Is Science God? Shall we take the pronouncements of people who call themselves ‘scientists’ and have various pieces of paper as relevant and, indeed, dispositive?
Not so fast, argues ‘Liberty Counsel’ in their brief about the Colorado ‘conversion therapy’ law.
(Sorry about the formatting, but posting from the SC website can get messy, and I didn’t think it worthwhile to delay this for days to clean it up. You can find the case here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/24-539.html)
BRIEF OF AMICUS CURIAE
LIBERTY COUNSEL
SUPPORTING PETITIONER
ARGUMENT
I. “Scientific Consensus” Is Often
Ideological, Not Empirical.
As Judge Hartz recognized in his dissent, this
“[t]his case presents two distinct, but intertwined,
fundamental and important questions.” Chiles v.
Salazar, 116 F.4th 1178, 1226 (10th Cir. 2024)
(Hartz, J., dissenting). The first question—whether
“speech by licensed professionals in the course of
their professional practices is not speech, but conduct”—is squarely presented in the petition.
Id. Amicus suggests the “second question”—
“whether a court should treat as ‘science’ the pronouncements of prestigious persons or organizations
that are not supported by sound evidence”—also
warrants this Court’s consideration. Id.
Whether courts should uncritically defer to the assertions of professional organizations and so-called
experts arises within a broader phenomenon that
might be called the “cult of the experts,” where credentialed elites operating as a “consensus” wield disproportionate influence over public discourse, government policy, and judicial decisions. As this case
demonstrates, the elevation of experts to near-absolute authority can lead to judicial endorsement of
contested, methodologically flawed, and
5
ideologically driven conclusions presented under the
guise of scientific consensus.
A. “Cultural hegemony” and the rise of the
expert class.
The rise of expert authority traces its roots to two
pivotal historical developments: the Enlightenment’s embrace of rationalism and the Industrial
Revolution’s demand for specialized knowledge. The
Enlightenment brought a profound shift in thought,
namely that empirical reasoning and scientific inquiry could unearth universal truths. See generally
Enlightenment, Brittanica (Oct. 28, 2024).4 The Industrial Revolution then put these ideas into practice, during which a new class of specialized
knowledge was required to navigate emerging technologies. See generally Industrial Revolution, Brittanica (Oct. 5, 2024).5
By the 20th century, the elevation of expertise had
fully infiltrated governance. Progressive-era reformers championed technocratic approaches to public
policy, arguing that scientists, economists, and other
specialists were better equipped than elected officials to address society’s ills. See Thomas Leonard,
American Progressives and the Rise of Expertocracy,
History of Economics Society Meetings, Grinnell
College (June 2006).6 This shift reflected not only a
confidence in technical know-how but also a growing
4 Available at https://www.britannica.com/event/Enlightenment-European-history.
5 Available at https://www.britannica.com/event/IndustrialRevolution.
6 Available at https://www.princeton.edu/~tleonard/papers/expertocracy.pdf.
6
unease with the democratic process. As one commentator observed, “[t]he experts declare non-experts incapable of deliberation, excluding ordinary human
beings from debate on the grounds of their alleged
incompetence.” Nathan Pinkoski, Coronavirus and
the Cult of the Expertise, First Things (Mar. 30,
2020).7 Consequently, key decisions moved away
from the people and their representatives and into
the hands of unelected “experts.”
The ideological framework supporting the modern
“cult of the experts” finds significant influence in
Marxist thought, particularly Antonio Gramsci’s
theory of “cultural hegemony.” Unlike many of his
contemporaries during the 1930s Stalinist era,
Gramsci took a distinct approach to implementing
socialism. He suggested that the path to power
hinged less on seizing control of the economy and
more on dominating the instruments of “cultural hegemony”—universities, the media, the arts, and the
sciences.8 Observing that the Bolsheviks’ violent
revolution in 1918 was an anomaly, Gramsci argued
for a slower, more strategic “war of position.” See
generally Antonio Gramsci, The Antonio Gramsci
Reader: Selected Writings 1916–1935 (David Forgacs
ed., 2000). In his view, winning control over cultural
7 Available at https://www.firstthings.com/web-exclusives/2020/03/coronavirus-and-the-cult-of-expertise.
8 Defined simply, “cultural hegemony” refers to “domination or rule maintained through ideological or cultural means,”
and “[i]t is usually achieved through social institutions, which
allow those in power to strongly influence the values, norms,
ideas, expectations, worldviews, and behaviors of the rest of society.” Nicki Lisa Cole, What is Cultural Hegemony?,
ThoughtCo (Aug. 13, 2024), thoughtco.com/cultural-hegemony3026121.
