is treated as one on speech.” As Judge Kethledge mentioned in the argument, the speech–conduct distinction can be “illusory.” The therapist’s particular message triggers this law, and also triggers speech protections. Concluding, the court held that Michigan’s conversion-therapy ban would not be the “first-ever viewpoint-discriminatory restriction” to survive strict scrutiny.
Judge Bloomekatz dissented at length. From the mantle of federalism, she protested that the majority’s reasoning “threatens to subject wide swaths of medical regulations to strict scrutiny” despite States’ “historic power to regulate medicine.” Framed as “medical treatment,” Judge Bloomekatz continued, the case resembles Skrmetti, which reaffirmed that patients lack a fundamental “right to receive a medical treatment that the state has determined is ineffective and harmful.”
Judge Bloomekatz also asked why the court should “forg[e] ahead” rather than await a Supreme Court decision in Chiles? The majority answered that preliminary-injunction appeals “are by definition time-sensitive,” leaving the court no time to slow walk its “unflagging obligation” to decide the case. (Sidenote: Section 1657 of Title 28 says federal courts “shall expedite the consideration of … any action for temporary or preliminary injunctive relief.”)
Either way, the Supreme Court will likely decide the issue this term. Judges Kethledge and Larsen have had some success convincing the Supreme Court in the recent past, including in NFIB v. OSHA (siding with Judge Larsen’s dissent) and Loper Bright v. Raimondo (favorably citing Judge Kethledge). And Colorado has been unsuccessful in the First Amendment cases of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 303 Creative v. Elenis and Counterman v. Colorado. But Judge Bloomekatz’s thorough dissent will certainly connect with several justices that supported Colorado at oral argument. Although the Court has over eighty amicus briefs on the merits, we won’t be surprised if the Supreme Court justices draw from both of these compelling Sixth Circuit opinions.
