Missouri and Christian Counselors Sue Localities Over Conversion Therapy Bans

Suit was filed last week in a Missouri federal district court against Kansas City and Jackson County, Missouri by the state of Missouri and Christian licensed counselors challenging ordinances passed by those jurisdictions which broadly ban licensed counselors from engaging in counseling directed at changing a minor's sexual orientation or gender identity. The complaint (full text) in Wyatt Bury, LLC v. City of Kansas City, Missouri, (WD MO, filed 2/7/2025), alleges in part:

Kansas City and Jackson County recently passed ordinances that ban purely consensual conversations—pure speech—about gender identity and sexual orientation. These ordinances not only require counselors to parrot these governments’ preferred views on sexual ethics; they also ban different views. That violates the First Amendment. 

340. The Counseling Ordinances facially and as-applied restrict speech based on content and viewpoint by prohibiting the Counselors and other licensed professionals who are Missouri citizens from proclaiming only certain content and viewpoints; by applying to speech based solely on its content; by authorizing counseling that supports only one viewpoint of gender identity and sexual orientation....  

353. The Public Accommodation Ordinance forces the Counselors to speak messages they object to by requiring them to offer and provide same-sex marital and relationship counseling because the Counselors offer and provide counseling about marriages and relationships between one man and one woman.... and to refer to clients and prospective clients by using those persons’ self-selected pronouns....

376. The City’s Public Accommodation Ordinance substantially burdens the Counselors’ sincerely held religious beliefs by requiring them either to operate their counseling practices in ways that violate their religious beliefs or to close their practices....

Plaintiffs also challenge the ordinances on vagueness grounds. 

ADF issued a press release announcing the filing of the lawsuits.

Michigan's Ban on Conversion Therapy for Minors Is Upheld

In Catholic Charities of Jackson, Lenawee and Hillsdale Counties v. Whitmer, (WD MI, Jan. 28, 2025), a Michigan federal district court refused to issue a preliminary injunction to prevent enforcement against counselors employed by Catholic Charities of Michigan's ban on conversion therapy for minors. The court concluded that plaintiffs were not likely to prove that the ban violates their free speech or free exercise rights, or that is void for vagueness.  The court said in part:

Here, Plaintiffs allege that they believe that “when a client comes to them and seeks to change her gender identity or gender expression to align with her biological sex, or seeks to change her behavior to refrain from acting on same-sex attraction, it is their ethical and religious duty to help that client live the life she desires to live” ...

The law is not subject to any form of heightened scrutiny under the First Amendment because the conduct regulated by the law is not merely “tied to a [medical] procedure,” ..., but consists solely of the administration of the procedure or treatment itself.... 

... In passing the new law, Michigan legislators found that treating children with conversion therapy fell below prevailing standards of care, and Michigan legislators targeted the specific and devastating harms to children that result from conversion therapy, including dramatically increased risks of depression and suicide....

Plaintiffs are not likely to establish the Free Speech violations alleged in Counts I through III....

Assuming, for the sake of argument, that Plaintiffs have plausibly demonstrated that Michigan’s law burdens the free exercise of religion, a law that burdens religious exercise is presumptively unconstitutional unless it is both neutral and generally applicable....

Michigan’s new law readily passes this test of facial neutrality.... There is no reference to religion nor any use of words with religious connotations. Michigan’s law prohibits all conversion therapy on minors, regardless of whether the minor’s (or the minor’s parent’s) motivation for seeking such therapy is religious or secular, or some variation....

Here, Plaintiffs contend that Michigan’s law was enacted with “official expressions of hostility to this well-known religious practice” ....  However, ... the comments Plaintiffs highlight do not necessarily demonstrate hostility to religion, only criticisms of conversion therapy.

News from the States reports on the decision.

Certiorari Filed with Supreme Court in Challenge to Colorado Conversion Therapy Ban

 A petition for certiorari (full text) was filed with the U.S. Supreme Court last Friday in Chiles v. Salazar, (Sup. Ct., cert. filed 11/8/2024). In the case, the U.S. 10th Circuit Court of Appeals in a 2-1 decision held that Colorado's Minor Conversion Therapy Law that bans mental health professionals from providing conversion therapy to minors does not violate the free speech or free exercise rights of mental health professionals. (See prior posting.) ADF issued a press release announcing the filling of the petition for review.