7
institutions was the most reliable route to embedding socialist ideology within society. See generally
Samuel Gregg, Marxism’s Last (and First) Stronghold, Acton Commentary (Sep. 9, 2019).9
Gramsci’s concept of cultural hegemony is “deeply
rooted in today’s theory of intersectionality.” Roger
Kiska, Antonio Gramsci’s Long March Through History, 29 Religion & Liberty 3 (Dec. 12, 2019).10 “It
seeks to dismantle the existing cultural hegemony
by ideological subversion and opposition, challenging the legitimacy of existing super-structural institutions like family, religion, and political power.”
Ibid. As Gramsci allegedly put it, “In the new order,
Socialism will triumph by first capturing the culture
via infiltration of schools, universities, churches,
and the media by transforming the consciousness of
society.” Id. (citation omitted). In this view, experts
are not mere observers but active participants in societal transformation, capable of transforming cultural norms and reshaping the public consciousness.
The above discussion is no conspiracy theory. Just
last year, The Lancet—the world’s most prestigious
medical journal—published an editorial openly invoking Antonio Gramsci’s theory of cultural hegemony to analyze the modern “culture wars.” See Richard Horton, Offline: We Must Engage in a War of
9 Available at https://www.acton.org/pub/commentary/2009/09/09/marxism%E2%80%99s-last-and-first-stronghold.
10 Available at https://www.acton.org/religion-liberty/volume-29-number-3/antonio-gramscis-long-march-through-history.
8
Position, 401 Lancet 1483 (2023).11 The author cited
Gramsci’s concept of a “war of position” as a call to
action for those “who wish to advance a more hopeful, compassionate, and liberal vision of the future”
to fight back against “populists” on issues related to
“race, sex, and gender.” Id. The explicit invocation of
Gramsci’s framework by the world’s leading medical
journal underscores how deeply cultural hegemony
has permeated scientific discourse. It also reveals
the extent to which science, medicine, and policy are
shaped—not by objective inquiry—but by efforts to
steer the public consciousness in a particular ideological direction.
Another influence on the rise of the expert class is
the Frankfurt School, which studied the ways liberal
democracies maintain control through culture and
ideology. See Critical Theory (Frankfurt School),
Stanford Encyclopedia of Philosophy (Dec. 12, 2023).
Emerging in early 20th-century Germany, this
group of intellectuals—including Max Horkheimer,
Theodor Adorno, and Herbert Marcuse—sought to
adapt Marxist theory to the societal structures of the
modern world. See generally Martin Jay, The Dialectical Imagination: A History of the Frankfurt
School and the Institute of Social Research, 1923–
1950 (1996); Max Horkheimer, Critical Theory: Selected Essays (1982); Theodor Adorno & Max Horkheimer, Dialectic of Enlightenment (1997). “These
men revised, repurposed, and extended classical
Marxism by emphasizing culture and ideology, incorporating insights from emerging fields such as
11 Available at https://www.thelancet.com/action/showPdf?pii=S0140-6736%2823%2900900-5.
9
psychoanalysis, and researching the rise of mass media and mass culture.” Allen Mendenhall, Cultural
Marxism is Real, James G. Martin Center for Academic Renewal (Jan. 4, 2019).12 Central to their project was the belief that intellectual elites—experts in
sociology, psychology, and philosophy—were
uniquely positioned to challenge and then remake
power structures.
The Frankfurt School took Gramsci’s ideas a step
further, critiquing liberal democracies as systems in
need of expert-driven interventions to uproot entrenched “oppressions.” Their strategy? Wrap ideological objectives in the language of scientific neutrality. See generally Rolf Wiggershaus, The Frankfurt School: Its History, Theories, and Political Significance (1994). In doing so, they helped pave the
way for governance models where experts—not
elected representatives—steer policy under the
guise of serving the public good.
