Let’s say that a licensed therapist held the sincere religious belief that people can be demonically possessed, and the therapist accepted children, whose parents had convinced them that they are demonically possessed, as clients for the purpose of driving out the alleged demon or demons (gently, using only “talk therapy”).
Should the state of Colorado be able to say ‘no, that’s total bullshit, and licensed psychotherapy cannot be used as an excuse to council or facilitate exorcism?’ Yes, obviously. Demons aren’t real, people cannot be demonically possessed, and efforts to exorcise alleged demons are groundless and damaging. We could make a similar point about “therapy” aimed at deconverting “witches.”
I’m making an obvious point: The recent Supreme Court ruling in Chiles v. Salazar, which ruled Colorado’s “conversion therapy” ban put unconstitutional restrictions on talk therapy specifically, cannot reasonably be taken to mean that ‘anything goes’ under the umbrella of licensed psychotherapy, even insofar as it includes only talking.
Lest you be tempted to say that the example of demons is silly, I’ll point out that Ross Douthat, a columnist for the New York Times, has publicly said, “I think it is quite possible for a child to become possessed by demons.” J. D. Vance, the vice president, recently affirmed he believes in demonic forces. The Catholic Church still officially sanctions “the expulsion of demons” (although only by a bishop or priest). Republican candidate for governor Victor Marx has called himself an exorcist. Republican State Rep. Scott Bottoms, another candidate for governor, has expressed belief in demonic influences. Joe Oltmann, a one-time candidate for governor who wants to take over the state Republican Party, has expressed belief in demons and said that several Jewish political leaders in Colorado constitute a “Synagogue of Satan” under demonic influence.
The point here is not that these individuals necessarily would endorse exorcist talk therapy, but that it’s plausible that some licensed therapist might think that they can help children rid themselves of demons or demonic influences.
I am not the only person to draw the comparison, nor is exorcism entirely distinct from “conversion therapy.” English law professor Paul Behrens, in his amicus brief for Chiles v. Salazar, argued that the practice is “scientifically baseless,” and noted that “exorcisms have played a role in conversion practices.” He went on to write that “Scientific opinion can change over time, but that does not mean that regulation should be abandoned or that the doors must be flung open to allow magic incantations and exorcisms by healthcare professionals.”
The National Center for LGBTQ Rights, the UK’s Government Equalities Office, and Wisconsin’s National Association of Social Workers also note that exorcism has been used in “conversion therapy.”
A Matter of Consent
The Supreme Court’s March 31 Chiles opinion, written by Neil Gorsuch, takes for granted that the sort of therapy under consideration is non-abusive and consensual:
Kaley Chiles holds a master’s degree in clinical mental health and a state counseling license in Colorado. Ms. Chiles does not begin counseling with any predetermined goals; instead, she sits down with clients, discusses their goals, and then formulates methods of counseling that will most benefit them, seeking throughout to respect her clients’ fundamental right of self-determination. On matters of sexuality and gender, Ms. Chiles’s clients, including young people, often have different goals: Some are content with their sexual orientation and gender identity and want help with social issues or family relationships, while others hope to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their bodies. With all those clients, Ms. Chiles seeks to help them reach their stated objectives. And she employs only talk therapy.
The lead opinion also states that Chiles “does not prescribe any medicines, perform any physical treatments, or engage in any coercive or aversive practices.”
On her website, Chiles also emphasizes consent: “I received my counseling training and education from a seminary in order to more effectively integrate faith into the therapeutic process. Faith informed counseling, when desired by client, weaves the principles, practices, and spiritual disciplines into the therapeutic process.”
Likewise, the Alliance Defending Freedom, which represented Chiles, also presumes consent:
Kaley is a licensed professional counselor in Colorado. She is a committed Christian who seeks to live out her faith in every aspect of her life, including her work. . . . Her clients come to her with a variety of personal goals. Some seek freedom from sexual behaviors such as pornography use. Others wish to become more comfortable with their biological sex. . . . Many of Kaley’s clients share her Christian faith. In fact, it’s often why they seek help from her, as opposed to other counselors with a secular worldview. They want counseling that is informed by and respects their common Christian convictions.