Kentucky Governor Issues Executive Order Limiting Conversion Therapy for Minors

 After attempts to get the Kentucky state legislature to ban conversion therapy for minors failed, on Wednesday Kentucky Governor Andy Beshear issued Executive Order 2024-632 (full text) which uses executive powers available to him to limit the practice. The Executive Order provides in part:

The Cabinet for Health and Family Services shall take all actions necessary to prohibit the direct or indirect use of state and federal funds for the practice of conversion therapy on minors, referring a minor for conversion therapy, or extending health benefits coverage for conversion therapy with a minor....

Any state agency that discovers or receives a report that a provider certified or licensed to practice in Kentucky engages in conversion therapy efforts with a person under 18 years of age or performs counseling on conversion therapy as part of his training for any profession licensed under a professional certification or licensing board within the Commonwealth of Kentucky shall report that provider to the appropriate professional certification or licensing board within the Commonwealth for potential disciplinary action....

The Governor's office issued a press release announcing the signing of the Executive Order. AP reports on the Executive Order. [Thanks to Scott Mange for the lead.]

10th Circuit Upholds Colorado's Ban on Conversion Therapy

In Chiles v. Salazar, (10th Cir., Sept. 12, 2024), the U.S. 10th Circuit Court of Appeals in a 2-1 decision held that Colorado's Minor Conversion Therapy Law that bans mental health professionals from providing conversion therapy to minors does not violate the free speech or free exercise rights of mental health professionals. Rejecting petitioner's free speech argument, the majority said in part:

The statute is part of Colorado’s regulation of the healthcare profession and, as the district court correctly found, applies to mental health professionals providing a type of prohibited treatment to minor patients. On the record before us, we agree the MCTL regulates professional conduct that “incidentally involves speech.”....

Ms. Chiles may, in full compliance with the MCTL, share with her minor clients her own views on conversion therapy, sexual orientation, and gender identity. She may exercise her First Amendment right to criticize Colorado for restricting her ability to administer conversion therapy. She may refer her minor clients to service providers outside of the regulatory ambit who can legally engage in efforts to change a client’s sexual orientation or gender identity.....

Rejecting petitioner's free exercise claim, the majority said in part: 

Because, on the record before us, we find Ms. Chiles has failed to show the MCTL lacks neutrality and general applicability, the district court did not abuse its discretion in finding the MCTL is subject to rational basis review..... And ... the MCTL survives rational basis review...

Judge Hartz dissenting said in part:

The issue in this case is whether to recognize an exception to freedom of speech when the leaders of national professional organizations declare certain speech to be dangerous and demand deference to their views by all members of their professions, regardless of the relevance or strength of their purported supporting evidence. As I understand controlling Supreme Court precedent, the answer is clearly no.... 

In particular, a restriction on speech is not incidental to regulation of conduct when the restriction is imposed because of the expressive content of what is said. And that is the type of restriction imposed on Chiles....

The consensus view of organizations of mental-health professionals in this country is that only gender-affirming care (including the administration of drugs) should be provided to minors, and that attempts to change a minor’s intent to change gender identity are dangerous—significantly increasing suicidal tendencies and causing other psychological injuries. The organizations insist that this view reflects the results of peer-reviewed studies.

But outside this country there is substantial doubt about those studies. In the past few years there has been significant movement in Europe away from American orthodoxy.....

Advocate reports on the decision.

[Corrected: The majority opinion was written by Judge Rossman. Judge Hartz dissented. The prior version of this post incorrectly identified the Judge Rossman as the dissenter instead of being the author of the majority opinion.]

Catholic Counselors Challenge Michigan's Transgender Conversion Therapy Ban

Suit was filed last week in a Michigan federal district court challenging the constitutionality of Michigan statutes that ban counselors from engaging in conversion therapy with minors, particularly as applied to counseling minors regarding their gender identity. The complaint (full text) in Catholic Charities of Jackson, Lenawee and Hillsdale Counties v. Whitmer, (WD MI, filed 7/12/2024), alleges that the ban violates counselors' and patients' free speech rights, parents' right to control the upbringing of their children, free exercise rights of plaintiffs and parents, as well as alleging that the statute is void for vagueness.  The complaint reads in part:

115. Plaintiffs intend to continue helping young people live consistently with their own religious beliefs on matters of gender identity and sexuality—including young people who desire to align their gender identity with their biological sex, or who desire to refrain from acting on sexual attractions outside the context of male–female marriage.  

116. HB 4616 prohibits Plaintiffs from using their professional training to help young people who have these goals....

125. Because Plaintiffs are chilled or prohibited from discussing issues of human sexuality and gender identity, their clients are denied access to ideas they wish to hear and to counseling that would help them live consistently with their own personal, religious, and life goals. 