The “cult of the experts” has been pivotal in framing contemporary debates about gender dysphoria
and sexuality. Indeed, the intellectual framework
for the sexual revolution (in which the Frankfurt
School’s Herbert Marcuse played a significant role)
is set forth in gender theory and critical pedagogy.
See Mike Gonzales & Katharine C. Gorka, How Cultural Marxism Threatens the United States—and
How Americans Can Fight It 17–18, The Heritage
Foundation (Nov. 14, 2022).13 Gender theory, often
12 Available at https://www.jamesgmartin.center/2019/01/cultural-marxism-is-real/.
13 Available at https://www.heritage.org/sites/default/files/2022-11/SR262.pdf.
10
referred to as gender ideology, traces its intellectual
roots to Marxist-Freudian thought. See id. One of its
key progenitors is Michel Foucault, the French poststructuralist who argued that society’s understanding of gender is a social construct imposed by oppressive forces. See id. Operating within the Marxist
postmodern framework of “liberation,” Foucault contended that deconstructing traditional gender
norms would enable greater individual autonomy
and creativity in identity formation. See id. at 18
(citing Jay Schalin, The Politicization of University
Schools of Education: The Long March through the
Education Schools, The James G. Martin Center for
Academic Renewal (Feb. 19, 2019)). Rejecting the
notion of binary sex, Foucault cast doubt on the “naturalness” of gender and sex as societal constructs.
Id. His philosophy exemplifies a form of cultural
Marxism that moves beyond class struggle, recasting the “oppressed versus oppressor” dynamic in
terms of sex and gender. Id. According to this view,
liberation from societal norms and conventional understandings of gender and sex is essential to
achieving true freedom. See id.
In short, the Marxist intellectual framework has
profoundly influenced contemporary approaches to
gender dysphoria and sexuality, and it arguably has
provided the ideological foundation for viewpointbased laws like Colorado’s that prohibit therapy that
helps minors with unwanted same-sex attractions
and gender dysphoria yet permits therapy that encourages such attractions and behaviors.
11
B. Relying on “scientific consensus” to
justify the infringement of First
Amendment-protected speech reflects a
broader pattern of ideological influence
in public policy.
The historical and ideological evolution of the “cult
of the experts” directly informs the dynamics at play
in this case and other cases in which ideology undermines biological reality and common sense. Cf.
United States v. Skrmetti, 144 S. Ct. 2679 (2024)
(granting certiorari to determine constitutionality of
laws prohibiting irreversible surgeries on genderdysphoric minors). As discussed below, Colorado’s
ban on therapy for minors rests on a supposed “medical consensus,” presented as a watertight authority.
See Chiles, 116 F.4th at 1216. But as history shows,
such consensus often reflects not objective truths or
science but the cultural and ideological preferences
of a select group. From Gramsci’s cultural hegemony
to the Frankfurt School’s emphasis on expert-driven
social change, the elevation of expert authority has
long been intertwined with ideological efforts to reshape Western values—and marginalize dissenting
viewpoints.
To be sure, Amicus is not arguing that scientific
and medical experts have no role in society.
“[E]xperts can make modest contributions to public
debate, helping citizens and their leaders make prudential judgments.” Pinkoski, supra note 7; but see
F.A. Hayek, The Intellectuals and Socialism, in The
Intellectuals: A Controversial Portrait 371 (George
B. de Huszar ed., 1960) (reprinted from 16 U. Chi. L.
Rev. 417, 421–23, 425–33 (1949)) (observing that
“the scientist who takes charge of an institute or
12
foundation * * * or the active promoter of an organization serving a particular cause, all rapidly cease to
be scholars or experts * * * solely in the light of certain fashionable general ideas”). But courts should
be skeptical of “the idea of a supreme and authoritative caste of experts whose judgments are unassailable.” Pinkoski, supra note 7. That is because “[t]he
decision to embark on the scientific enterprise is underpinned by something preceding the scientific
method: the reasonable conviction that there is
truth, we can know it, and, above all, that it is good
to know the difference between truth and error.”
