The US Supreme Court Upholds Therapists' Rights to Free Speech
The court agrees: banning so-called ‘conversion therapy’ undermines therapists’ exploratory work with children, by Peter Jenkins
The US Supreme Court has issued another key decision in the legal struggle against gender identity affirming interventions for children. An overwhelming majority upheld the free speech rights of therapists working with minors, and returned the Colorado state ban on alleged conversion therapy for closer scrutiny. The majority Supreme Court opinion was delivered by Justice Gorsuch, leading a classic defense of the right to free speech, as applied here to a therapist working with minors. Thus, “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech” (2026: 23), given that “the spoken word is perhaps the quintessential form of protected speech” (2026: 11). Justice Jackson offered the sole dissenting opinion, starting from the premise that “talk therapy is a medical treatment” (2026: 15). Hence “scientific evidence supports the conclusion that the anticipated harms from conversion therapy are twofold…[it]…stigmatizes the patient… giving them an unattainable goal” (2026: 5).
Discussion arising in oral evidence perhaps came closest to engaging with the core therapeutic issues at stake, hidden behind lofty appeals to free speech principles. For Ms. Stevenson, Colorado Counsel, ultimately this case was about banning a specific form of therapy, laying great emphasis in this respect on the supporting amicus court brief of Dr. Jack Turban. Hence, the state ban “prohibits licensed professionals from performing one specific treatment because that treatment does not work and carries great risk of harm” (2025: 55). Mr Campbell, Counsel for plaintiff Kaley Chiles, decisively rebutted this: “All of those studies relied on biased sampling, self-reporting. They conflated aversive techniques with voluntary counseling” (2025: 96).
Court Process as Shadow Puppet Theatre
There is, however, a sense in which the back-and-forth of the legal arguments above seemed to almost adopt a form of shadow puppet theatre. This is not to say that the legal arguments and case law citations were unimportant in themselves. However, the real issues at stake were mostly off-stage and only occasionally managed to break through. The legal arguments were complex and abstruse (is the therapist engaged only in speech, or in speech and conduct? is therapy a form of medical treatment?) (The answer to the latter question might be, possibly in the US, but certainly not in the UK.)
Nevertheless, the conservative justices appeared to recognise that, beneath the case law and legal definitions, a bitter highly ideological battle was being waged. Hence, they brought out the parallels between banning conversion therapy and earlier bans on homosexuality, and psychiatry’s past fashionable use of lobotomies. And here lay the weakness of Colorado’s legalistic arguments. For Colorado’s counsel, conversion therapy was a definite thing, a definitive therapy modality, which needed to be banned as harmful. For Colorado Counsel, the ban was still needed, even if the days of classic electric-shock aversion therapy were reluctantly acknowledged to be long gone. In contrast, the conservative justices sensed a possible parallel between Chiles and the recent Skermetti case, in that there was some kind of unclear connection between so-called gender identity affirming medicine and the whole issue of banning conversion therapy.
Clearly, there is a strong, direct, and critical connection between gender identity surgery and protecting free speech for therapists. For a start, there really is no distinct therapy modality called ‘conversion therapy’. Conversion therapy is the ideologically convenient, if completely inaccurate, name for any therapy that does not immediately affirm the client’s internal sense of gender identity. Standard mainstream therapy uses exploratory methods as integral to its work. Affirmation immediately serves to block exploration, as trans ideologues fervently hope that it will. So, for the state of Colorado, relying on Turban-powered evidence of harm, conversion therapy is just like medicine, and thus needs to be regulated, just like medicine. Yet the judges kept circling back for yet another drive-by of the arguments and the evidence, like black-robed sharks, seemingly unconvinced that this was all a minor case of a state just wanting to keep its errant therapists in order.