126. Parents of these children are likewise deprived of their right to direct the religious upbringing of their children by obtaining counseling that respects their religious identity. 

127. This acutely impacts religious minorities. Such religious minorities are underrepresented among counselors generally, and it is especially difficult to find counselors willing to counsel minors who are struggling to reconcile their faith with their gender identity and sexuality....

Becket Fund issued a press release announcing the lawsuit. 

Australian State Enacts Elaborate Conversion Therapy Ban

In the Australian state of New South Wales, with assent by the Governor on April 3, the Conversion Practices Ban Bill 2024 became law, effective in April 2025. The new law bans treatments or efforts to change or suppress a person's sexual orientation or gender identity where the treatment or efforts cause substantial mental or physical harm or endanger an individual's life. Violations may be punished with up to 5 years in prison. The law however includes a number of specific examples of both gender-affirming treatment and religious expression that are not prohibited. It provides in part:

A conversion practice does not include— (a) a health service or treatment provided by a registered health practitioner that— (i)  the registered health practitioner has assessed as clinically appropriate ... and (ii) complies with all relevant legal, professional and ethical requirements,

Examples ... [are]  • genuinely assisting an individual who is exploring the individual’s sexual orientation or gender identity or considering or undergoing a gender transition • genuinely assisting an individual who is receiving care and treatment related to the individual’s gender identity • genuinely advising an individual about the potential impacts of gender affirming medical treatment.

(b) genuinely facilitating an individual’s coping skills, development or identity exploration to meet the individual’s needs, including by providing acceptance, support or understanding to the individual, or

(c) the following expressions if the expression is not part of a practice, treatment or sustained effort, directed to changing or suppressing an individual’s sexual orientation or gender identity— (i) an expression, including in prayer, of a belief or principle, including a religious belief or principle, (ii) an expression that a belief or principle ought to be followed or applied.

(4) To avoid doubt, the following are examples of what does not constitute a conversion practice under this section— (a) stating what relevant religious teachings are or what a religion says about a specific topic, (b)  general requirements in relation to religious orders or membership or leadership of a religious community, (c) general rules in educational institutions, (d)  parents discussing matters relating to sexual orientation, gender identity, sexual activity or religion with their children.

The law also sets out an elaborate civil complaint structure. Unlike most statutes passed by U.S. jurisdictions, the Australian law appears to apply to adults as well as to minors. Law & Religion Australia reports on the new law.

Certiorari Denied in Challenge to Conversion Therapy Ban

Today by a vote of 6-3, the U.S. Supreme Court denied review in Tingley v. Ferguson, (Docket No. 22-942, certiorari denied 12/11/2023). In the case the U.S. 9th Circuit Court of Appeals rejected free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. (See prior posting.) Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:

Under SB 5722, licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities. Expressing any other message is forbidden—even if the counselor’s clients ask for help to accept their biological sex. That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.

The Ninth Circuit attempted to sidestep this framework by concluding that counseling is unprotected by the First Amendment because States have traditionally regulated the practice of medicine....

This case is not the first instance of the Ninth Circuit restricting medical professionals’ First Amendment rights, and without the Court’s review, I doubt it will be the last.

Justice Alito filed a brief opinion dissenting from the denial of review. Justice Kavanaugh also indicated that he would grant the petition for certiorari.

Michigan Legislature Bans Conversion Therapy-- 22nd State To Do So

The Michigan legislature yesterday gave final passage to HB 4616 (full text) and HB 4617 (full text), bills which together prohibit mental health professionals from engaging in conversion therapy with a minor. HB4617 contains an elaborate definition of "conversion therapy" which explicitly excludes, among other things, "counseling that provides acceptance, support, or understanding of an individual or facilitates an individual's coping, social support, or identity exploration and development ...  as long as the counseling does not seek to change an individual's sexual orientation or gender identity."  When signed by the Governor, Michigan will become the 22nd state (plus the District of Columbia) to ban conversion therapy for those under 18. M Live reports on the new legislation.

Supreme Court Review Sought in Challenge to Conversion Therapy Ban

On March 27, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tingley v. Ferguson. In the case, the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel's decision rejecting free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. Conversion therapy encourages change in sexual orientation or gender identity. (See prior posting). SCOTUSblog  reports on the petition for review.