Samuel Gregg, The Specter of Scientism, Acton Commentary (Sep. 19, 2019).14 When courts rely on “expert consensus” without scrutinizing its underpinnings, they risk enshrining ideology, not truth, into
law. And as discussed below, this concern is not hypothetical; it is evident in the record before this
Court.
II. The Tenth Circuit’s Reliance on an
Ideologically Driven “Medical Consensus”
Poses a Grave Risk for First Amendmentprotected Speech and Public Health.
The Tenth Circuit agreed with the district court’s
finding that “conversion therapy is ineffective and
harms minors who identify as gay, lesbian, bisexual,
transgender, or gender non-conforming,” that “the
record ‘amply shows that the [MCTL] comports with
the prevailing medical consensus regarding conversion therapy and sexual orientation change efforts,’”
and that “Colorado considered the body of medical
14 Available at https://www.acton.org/pub/commentary/2019/09/18/specter-scientism.
13
evidence regarding conversion therapy and sexual
orientation change efforts—and their harms * * *
and made the decision to protect minors from ineffective and harmful therapeutic modalities.” Chiles,
116 F.4th at 1216–17 (quoting Chiles v. Salazar,
2022 WL 17770837, at *9 & n.10 (D. Colo. Dec. 19,
2022)).15
Put simply, the courts below relied on “the prevailing medical consensus” to justify not only violating
the First Amendment rights of licensed counselors
but preventing minors from voluntarily seeking
therapy for their unwanted same-sex attractions
and gender dysphoria. Indeed, the district court
went so far as to describe such therapy as “ineffective and harmful.” Chiles, 2022 WL 17770837, at *9.
How could it have come to this? How could the
same medical associations that condemn talk therapy as “ineffective and harmful” for minors with unwanted same-sex attractions or gender dysphoria
champion interventions that involve cutting, stitching, and permanently altering children’s bodies? See
Brief of American Psychological Association in Support of Petitioner at 16, 144 S. Ct. 2679 (2024) (No.
23-477) (arguing that “gender-affirming medical
care * * * is effective, evidence-based, and safe”).
How does a profession that claims to prioritize “do
no harm” declare speech—a voluntary dialogue
15 Terms such as “conversion therapy” and “sexual orientation change efforts, or “SOCE,” are scientifically inaccurate and
susceptible to exploitation. In reality, licensed counselors use
mainstream therapeutic modalities to help clients identify and
resolve issues that might be inhibiting desired heterosexual
adaptation. This brief uses “SOCE” only where context requires.
14
between a counselor and client—as inherently dangerous, while endorsing the irreversible removal of
healthy reproductive organs as a life-affirming act?
See id. And how does the term “consensus”—so confidently wielded—come to mean the suppression of
any perspective that challenges this narrative? See,
e.g., Ryan T. Anderson & Robert P. George, Physical
Interventions on the Bodies of Children to “Affirm”
their “Gender Identity” Violate Sound Medical Ethics
and Should be Prohibited, Public Discourse (Dec. 8,
2019).16
Amicus suggests an answer: The “medical consensus” is less a product of dispassionate scientific inquiry and more a reflection of cultural and ideological forces at work. As Judge Hartz astutely observed,
“[c]onsensus is irrelevant to science.” Chiles, 116
F.4th at 1237 (Hartz, J., dissenting). Indeed, as discussed below, the supposed harms of talk therapy
rest on the flimsiest of evidence—a handful of studies riddled with methodological flaws, self-reported
anecdotes, and the convenient omission of any inquiry into minors who might benefit from exploring
these feelings in alignment with their faith or biological sex. Yet these same medical associations enthusiastically back the administration of puberty
blockers and cross-sex hormones to adolescents, despite growing international skepticism and admissions that long-term effects remain unknown. See
Chiles, 116 F.4th at 1240 (Hartz, J., dissenting)
16 Available at https://www.thepublicdiscourse.com/2019/12/58839/.
15
(citing studies).17 But here in the United States we
are told it is settled: affirming same-sex attractions
and transgenderism is the only path; resolving unwanted feelings is dangerous—and forbidden. The
First Amendment demands more.