Interestingly, both Chiles and ADF seem to take for granted that Christianity rules out transgender identities. But, not only should we not take beliefs rooted in myth seriously, as I’ve pointed out, Christian theology does not clearly rule out transgender identities anyway, and many Christians support transgender people and their identities.
Nevertheless, obviously some Christians do believe, however irrationally, that their faith precludes transgender identities.
As I have pointed out, if it is possible to be correct in saying that one is homosexual or transgender, then it is also possible to be incorrect (or not irrevocably correct) in saying that. Even a secular therapist who generally supports people’s transgender identities might have grounds to discuss with a particular client whether that client really is transgender. It is therefore possible that a therapist, who, out of religious belief, outright rejects the possibility of authentic transgender identities, might come to work with a client who sincerely wants to detransition or is seriously considering it. Thus, the state has no automatic grounds to forbid such discussions in the context of licensed therapy, even if the state does have grounds to forbid therapeutic exorcisms.
But here’s the rub: Even if a child expresses the desire to change from transgender to cisgender, or from gay to straight, we cannot presume that the child thereby offers genuine consent. We all know that children sometimes say things because their parents threaten or treat them with moral condemnation, withdrawal of kind behavior, loss of privileges, and even physical violence if the child expresses the “wrong” beliefs. I personally witnessed such parental behavior in the fundamentalist church in which I was raised.
Thus, only a fool would unquestioningly presume that every child who expresses an interest in seeing a Christian counselor for purposes of converting from transgender to cisgender, or from gay to straight, actually consents to such therapy. Yet the Supreme Court’s decision presumes consent, which in a given case may not exist.
Ways Colorado Can Regulate Therapeutic Speech
The Supreme Court’s majority decision acknowledges that the state legally may restrict certain conversion practices: “Ms. Chiles does not question that Colorado’s law banning conversion therapy has some constitutionally sound applications. . . . She does not take issue with the State’s effort to prohibit what she herself calls ‘long-abandoned, aversive’ physical interventions.”
The Court does not even reject outright the possibility of professional regulations concerning speech; it says that any such regulation must pass “strict scrutiny” under First Amendment law. For example, maybe a narrow statute prohibiting the use of therapy that induces shame, humiliation, or fear based on sexual orientation or gender identity would survive – in the specific context of licensed therapy. (Nobody credible would think the state may restrict general speech that is supportive of conversion therapy or even outright hostile toward gay and transgender people.)
One legal avenue of potential intervention in cases of severely abusive speech, which in some contexts might encompass talk-only conversion therapy, is child-abuse law. Colorado explicitly defines child abuse (19-1-103) as including not only physical harm but “any case in which a child is subjected to emotional abuse,” defined as “an identifiable and substantial impairment of the child’s intellectual or psychological functioning or development or a substantial risk of impairment of the child’s intellectual or psychological functioning or development.” Of course, criminal allegations would have to meet the high standard of guilt beyond a reasonable doubt, as determined by a jury.
Likewise, the neglect statutes (19-3-102) refer to “mistreatment or abuse” and to a “child’s environment [that] is injurious to his or her welfare.” In the extreme, abusive speech could qualify. (Notice that I’m not saying that anything Chiles has said comes anywhere close to this; I’m talking about potential extreme cases of verbal abuse.)
Ultimately, I agree with the court’s decision: A state may not impose its own orthodoxy. As Gorsuch points out, mainstream psychologists used to regard homosexuality as a mental disorder, and we’d hardly want the state outlawing therapy supportive of homosexuality. Likewise, Elana Kagan (in her concurring opinion) brings up a hypothetical law that “bars therapy affirming” a “minor’s sexual orientation or gender identity.”
But the state does not have to tolerate abuse of minors in order to uphold freedom of speech. Real consent still matters.
