Sixth Circuit likely to block Michigan from enforcing conversion therapy ban

(CN) — A Sixth Circuit panel appeared on Thursday to lean in favor of a Michigan Catholic ministry having a constitutional right to administer conversion therapy to minors.

The Catholic Charities of Jackson, Lenawee and Hillsdale Counties, a Roman Catholic ministry that offers counseling for “troubling emotions, thoughts or behaviors,” sued Michigan Governor Gretchen Whitmer and the members of the Michigan Board of Counseling in July 2024.

They challenged Michigan’s 2023 ban on conversion therapy for minors, defined by Whitmer as any treatment by a mental health professional that seeks to change an individual’s sexual orientation or gender identity. They say the law is impermissibly vague, and violates free speech rights and free exercise rights since its in-house counseling is based on its religious faith.

On Thursday, the three-judge panel battered Assistant Attorney General Christopher Braverman with hypotheticals to discern the exact boundaries of the law, which they said might not be clear enough to satisfy heightened scrutiny.

Braverman argued that talk therapy is clinical treatment that the state is well within its rights to regulate as it would telehealth appointments with nutritionists, for example. There, the treatment is spoken nutritional advice that is content regulated for the safety of patients.

U.S. Circuit Judge Raymond Kethledge, in particular, was determined for Braverman to cede that on its face, the law essentially says therapists can talk about gender transition, but the conversation cannot go in the other direction.

“I guess you aren’t answering [my question], but it seems to me Orwellian to say that this is not making a distinction based on the content of what the therapist says, and that might be okay if you can get to an off ramp,” Kethledge, a George W. Bush appointee, said.

Braverman disagreed with Kethledge on that point and stuck firm to his argument that the law prohibits a therapist from having the primary goal of changing the patient’s identity. Professional conduct, he said, can and should be regulated.

“A therapy session is not the town square, and the therapist’s chair is not a platform to communicate a particular message or viewpoint,” the state said in its appellate brief. “Conversion therapy is neither speech nor religious exercise. It is professional conduct.”

Attorney Luke Goodrich argued on behalf of the ministry that since talk therapy is a “voluntary conversation consisting entirely of spoken words,” it is subject to the First Amendment.

The judges struck back at Goodrich’s claims that the state can’t regulate talk therapy because it’s all words and no actions.

As example, U.S. Circuit Judge Joan Larsen, a Donald Trump appointee, said that it would be okay for the state to forbid a therapist from instructing a patient on how to kill themselves, or to forbid a doctor from prescribing cigarettes for weight loss.

Goodrich said that a law prohibiting doctors from prescribing cigarettes for weight loss would survive strict scrutiny because there is ample data of its health dangers, whereas there is not strong evidence of the dangers of conversion therapy.

Conversion therapy has been widely condemned by medical professionals as ineffective and ultimately harmful. The American Psychological Association and 13 other medical professional organizations say it is not a legitimate therapeutic treatment.

The panel — consisting also of U.S. Circuit Judge Rachel Bloomekatz, Joe Biden appointee — voiced concern over the clarity of the law, pointing to a hypothetical teenage boy’s mission to become straight. They asked Braverman whether that boy could be treated in that way, and his answer was a complicated no.

The law draws a line between an impermissible predetermined outcome of change and the permissible facilitation of identity exploration, Braverman said.

The ministry had appealed a decision by U.S. District Judge Jane Beckering, a Joe Biden appointee, denying a preliminary injunction blocking the state from enforcing the ban, finding that the law regulates conduct — not speech — and the law is not vague.

The ministry argues that both itself and the children and families who might seek its “compassionate counseling” services for gender dysphoria are suffering immediate and irreparable harm every day that the law is in effect while its constitutional challenge works through the Western District of Michigan.

The U.S. Supreme Court heard oral arguments on Tuesday on a similar constitutional challenge to a conversion therapy ban in Colorado. The panel in this case said that they have a duty to decide the Michigan case before the Supreme Court decides the Colorado one.

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