A. There is no evidence-based “consensus”
on therapy for minors with unwanted
same-sex attractions and gender
dysphoria.
As Amicus has previously argued before this
Court, mental health counseling that helps a client
align their feelings and behaviors with their religious beliefs and biological reality—unlike invasive
medical procedures involving drugs and surgeries—
is First Amendment-protected speech. See Brief of
Liberty Counsel in Support of Petitioner, United
States v. Skrmetti, 144 S. Ct. 2679 (2024) (No. 23-
477). And as Judge Hartz observed, to justify suppressing speech, “there needs to be evidence, good
evidence, to support that.” Chiles, 116 F.4th at 1237
(Hartz, J., dissenting). “A vote by a professional organization might be indicative that there is such evidence, but it is not a substitute.” Id.
Here, the evidence cited to support prohibiting
First Amendment-protected speech is ideological,
not empirical. When passing the Minor Therapy
Conversion Law, Colorado purportedly “considered
the body of medical evidence regarding conversion
17 Indeed, Finland, Sweden, and the United Kingdom are
scaling back such treatments after questioning their safety and
efficacy. See Azeen Ghorayshi, Youth Gender Medications Limited in England, Part of Big Shift in Europe, N.Y. Times (April
9, 2024), https://perma.cc/D68U-EWRK.
16
therapy and sexual orientation change efforts—and
their harms.” Chiles, 116 F.4th at 1217. Yet clinical
and scientific evidence has consistently demonstrated that exploring a client’s unwanted same-sex
attractions and behaviors through talk therapy is
safe and effective. See, e.g., Paul Santero et al., Effects of Therapy on Religious Men Who Have Unwanted Same-Sex Attraction, 85 Linacre Q. 1–17
(2018); Stanton L. Jones et al., A Longitudinal Study
of Attempted Religiously Mediated Sexual Orientation Change, 37 J. Sex & Marital Therapy 404
(2011); Elan Karten et al., Sexual Orientation
Change Efforts in Men, J. Men’s Studies 84–102
(2010). The record shows that Colorado did not consider these studies when relying on the “medical consensus,” a fact that suggests that the legislature’s
motivations were more ideological than scientific.
Consider also the pushback against such therapy.
Clients seeking counseling typically hold traditional
religious beliefs, and their primary goal in seeking
counseling is often part of their broader desire to live
consistent with their faith. See Christopher Rosik,
Motivational, Ethical and Epistemological Foundations In The Clinical Treatment Of Unwanted Homoerotic Attraction, 29 J. Marital & Fam. Therapy 13
(2003). Yet clinical counseling for persons with unwanted same-sex attraction or behavior is subject to
fierce criticism from LGBTQ activists and their institutional allies in government, medicine, and academia. These critics purposefully ignore clinical
counselors’ use of standard mental health approaches and instead categorically denunciate simple talk therapy as coercive “conversion” tactics
wielded by religious fundamentalists. These false
17
claims are reinforced by media productions depicting torturous and abusive “conversion” sessions inflicted by sadistic “counselors.” Accord, Judith A.
Reisman, Crafting Bi/Homosexual Youth, 14 Regent
U. L. Rev. 283, 284–327 (2002) (reviewing the “evidence of widespread media and academic censorship
and misrepresentation” about the so-called “gay
rights” movement, which has resulted in “a controlled and distorted public debate about homosexuality”).18
Dr. Nicolas Cummings, the former president of the
American Psychological Association, criticized political efforts to prohibit counseling as harmful to clients and counselors: “Whatever the situation at an
individual clinic, accusing professionals from across
the country who provide treatment to fully informed
persons seeking to change their sexual orientation of
perpetrating a fraud serves only to stigmatize the
professional and shame the patient.” Nicholas A.
Cummings, Sexual Reorientation Therapy Not Unethical, USA Today (July 30, 2013).19 Dr. Cummings
further criticized political and legal efforts to prohibit counseling as violating the client’s right to selfdetermination and therapeutic choice: “Attempting
to characterize all sexual reorientation therapy as
unethical violates patient choice and gives an
18 For an example of hyperbolic media coverage, see Patrick
Ryan, What Happens in Gay Conversion Therapy?, USA Today (July 31, 2018), https://www.usatoday.com/story/life/movies/2018/07/31/gay-conversion-therapy-new-films-show-scaryreality/838633002/.