Conversion Therapy is Not a Therapy Modality
The real truth here is that conversion therapy is not a single therapy modality. Aversive therapy belongs firmly in the past. Gender identity affirmative surgery depends critically on smooth referral pathways, operated by cowed, frightened, or heavily indoctrinated therapists. Standard exploratory therapy threatens to throw a massive spanner into the works within this process, or at the very least, to slow it down and make it almost unworkable. It therefore needs to be rebranded as conversion therapy and energetically banned by state licensure bodies. The Supreme Court justices worried away at this crucial point again and again, detail by detail, nuance by nuance. It was as if they could divine that silencing therapists in this process might well be the legal equivalent of stifling a generation of current and future potential whistleblowers in a slowly unfolding medical negligence scandal for the US (and also here in the UK) of absolutely catastrophic proportions.
And here we have it. Gender identity ideology is very much a fragile flower. It needs constant watering, constant affirmation just to survive in a hostile world. As a belief system, namely that changing sex is not only possible but essential, gender identity ideology simply cannot cope with the slightest form of disbelief. This, admittedly, presents a very real problem for therapy. Therapy, by its very nature, from psychoanalysis to cognitive behaviour therapy, from person-centred to integrative therapy, starts at the beginning. Exploration is key.
Affirming Clients, Not Their Ideology
Here, the language gets tricky and, too often, completely misleading. As therapists, we affirm the client in their possessing intrinsic value as another human being. We do not, however, take their world, their beliefs (‘assigned at birth!’) as true, but as true for them, maybe…for now. We explicitly do not affirm their beliefs, their whole ideology, without abandoning, without giving up, our own crucially independent role as therapists. Again, this is also the whole point. Affirming the client’s inner gender identity means abandoning our therapy for a cheap and easy form of advocacy. Which is why exploratory therapy, that is standard, mainstream therapy, is an absolute anathema for the ideologues. Thus, it desperately needs to be repackaged as conversion therapy and banned for good measure.
And, in case of any lingering doubt, just call up some convenient research, however questionable it may be: “Affirmation of gender identity is critical for the mental health and overall well-being of transgender and nonbinary (TNB) persons” (Mammadli et al, 2025: 157). And, in case of further real doubt, just list the professional therapy associations, which all call for a ban on conversion therapy, captured every single one, down to the last man and woman. Or perhaps seemingly captured, because there can be no doubt at all expressed within the professions that might undermine gender identity ideology. Absolutely no debate about conversion therapy can be permitted within the ranks. And one very final thing – there must also be no debate about ‘no debate’, otherwise some people might get upset. Very upset.
Responses to the Supreme Court Decision
The reactions to the court’s decision fall along predictably divided lines. The American Psychological Association was ‘disappointed’. The Trevor Project described the outcome as “a disappointing blow to hard-won protections for LGBTQ+ young people’s mental health”.
Kara Dansky, a well-known US commentator on legal battles over gender identity issues, took a carefully nuanced position, while supporting the decision overall as a significant gain for free speech rights. Yet, for Dansky, this was clearly not in any way a straightforward win, apparently giving legal protection to therapists in now supporting clients to reject their sexual orientation, as distinct from questioning their sense of gender identity. She rightly highlights that, for many gender critical therapists, this is a key point of difference with the Supreme Court decision.
One small survey (n: 89) of exploratory therapists has confirmed that these same therapists actually make a fundamental distinction between sexual orientation change efforts (SOCE) and gender identity change efforts (GICE), being “overwhelmingly opposed to SOCE”. Nevertheless, Dansky admits, “I still feel conflicted…some people (including me) don’t think therapists should be talking people out of sexual orientation…The right approach is not to prohibit speech regarding ideas or opinions”. So, by apparently enabling therapists to question clients about their developing sexual orientation, this is a mixed win for therapists. The latter option is unwanted, unnecessary and a distraction from our central concern about state pressure to affirm a client’s notional gender identity.
Lionel Shriver wrote a blistering piece in The Spectator on the sham politics of banning alleged conversion therapy while still permitting medicalised interventions for gender dysphoric youngsters. Shriver gets the point about the Supreme Court decision, particularly with regard to the otherwise dire implications for therapy: “When a 13-year-old girl announces that she’s really a boy, talk therapy should be the first line of defence.”
