In Catholic Charities of Jackson, Lenawee, and Hillsdale Counties v. Whitmer, (6th Cir., Dec. 17, 2025), the U.S. 6th Circuit Court of Appeals held that Michigan's ban on licensed therapists engaging in conversion therapy with minors violates the 1st Amendment's free speech protections. The court said in part:
“As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”... The law at issue here does that: it bans counseling “that seeks to change an individual’s sexual orientation or gender identity, including, but not limited to, efforts to change behavior or gender expression[,]” among other things. M.C.L. § 330.1100a(20).
Worse, the Michigan law discriminates based on viewpoint... Specifically, the Michigan law forbids counseling that “seeks to change” a child’s “sexual orientation or gender identity” to align with the child’s religious beliefs or biological sex.... But the law expressly permits “counseling that provides assistance to an individual undergoing a gender transition”.... The law omits a similar carveout for sexual orientation. Thus, ...the Michigan law codifies “a particular viewpoint—sexual orientation is immutable, but gender is not—and prohibit[s] the therapists from advancing any other perspective.” ...
So HB 4616 finds itself in a constitutional no-man’s land, absent some exception that liberates it from First Amendment scrutiny altogether. The district court thought that exception came by way of “the broad power of States to regulate the practice of licensed professionals[.]” ...
But it takes more than a general tradition of regulation, in some domain of human activity, to validate content- and viewpoint-based restrictions on speech....
For HB 4616 to survive strict scrutiny, the defendants must show that its restrictions on speech are the least restrictive means of achieving a compelling government interest.... The defendants have not come close to making that showing; indeed they have hardly tried....
Judge Bloomekatz filed a lengthy dissenting opinion, saying in part:
The majority opinion overrides Michigan’s judgment about the efficacy and harms of conversion therapy by declaring that regulations of medical treatments are subject to “the strictest of scrutiny” whenever the regulated treatment is delivered via words.... The majority opinion reaches that result by saying that psychotherapy consists of “spoken words and nothing more,” and then affords it the same protection as speech in the public square or a conversation between friends.... I disagree.
Not all words receive the same First Amendment protection, as is evident from the law’s long tradition of subjecting speech that administers a medical treatment to lesser First Amendment scrutiny. Far from being “words and nothing more,” psychotherapy is an evidence-based medical intervention provided by trained licensed professionals, and it falls within the state’s historic power to regulate medicine. By affording the words therapists say while providing psychotherapy the highest constitutional protection possible, the majority opinion ties states’ hands as to medically-repudiated practices like conversion therapy, and its reasoning threatens to subject wide swaths of medical regulations to strict scrutiny.
AP reports on the decision.What’s more, the majority opinion reaches this result even though all agree that the Supreme Court is poised to resolve the same issue in Chiles v. Salazar....