19 Available at https://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientation-therapy-not-unethical-column/2601159/.
18
outside party a veto over patients’ goals for their own
treatment.” Id.
In short, Colorado’s suppression of mental health
counseling that aligns a client’s feelings and behaviors with their religious beliefs and biological reality
exposes the fragility of the so-called “medical consensus” on which Colorado’s ban is based. Suppressing speech requires “good evidence to support that,”
Chiles, 116 F.4th at 1237 (Hartz, J., dissenting), yet
the record reveals no credible consensus—only ideological assertions masquerading as science. Indeed,
Colorado conspicuously ignored studies demonstrating the safety and efficacy of talk therapy for those
seeking to address unwanted same-sex attractions
in favor of politically motivated claims that stigmatize religiously motivated counseling. This is not a
consensus grounded in empirical rigor; it is a manufactured narrative that marginalizes alternative
perspectives. In short, it is legislative legerdemain
this Court should make clear has no place under the
First Amendment.
B. The studies on which Colorado’s relies
are biased, methodologically flawed, and
contradictory.
What is more, when subjected to objective scientific analysis and basic logical scrutiny, the “the scientific research and professional consensus” justifying Colorado’s law are exposed as misleading, ideologically biased, and methodologically flawed.
Chiles, 116 F.4th at 1217 (citation omitted).
As with many government bodies that have enacted therapy bans, see, e.g., Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020); Vazzo v. City of
19
Tampa, No. 19-14387, 2023 WL 1466603 (11th Cir.
Feb. 2, 2023), Colorado relied on the “Report of the
American Psychological Association Task Force on
Appropriate Therapeutic Responses to Sexual Orientation” (hereinafter “APA Report”),20 published in
2009 by the American Psychological Association
(APA), the self-described “leading scientific and professional organization representing psychology in
the United States.”21
In 2007, the APA commissioned the “Task Force on
Appropriate Therapeutic Responses to Sexual Orientation” to conduct a systematic review of the peerreviewed journal literature on “sexual orientation
change efforts (SOCE)” and issue a follow-up report.
In August 2009, the task force released the APA Report, which it claimed was the result of “an extensive
review of the recent literature on psychotherapy and
the psychology of sexual orientation.” APA Report 1.
The task force declared that based on its findings,
“efforts to change sexual orientation are unlikely to
be successful and involve some risk of harm, contrary to the claims of SOCE practitioners and advocates.” Id., at v.
In striking contrast to its overall conclusion, the
task force repeatedly stated throughout the APA Report that, in its “extensive review,” id. at 1, it found
20 APA Task Force, Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to
Sexual Orientation, Am. Psych. Ass’n (2009),
https://www.apa.org/pi/lgbt/resources/
therapeutic-response.pdf. 21 About APA, Am. Pysch. Ass’n, https://www.apa.org/about
(last visited Dec. 4, 2024).
20
no evidence of harm caused by SOCE. According to
the APA Report:
• “[A] dearth of scientifically sound research [exists] on the safety of SOCE.” Id. at 42;
• “Early and recent research studies provide no
clear indication of the prevalence of harmful
outcomes.” Id. (emphasis added);
• “[T]here are no scientifically rigorous studies of
recent SOCE that would enable us to make a
definitive statement about whether recent
SOCE is safe or harmful and for whom.” Id. at
83; and
• “Given the limited amount of methodologically
sound research, we cannot draw a conclusion
regarding whether recent forms of SOCE are or
are not effective.” Id. at 43 (emphasis added).
In fact, the task force found benefits from SOCE
counseling. For example, the task force expressly
notes (APA Report at 3) that in some studies, individuals
• “perceived that they had benefited from SOCE”;
• “reported that SOCE was helpful—for example,
it helped them live in a manner consistent with
their faith”;
• “described finding a sense of community
through religious SOCE and valued having others with whom they could identify”; and
• reported “positive benefits” such as “reduction
of isolation, alterations in how problems are
viewed, and stress reduction,” all of which “are
consistent with the findings of the general mutual support group literature.”