9th Circuit Denies En Banc Review of Conversion Therapy Ban

In Tingley v. Ferguson, (9th Cir., Jan. 23, 2023), the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel's decision rejecting free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. Judge O’Scannlain, joined by Judges Ikuta, R. Nelson and VanDyke, filed an opinion dissenting from the denial of en banc review, saying in pat:

Our decision in Pickup [v. Brown] is, I suggest, no longer viable. While Pickup may have seen no distinction between “treatments … implemented through speech” and those implemented “through scalpel,” ... the First Amendment recognizes the obvious difference, and protects therapeutic speech in a way it does not protect physical medical procedures....

[T]he panel majority here entirely ignored the First Amendment’s special solicitude for religious speech. Instead, it commended Washington for concluding “that health care providers should not be able to treat a child by such means as telling him that he is ‘the abomination we had heard about in Sunday school’.”...

Judge Bumatay also filed an opinion dissenting from the denial of review, saying in part:

[W]e also cannot ignore that conversion therapy is often grounded in religious faith. According to plaintiff Brian Tingley, a therapist licensed by the State of Washington, his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings....

Because the speech underpinning conversion therapy is overwhelmingly—if not exclusively—religious, we should have granted Tingley’s petition for en banc review to evaluate his Free Speech claim under a more exacting standard. It may well be the case that, even under heightened review, Washington’s interest in protecting minors would overcome Tingley’s Free Speech challenge. But our court plainly errs by subjecting the Washington law to mere rational-basis scrutiny. 

Court Upholds Conversion Therapy Ban

In Chiles v. Salazar, (D CO, Dec. 19, 2022), a Colorado federal district court rejected constitutional challenges to Colorado's ban on mental health professionals engaging in conversion therapy for minors who identify as gay, lesbian, bisexual, transgender, or gender non-conforming. In a suit brought by a licensed counselor, the court found no violation of plaintiff's free speech rights because the Minor Therapy Conversion Law regulates professional conduct rather than speech. Any speech that is affected is incidental to the professional conduct. The court also found no violation of plaintiff's free exercise rights, saying in part:

According to Ms. Chiles, the Minor Therapy Conversion Law is not neutral because it was “well-known” at the time the Colorado General Assembly enacted the Minor Therapy Conversion Law that conversion therapy was primarily sought for religious reasons.... Therefore, Ms. Chiles’ argument goes, the Minor Therapy Conversion Law impermissibly burdens practitioners who hold particular religious beliefs.... The Court disagrees. The Minor Therapy Conversion Law does not “restrict [therapeutic] practices because of their religious nature.”... [T]he Minor Therapy Conversion Law targets specific “modes of therapy” due to their harmful nature— regardless of the practitioner’s personal religious beliefs or affiliations.... [T]he Minor Therapy Conversion law targets these therapeutic modalities because conversion therapy is ineffective and has the potential to “increase [minors’] isolation, self-hatred, internalized stigma, depression, anxiety, and suicidality”....

Christian Counselor Challenges City's Conversion Therapy Ban

Suit was filed yesterday in a Wisconsin federal district court challenging the city of La Crosse's ordinance that prohibits medical and mental health professionals from engaging in conversion therapy with anyone under 18 years of age. The complaint (full text) in Buchman v. City of La Crosse, (WD WI, filed 10/13/2022), alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression or behaviors violates free speech and free exercise rights of plaintiff, a licensed counselor who approaches counseling through "a Christ-centered lens". It also alleges that the ban is unconstitutionally vague and violates the Wisconsin Constitution's protection of the right of conscience. The complaint says in part:

The Ordinance thus interferes with Ms. Buchman’s ability to decide matters of faith and doctrine for herself and to then infuse her work with these religious beliefs. It attempts to dictate and influence Ms. Buchman’s resolution of those matters. It forces her to choose between her faith and government penalty.

Wisconsin Spotlight reports on the lawsuit.

9th Circuit Upholds Washington's Ban On Conversion Therapy

In Tingley v. Ferguson, (9th Cir., Sept. 6, 2022), the U.S. 9th Circuit Court of Appeals rejected free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors.  The court said in part:

Washington’s licensing scheme for health care providers, which disciplines them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel....

SB 5722 is a neutral law targeted at preventing the harms associated with conversion therapy, and not at the religious exercise of those who wish to practice this type of therapy on minors.

 Judge Bennett concurred in part.  Courthouse News Service reported on the decision.

11th Circuit Denies En Banc Review In Conversion Therapy Case

In Otto v. City of Boca Raton, Florida, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals, by a vote of 7-4,, denied an en banc rehearing in a case in which a panel decision of the court struck down a conversion therapy ban.  (See prior posting). Concurring and dissenting opinions spanning 110 pages accompanied the brief order denying review. Judge Grant, joined by Judges Branch and Lagoa filed an opinion concurring in the denial, saying in part:

The perspective enforced by these local policies is extremely popular in many communities. And the speech barred by these ordinances is rejected by many as wrong, and even dangerous. But the First Amendment applies even to—especially to—speech that is widely unpopular....

