Liberty Counsel filed an amicus brief to the U.S. Supreme Court in United States v. Skrmetti, a case where the Biden-Harris administration is challenging two state laws in Tennessee and Kentucky that protect gender-confused children from harmful puberty blockers, hormones, and medically mutilating surgeries. Liberty Counsel states the High Court’s decision could “reverberate beyond this case” affecting how challenges to laws involving talk therapy and counseling are decided. 

Since Liberty Counsel has represented thousands of licensed counselors who diagnose and treat gender confusion with talk therapy, it therefore has a vital interest in how the High Court scrutinizes these state bans on child medical mutilation. Liberty Counsel recommends that the High Court decide this case by “making a clear distinction between talk therapy—which is pure speech protected by the First Amendment—and invasive medical interventions involving dangerous drugs and experimental surgery—which is most often appropriately categorized as conduct that the state may regulate.” 

In the brief, Liberty Counsel explains how this case raises “critical questions” as to how the courts should scrutinize cases involving medical treatments for gender-confused minors in light of these dangerous drugs, experimental surgery, and available mental health counseling. Since courts must decide which tier of scrutiny they apply to any given case (e.g., rational basis review, intermediate scrutiny, and strict scrutiny) Liberty Counsel suggests SCOTUS be “mindful” that using a lesser tier of scrutiny to review laws banning invasive medical interventions on children, which may be appropriate here, could also “mislead” lower courts to use that same framework to evaluate laws involving counseling and talk therapy that help minors with gender confusion and unwanted same-sex attractions. Ultimately, Liberty Counsel asks the High Court to make a clear distinction between talk therapy and invasive medical interventions because different levels of judicial scrutiny should apply to each.

Liberty Counsel states that dangerous medical interventions such as puberty blockers, hormones, and mutilating surgeries are forms of “conduct” that fall within a state’s traditional authority and legitimate interest to regulate for the protection of public health and safety. These procedures also harm minors in which the state has an interest in preventing. By contrast, counseling and talk therapy is “speech” that helps a person “align unwanted sexual attractions, behaviors, and identities, or gender dysphoria with religious or moral values.” And there is no harm that comes from such counseling. The brief noted other courts have found that the First Amendment protects the speech of licensed professionals and that their clients have the right to self-determination. Talk therapy in a therapeutic setting has not only been found to be “safe and effective,” but it also “lies at the heart of First Amendment protections.” Laws banning this speech require the highest and most “demanding standard” of scrutiny – strict scrutiny – to protect against any viewpoint discrimination and First Amendment infringement. Conversely, laws like the Tennessee and Kentucky mutilation bans, which only regulate unproven and controversial “conduct” and does not involve “speech” or infringe on any fundament right, may only need a lesser tier of scrutiny to adjudicate.

“This Court must preserve the essential distinction between laws that regulate conduct and those that restrict speech,” stated Liberty Counsel. “The Court should make a clear distinction when determining the appropriate level of judicial scrutiny in the context of laws that regulate invasive and experimental medical interventions involving dangerous drugs and life-altering surgeries—which is most often appropriately considered conduct—from counseling or talk therapy—which is speech.”

At least 26 states now have laws banning these experimental and often irreversible procedures on minors. The Biden-Harris administration joined the case in 2023 after several sets of parents sued the states to obtain the right to mutilate their children. They are appealing the decision by the Sixth Circuit Court of Appeals that ruled the mutilation bans in these two states are constitutional.

The federal government argues that the bans are sex-based discrimination and violate the Equal Protection Clause in the 14th Amendment. However, the Sixth Circuit decided that bans on these “experimental” interventions for both sexes “lack[ed] any of the hallmarks of sex discrimination.” The Sixth Circuit also noted the Equal Protection Clause does not prohibit a state from banning gender interventions on minors if the bans are reasonably and rationally related to a legitimate state interest, such as protecting children from the health risks of “experimental” drugs and procedures. 

The Supreme Court is expected to hear oral arguments in United States v. Skrmetti during its current 2024 term and is expected to make a decision no later than the end of June 2025. 

Liberty Counsel Founder and Chairman Mat Staver said, “There is no fundamental right to subject children to dangerous drugs and irreversible, experimental surgeries. However, talk therapy is a free speech right protected by the First Amendment, and allows a counselor to help a client who does not want to be chained to gender dysphoria or unwanted desires, behaviors, or confusion. The Sixth Circuit rightly ruled that Tennessee and Kentucky are free to protect children, but the U.S. Supreme Court now has the chance to make the distinction between conduct and speech so that the free speech rights of licensed counselors are protected.” 

For more information about state laws protecting against gender ideology, visit Liberty Counsel’s website here.