21
The task force also conceded that “both early and
recent studies” offered “evidence” of SOCE counseling’s effectiveness. APA Report 3. For example, the
task force noted (id. at 3–4) research showing that
individuals
• “modified their sexual orientation identity (e.g.,
individual or group membership and affiliation,
self-labeling) and other aspects of sexuality
(e.g., values and behavior)”;
• “through participating in SOCE, became skilled
in ignoring or tolerating their same-sex attractions”; and
• “reported that they went on to lead outwardly
heterosexual lives, developing a sexual relationship with an other-sex partner, and adopting a heterosexual identity.”
Even though it found “no scientifically sound studies of recent SOCE that would enable [it] to make a
definitive statement about whether or not recent
SOCE is safe or harmful and for whom,” the task
force nevertheless gleaned “some evidence to indicate that individuals experienced harm from SOCE.”
APA Report 3. But that evidence was based on “early
studies” that “documented iatrogenic effects of aversive forms of SOCE.” APA Report 3 (emphasis
added). Clinical counselors, including those who desire to provide counseling prohibited by similar
bans, have soundly rejected and condemned aversive
techniques for decades.
The APA Report thus found no study indicating
harm caused by nonaversive therapeutic approaches
such as psychodynamic therapies, cognitive-behavioral therapy, group therapy, or spiritual counseling.
22
Indeed, the task force even concluded that “it is still
unclear which techniques or methods may or may
not be harmful.” APA Report 91.
Despite Colorado’s reliance on the APA Report in
purporting that counseling harms minors, the APA
task force specifically noted that “sexual orientation
issues in children are virtually unexamined.” APA
Report 91 (emphasis added); id. at 72 (finding “a lack
of published research on SOCE among children”).
The task force further conceded that its findings did
not include voluntary minor counseling. APA Report
at 73 (“We found no empirical research on adolescents who request SOCE.”); see also id. at 76 (noting
that its conclusions are not based on specific studies
from individuals, including minors, who request
counseling, and its findings were necessarily limited).
Indeed, even Judge Hartz noted “the absence of
any study (good or bad) that focuses on the type of
therapy at issue in this case: talk therapy for a minor provided by a licensed mental-health professional.” Chiles, 116 F.4th at 1243 (Hartz, J., dissenting). “Thus, even if there is some good research on
the efficacy and harm of conversion therapy in some
contexts, that research may be largely irrelevant to
this case.” Id. In short, the APA Report does not support Colorado’s conclusions that counseling may put
young people at risk of serious harm. Despite finding
no study signifying that SOCE is harmful, the task
force baselessly concluded that it “involve[s] some
risk of harm, contrary to the claims of SOCE practitioners and advocates.” APA Report at v.
23
Moreover, the APA’s methodology to evaluate beneficial change interventions stands in stark contrast
to the standards assessing causality between SOCE
and harm. Despite its baseless conclusions that all
change interventions “involve[s] some risk of harm,”
APA Report at v., the task force dismissed significant research noting the SOCE’s positive benefits,
asserting that those studies “do not hold up under
the rigor of experimentation,” id. at 35. The task
force went further, declaring that “the least rigorous
studies in this body of research generally provide a
more positive assessment of efficacy than do studies
that meet even the most minimal standards of scientific rigor.” Id. In the task force’s view, studies supporting SOCE beneficial outcomes fell short of its exacting standards. The task force accordingly deemed
those studies unworthy of examination and dismissed them for lack of scientific evidence and precision of outcome.
On the other hand, the task force applied a lenient
standard when examining causal relations between
SOCE and harmful outcomes. For example, the task
force concludes that the absence of measurable outcomes related to positive SOCE indicates that SOCE
is unlikely to produce change and is thus harmful.
See APA Report at 6. But the task force shows no
similar reticence to endorse same-sex “affirmative
interventions” despite acknowledging that such
treatment “has not been evaluated for safety and efficacy.” Id. at 91.