Today’s dissenters decry the result of the panel decision—namely, that speech they consider harmful is (or may be) constitutionally protected. But to reach their preferred outcomes, they ask us to ignore settled First Amendment law

Judge Jordan joined by Judge Wilson, and joined in part by Judges Rosenbaum and Pryor, said in part:

[T]he panel majority in this preliminary injunction appeal ignored the clear error standard of review—never acknowledging or applying it —and substituted its own factual findings for those of the district court on important issues.

Judge Rosenbaum joined by Judge Pryor filed a dissenting opinion, saying in part

By incorrectly labeling talk therapy mental-healthcare treatments as mere “conversation” and “not medical at all,” the panel opinion necessarily subjects to First Amendment strict scrutiny all government regulations that require licensed mental-healthcare professionals to comply with the governing substantive standard of care in administering talk therapy. And that scrutiny rings the death knell for any such regulation.

President Issues Executive Order On Equality For LGBTQI+ Individuals

President Biden yesterday issued an Executive Order on Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals. (Full text). The Order sets out a long list of initiatives to be undertaken by various Cabinet departments and federal agencies. These include using federal authority to counter state laws which limit access to medically necessary care, reducing the risk of exposure to conversion therapy, and strengthening non-discrimination protections.  The Order also focuses on support for LGBTQI+ individuals in schools, housing programs, family counseling and health care.

Washington Conversion Therapy Ban Upheld

In Tingley v. Ferguson, (WD WA, Aug. 30, 2021), a Washington federal district court dismissed First Amendment challenges by a family therapist to a Washington state statute that prohibits licensed counselors in treating minors from engaging in "conversion therapy" aimed at changing sexual orientation or gender identity. The court held that performing conversion therapy is "conduct", not speech. According to the court, the law still allows therapists to discuss the option of conversion therapy by someone else-- including someone within the exception for practitioners operating under the auspices of religious organizations. The court also rejected plaintiff's religious free exercise argument, saying in part:

[T]he object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.... Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.

Minnesota Governor Orders Agencies To Combat Conversion Therapy

On July 15, Minnesota Governor Tim Walz issued Executive Order 21-25 (full text) providing:

All state agencies must pursue opportunities and coordinate with each other to protect Minnesotans, particularly minors and vulnerable adults, from conversion therapy to the fullest extent of their authority.

The Executive Order then details administrative actions that are to be taken by various state departments and agencies to prevent mental health professionals from working to change individuals' sexual orientation or gender identity.  AP reports on the governor's action. [Thanks to Scott Mange for the lead.]

4th Circuit: Governor and Attorney General Were Wrong Defendants In Challenge To Maryland Conversion Therapy Ban

In Doyle v. Hogan, (4th Cir., June 15, 2021), plaintiffs raised free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. The district court had held that the ban did not violate free speech or free exercise protections. (See prior posting.) The U.S. 4th Circuit Court of Appeals held that it could not reach the "interesting First Amendment issues" that are raised because defendants-- the Governor and Attorney General of Maryland-- have 11th Amendment immunity from suit. Neither defendant has the necessary connection to enforcing the statute required to invoke the immunity exception set out in Ex parte Young. So the court vacated the district court's 1st Amendment rulings and remanded the case for the district court to decide whether it will permit plaintiffs to file an amended complaint. In a press release, Liberty Counsel announced that it will seek to file an amended complaint  to list the State Board of Professional Counselors and Therapists as a defendant.

South Carolina City Bans Conversion Therapy for Minors

According to The State, yesterday the Columbia, South Carolina City Council, by a vote of 4-3, passed a ban on licensed professional therapists offering conversion therapy for minors. Violations will result in a $500 civil fine. The paper reports:

A number of people spoke on the conversion therapy ban during Tuesday’s [City Council] meeting. Eleven of the 14 speakers were against the measure, with several saying they believed it infringed on religious liberties and First Amendment rights. Several of the speakers against the ordinance were connected to Columbia International University, a Christian college in North Columbia.

[Councilman Howard] Duvall said the ordinance would not interfere with conversations between a pastor and a resident.....  "It is clearly aimed at licensed practitioners. Most of the pastors in South Carolina are not licensed practitioners licensed by the state of South Carolina."

By a vote of 6-1, Council also passed a resolution supporting statewide legislation outlawing conversion therapy for minors.