In the UK context, where a criminal law ban on alleged conversion therapy is now back on the cards again, her comments take on an added relevance and urgency. She was rightly acerbic about the ideologues’ reliance on the UK’s 2018 LGBT survey. This was presented as supposedly conclusive evidence in support of a criminal law ban, but, as Shriver acidly points out, “the survey didn’t define what constituted ‘conversion therapy’”.
Flawed Research and Conversion Therapy Bans
Yet I remember the 2018 UK LGBT survey slightly differently. The problem I perceived was that the very few questions asking about experiences of alleged conversion therapy didn’t match up with the criteria then used for discussing conversion therapy in the write-up of the survey’s findings. This meant that the whole data analysis was deceptive and completely unreliable. I set this out in a detailed discussion of LGBT research supposedly justifying legal conversion therapy bans, both here in the UK and also in a more draconian form in Victoria State, Australia. It seems to me that the more questionable the research—Victoria State relied on a cherry-picked sample of just 15 alleged victims—the more extreme and sweeping the conversion ban to which it then opens the door.
However, my proposed article for a house journal of the British Association for Counselling and Psychotherapy was rejected. This was on the grounds that it conflicted with BACP policy, which supported a legal ban on conversion therapy. My article might have given readers the wrong impression about the BACP’s stance. So, no debate about conversion therapy allowed there, then. And, for good measure, no debate permitted about the ‘no debate’ bit either.
Implications of the US Supreme Court Decision
Kaley Chiles’s case as petitioner always seemed to be something of a long shot, probably unlikely to win through on the somewhat legal-technical grounds of free speech, but it certainly got there in the end. The immediate effect has been to bounce the law back for reconsideration at the state level, but Colorado shows no sign so far of shifting away from enforcing its current ban on conversion therapy. Still, overall, the Supreme Court is yet another nail in the coffin of so-called gender identity affirming care, another step in dismantling the whole medico-financial enterprise of child and adult gender identity medication and surgery.
The court decision does raise important questions for us about using the free speech argument as a winnable strategy against the current blanket bans on free debate within the therapy and medical professions. Defense of free speech seems to carry much greater political traction within the US, as evidenced by this Supreme Court decision. In the UK, free speech rights are not clearly stated in quite the same constitutional sense. The specific rights of gender critical therapists, namely to challenge conversion therapy bans and the related denial of free debate within their own professions, currently rest on crucial case law, such as the Forstater decision, and their status as legally protected beliefs under the Equality Act 2010. In practice, however, free speech in the UK on gender identity issues has often been denied, through the threat, or actual use, of oppressive ‘Non-crime hate incident’ policing at a local level, and by a pervasive blackout and widespread failure of reporting in the legacy and social media at a national level.
The ban on alleged conversion therapy provides the foundation for the familiar refrain of ‘No to scientific research, no debate!’ within captured professional medical and therapy associations and even within the therapy room itself. In the past year, two of the three main supposed supports for gender identity affirmative interventions have been withdrawn. The three emotive claims are: that gender identity is an inherent and immutable characteristic; that gender affirming care reduces suicide risk; and that gender affirmative interventions improve overall mental well-being. In the Skrmetti case, decided by the US Supreme Court last year, Chase Strangio, Lead Counsel, admitted, under pressure by Justice Alito, that gender identity was not an immutable characteristic, and that suicide was a rare phenomenon (2024: 88; 98). Research from Finland now indicates that “Psychiatric needs do not subside after medical gender reassignment” (Ruuska et al, 2026: 1). So we are now witnessing the slow collapse of the underpinning rationale for gender identity affirmation.
The US Supreme Court’s decision thus represents a ringing endorsement of therapists’ rights to free speech. It provides us the space we need to challenge the current censoring both of professional debate and of our direct work with clients.
Peter Jenkins is a counsellor, supervisor, trainer and researcher in the UK. He has published a number of books on legal aspects of therapy, including Professional Practice in Counselling and Psychotherapy: Ethics and the Law (Sage, 2017).
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