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(CN) — In a 2-1 decision along party lines, a Sixth Circuit panel gave a Catholic charity another shot at taking down Michigan’s ban on conversion therapy.
The ruling reverses a federal judge’s denial of a preliminary injunction that would have barred Michigan from enforcing its ban of the controversial practice designed to transform a person’s sexual orientation or gender identity.
U.S. Circuit Judge Raymond Kethledge, a George W. Bush appointee, found that Michigan’s ban violated the Catholic Charities of Jackson, Lenawee and Hillsdale Counties’ First Amendment rights by both regulating the content and viewpoint of plaintiffs’ speech.
The Roman Catholic ministry says it offers counseling for “troubling emotions, thoughts or behaviors” and sued Michigan Governor Gretchen Whitmer and the members of the Michigan Board of Counseling in July 2024.
They say the 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 — is impermissibly vague, and violates free speech rights and free exercise rights since its in-house ‘counseling “talk therapy” is based on its religious faith.
“Other content-based laws regulate ‘speech by its function or purpose,’” Kethledge wrote in the majority opinion. “The law at issue here does that: it bans counseling ‘that seeks to change an individual’s sexual orientation or gender identity, including, but not limited to, efforts to change behavior or gender expression[,]’ among other things.”
He added, “Worse, the Michigan law discriminates based on viewpoint — meaning the law permits speech on a particular topic only if the speech expresses a viewpoint that the government itself approves.”
Kethledge also pushed back on Michigan’s claim that plaintiffs lacked standing, noting that the law threatened the plaintiffs with the loss of their licenses, and with fines up to $250,000, if they engage in conversion therapy.
“As a result, the plaintiffs’ discussions with their minor clients about gender identity and sexual orientation are now ‘more guarded and cautious,’ rather than ‘open’ and ‘candid,’” Kethledge wrote. “Those facts are enough to show that the law ‘chills’ the plaintiffs’ speech — which is ‘the first and most important factor’ in determining whether they are subject to ‘a credible threat of enforcement.’”
Luke Goodrich, senior counsel at Becket and lead attorney for the plaintiffs called the ruling a victory in a statement.
“Michigan’s law was pushing children toward irreversible medical procedures that cause lasting harms. This ruling ensures that children who want it can receive compassionate, evidence-based counseling that alleviates their distress and helps them embrace their bodies without resorting to irreversible, life-altering medical interventions," he said.
U.S. Circuit Judge Joan Larsen, a Donald Trump appointee, concurred with Kethledge’s opinion, but the lone liberal judge on the panel, U.S. Circuit Judge Rachel Bloomekatz, noted in a dissent that conversion therapy was developed when homosexuality and gender conformity were considered mental disorders.
The Joe Biden appointee said in the dissent that Michigan joined 26 other states in restricting the practice after scientific evidence found the therapy harmful and ineffective.
“The majority opinion’s contrary analysis makes several missteps, all emanating from its characterization of conversion therapy as speech like any other personal expression, rather than as the practice of medicine,” Bloomekatz wrote.
She added that there is a physical component to the words used by therapists performing conversion therapy.
“Just like medical professionals outside psychotherapy may recommend behaviors to engage in (or refrain from) to improve a patient’s health, so too for a therapist seeking to change a patient’s sexual orientation or gender identity,” Bloomekatz wrote. “They might tell their patients to wear (or not wear) clothes based on social norms for the patient’s biological sex, avoid particular locations like gay bars, try being romantic with members of the opposite sex, or refrain from masturbating to homoerotic imagery. Both types of medical professionals use speech to direct a patient’s physical actions.”
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 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 is weighing 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.
Representatives for the defendants did not immediately respond to a request for comment.
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