When courts rely on “expert consensus” without scrutinizing its underpinnings, they risk enshrining ideology, not truth, into law. And as discussed below, this concern is not hypothetical; it is evident in the record before this Court.¹

In the first part of this series, we saw the exciting news of the US Supreme Court deciding on the legality of therapy for minors with unwanted attractions to the same sex &/or confusion/insecurity about their gender, in Chiles v. Salazar. We outlined how the case will decide whether free speech or professional conduct will hold sway.

In 2023, the Supreme Court decided not to hear a similar case as a lower court had challenged the ban in Washington State (SB 5722). Justice Clarence Thomas was opposed to the Supreme Court not weighing in and wrote the following in his dissent:

“If there is any fixed star in our constitutional constellation, it is that no offcial, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein…

Yet, under SB 5722, licensed counselors cannot voice anything other than the state approved opinion on minors with gender dysphoria without facing punishment. Expressing any other message is forbidden — even if the counselor’s clients ask for help to accept their biological sex …That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.²

Justice Samuel Alito joined in the dissenting opinion. This brings hope of two potential votes against the current ban.

Evidence

In reading through several of the Amicus Briefs submitted for the Chiles v. Salazar case, I was thrilled to find one containing numerous testimonies shared by The Changed Movement. Their document highlights the protection of the right of self-determination and the protection of the counselor assisting the client with their wishes. Their stories note that counseling helped in the prevention of suicidal ideation and depression.

Another brilliant submission was an Amicus Brief by the Liberty Counsel. It’s tempting to quote the entire text, but here are just a few quotes:

When courts rely on “expert consensus” without scrutinizing its underpinnings, they risk enshrining ideology, not truth, into law. And as discussed below, this concern is not hypothetical; it is evident in the record before this Court.

…Indeed, as discussed below, the supposed harms of talk therapy rest on the slimmest of evidence—a handful of studies riddled with methodological flaws, as reported anecdotes, and the convenient omission of any inquiry into minors who might benefit from exploring these feelings in alignment with their faith or biological sex.

…There is no evidence-based “consensus” on therapy for minors with unwanted same-sex attractions and gender dysphoria. As Amicus has previously argued before this Court, mental health counseling that helps a client align their feeling and behaviors with their religious beliefs and biological reality—unlike invasive medical procedures involving drugs and surgeries—is First Amendment-protected speech. See Brief of Liberty Counsel in Support of Petitioner, United States v. Skrmetti, 144 S. Ct. 2679 (2024) (No. 23-477). And as Judge Hartz observed, to just suppressing speech, “there needs to be evidence, good evidence, to support that.” Chiles, 116 F.4th at 1237 (Hartz, J., dissenting). “A vote by a professional organization might be indicative that there is such evidence, but it is not a substitute.”

The authors go on to detail how flimsy the evidence is, based on assertions from anecdotes, while ignoring the stories from people like myself and others who have benefited from solid counseling. They provide the following list of studies that were not taken into consideration:

Yet clinical and scientific evidence has consistently demonstrated that exploring client’s unwanted same-sex attractions and behaviors through talk therapy is safe and effective. See, e.g., Paul Santero et al., Effects of Therapy on Religious Men Who Have Unwanted Same-Sex Attraction, 85 Linacre Q. 1–17 (2018); Stanton L.

Jones et al., A Longitudinal Study of Attempted Religiously Mediated Sexual Orientation Change, 37 J. Sex & Marital Therapy 404 (2011); Elan Karten et al., Sexual Orientation Change Efforts in Men, J. Men’s Studies 84–102(2010).

Common Sense

Chiles v. Salazar is also considering the benefit of talk therapy as opposed to medical intervention in the form of hormones and surgery for those under 18. Common sense tells us that the “affirmation-only” approach leads children to make irreversible changes to their bodies, which many later regret. If the argument from the mental health care professionals is to prevent harm, they have a glaring example of the long-term physical impacts that could be avoided through professional counseling.

The harm prevented by allowing those with unwanted attractions to the same sex to explore the possibility of fluidity is less obvious but still long-lasting. “Affirming,” or insisting that one temptation/desire will dictate their path in life, is limiting for a child with an unknown future. The Geld of professional counseling needs to be allowed the intellectual freedom to investigate and be open to other possibilities.

Please pray for the team who will be standing up to provide oral arguments later this year and for the Justices serving on this case. May wisdom and justice prevail.