This double standard reveals a glaring inconsistency in the APA’s methodology, which undermines the credibility of its conclusions. By imposing
exacting standards to dismiss studies showing
24
positive outcomes for SOCE while applying lenient
criteria to infer harm, the APA task force betrays an
ideologically driven agenda rather than a commitment to objective scientific inquiry. It is telling that
the task force dismissed research supporting
SOCE’s efficacy as insufficiently rigorous yet endorsed affirmative therapies despite clearly admitting that such interventions lack rigorous evaluation
for safety or effectiveness. Such selective scrutiny
cannot serve as the foundation for state laws that
infringe upon fundamental First Amendment rights.
III. The Decision Below Highlights the
Dangers of Deferring to Questionable
“Scientific Consensus” to Justify
Suppressing Protected Speech.
The decision below warrants this Court’s intervention to clarify the proper role of “experts” in enacting
content-based speech restrictions. Judge Hartz’s dissent vividly illustrates the dangers of deferring to socalled “expert consensus” without rigorous scrutiny.
As he warned, courts must “exercise the utmost caution before endorsing government suppression of
speech.” Chiles, 116 F.4th at 1238 (Hartz, J., dissenting). Echoing this Court’s guidance, Judge
Hartz highlighted the risk that government regulation of professional speech, particularly when premised on disputed or ideologically driven expert opinions, undermines “an uninhibited marketplace of
ideas in which truth will ultimately prevail.” Id.
(quoting NIFLA, supra, 585 U.S. at 772).
In NIFLA, this Court recognized that professional
fields are inherently marked by “good-faith disagreements,” 585 U.S. at 772, and thus “[c]ourts must be
25
particularly wary that in a contentious and evolving
field, the government and its supporters would like
to bypass the marketplace of ideas and declare victory for their preferred ideas by fiat,” Chiles, 116
F.4th at 1238 (Hartz, J., dissenting). Judge Hartz
aptly compared such government overreach to a “Lysenko moment,” referring to the infamous Soviet scientist whose ideological control over agricultural science suppressed dissenting views and led to disastrous consequences. 116 F.4th at 1238 (Hartz, J.,
dissenting); see generally Michael D. Gordin, Lysenkoism, Encyclopedia of the History of Science (Feb.
2022).22 The lesson of that cautionary tale: courts
should scrutinize expert-driven restrictions of constitutionally protected speech, particularly when the
alleged “consensus” is shaped by cultural or ideological pressures rather than empirical evidence.
The present case highlights this concern. Colorado’s ban on talk therapy for minors relies heavily
on a purported “medical consensus” that such therapy is harmful and ineffective. Chiles, 116 F.4th at
1216–17. But the fact that a conclusion is published
in a peer-reviewed journal or is endorsed by a professional association does not inherently establish
the reliability or validity of the underlying evidence.
See id. at 1238–39 (Hartz, J., dissenting). As Judge
Hartz observed, studies in social and behavioral sciences frequently suffer from methodological flaws
and reproducibility issues, with replication rates often ranging between 35% and 75%. See id. at 1239.
Moreover, there is evidence of widespread
22 Available at https://ethos.lps.library.cmu.edu/article/560/galley/463/view/.
26
“questionable research practices,” including data
fabrication and selective reporting, which further
undermine claims of consensus. Id.
At bottom, this case raises profound concerns
about the judiciary’s knee-jerk acceptance of the evidentiary basis for laws that infringe on First
Amendment rights. Courts that defer uncritically to
the “scientific consensus” or to the “medical community” risk enshrining ideological preferences as unassailable truths. As Judge Hartz emphasized, a
“vote by a professional organization” may signal consensus, but it is no substitute for “good evidence”
tested through the adversarial process. Chiles, 116
F.4th at 1237 (Hartz, J., dissenting). Here, Colorado’s reliance on the APA task force’s report to justify suppressing therapeutic speech warrants the
need to reaffirm the principles articulated in this
Court’s precedents: that strict scrutiny requires
courts to rigorously evaluate, rather than reflexively
accept, the evidence underlying laws that restrict
speech. Cf. Brown v. Ent. Merchants Ass’n, 564 U.S.
786, 800 (2011) (rejecting the State’s proffered studies purporting to show a connection between exposure to violent video games and harmful effects on
children as “not compelling”).
CONCLUSION
The Court should grant the petition.
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