Conversion therapy, gender transitions and the Supreme Court

Opinion editor’s note: Strib Voices publishes a mix of guest commentaries online and in print each day. To contribute, click here. Minnesota is one of 25 states that have in recent years banned licensed mental health therapists from giving minors so-called “conversion therapy” — counseling aimed at reducing or eliminating unwanted same-sex attraction or transgender identity. Judging from oral arguments in early October, on the first day of the U.S. Supreme Court’s fall term, it seems likely these bans themselves may soon be reduced or eliminated, struck down as unconstitutional restrictions on free speech in a case challenging a Colorado law. If the high court majority bans conversion bans, the justices will have signaled anew, for better or worse, that they see constitutional limits to a kind of “house divided” compromise that has been taking shape, or trying to, in America’s culture war. It’s a trend the modern conservative court has at times done its share to advance, in which different states or localities enact and live under often starkly different policies on polarizing social issues, from abortion to transgender rights to school curricula to the death penalty to gun regulation to immigration and more. Of course, federalism — policy variation from state to state — is as old as our republic. It is the original American contrivance for balancing unity with diversity across a large multicultural nation. Controversy over just how far live-and-let-live tolerance can go also has a long and dramatic history. A fight over extending “popular sovereignty” concerning slavery to new territories triggered the Civil War. Much more recently, America seemed to be moving away from uniform traditionalism and toward a state-by-state patchwork of laws regarding the definition of marriage and the rights of same-sex couples until 2015, when the Supreme Court abruptly ruled that the Constitution required coast-to-coast legalization of same-sex marriage. Similarly, albeit from the opposite side of the cultural divide, the court has in several landmark cases restricted states’ and localities’ ability to regulate guns according to their own best judgments. More cases testing local control over guns are likely coming. Such rulings imposing national conformity contrast sharply with the most provocative Supreme Court case of our era — the court’s 2022 decision to overrule Roe v. Wade and turn abortion policy over to the separate states after 50 years of nationwide legal abortion. Some 19 states have since imposed differing levels of increased restrictions on abortion while the rest have codified abortion rights as liberal as those under Roe — or more so. So far, no congressional effort to reinstate a coast-to-coast abortion regime has advanced. (Stay tuned.)

Opinion editor’s note: Strib Voices publishes a mix of guest commentaries online and in print each day. To contribute, click here.

Minnesota is one of 25 states that have in recent years banned licensed mental health therapists from giving minors so-called “conversion therapy” — counseling aimed at reducing or eliminating unwanted same-sex attraction or transgender identity.

Judging from oral arguments in early October, on the first day of the U.S. Supreme Court’s fall term, it seems likely these bans themselves may soon be reduced or eliminated, struck down as unconstitutional restrictions on free speech in a case challenging a Colorado law.

If the high court majority bans conversion bans, the justices will have signaled anew, for better or worse, that they see constitutional limits to a kind of “house divided” compromise that has been taking shape, or trying to, in America’s culture war. It’s a trend the modern conservative court has at times done its share to advance, in which different states or localities enact and live under often starkly different policies on polarizing social issues, from abortion to transgender rights to school curricula to the death penalty to gun regulation to immigration and more.

Of course, federalism — policy variation from state to state — is as old as our republic. It is the original American contrivance for balancing unity with diversity across a large multicultural nation. Controversy over just how far live-and-let-live tolerance can go also has a long and dramatic history. A fight over extending “popular sovereignty” concerning slavery to new territories triggered the Civil War.

Much more recently, America seemed to be moving away from uniform traditionalism and toward a state-by-state patchwork of laws regarding the definition of marriage and the rights of same-sex couples until 2015, when the Supreme Court abruptly ruled that the Constitution required coast-to-coast legalization of same-sex marriage. Similarly, albeit from the opposite side of the cultural divide, the court has in several landmark cases restricted states’ and localities’ ability to regulate guns according to their own best judgments. More cases testing local control over guns are likely coming.

Such rulings imposing national conformity contrast sharply with the most provocative Supreme Court case of our era — the court’s 2022 decision to overrule Roe v. Wade and turn abortion policy over to the separate states after 50 years of nationwide legal abortion. Some 19 states have since imposed differing levels of increased restrictions on abortion while the rest have codified abortion rights as liberal as those under Roe — or more so. So far, no congressional effort to reinstate a coast-to-coast abortion regime has advanced. (Stay tuned.)