This week’s U.S. Supreme Court ruling against a Colorado law that prohibits conversion therapy has major implications for the roughly half of U.S. states with similar bans on the books — including Vermont.
But advocates for LGBTQ people and the state’s top law enforcement official argue Vermont may still be able to regulate the practice, which generally refers to treatments that attempt to “cure” individuals of same-sex attraction or gender dysphoria.
Basically every major medical and mental health organization has repudiated such therapies, arguing that they are ineffective and likely to increase an individual’s risk of depression and suicidality.
“We have to start with the facts and with the truth, which is that conversion therapy creates harm to anybody — and specifically to young people. And there's overwhelming evidence of that,” said Dana Kaplan, the executive director of Outright Vermont. The Burlington-based organization provides support services for LGBTQ youth.
Former Democratic Gov. Peter Shumlin signed a law prohibiting licensed mental health professionals from practicing conversion therapy on minors in 2016. And last year, Vermont Attorney General Charity Clark joined a multi-state amicus brief in support of Colorado’s ban.
Clark told Vermont Public Wednesday she’s still reviewing the court’s decision. But she said she planned to talk to state lawmakers soon about whether and how to adjust Vermont’s law to buttress it against likely legal challenges.
“Our law is actually pretty good. Any recommended changes that we have — I think it's probably going to be more of a tweak than an overhaul,” she said.
Clark added that any changes she recommended could be adopted quickly, since state lawmakers are currently in session. The Legislature typically adjourns for the year in May or June.
In its decision, the U.S. Supreme Court ruled 8-1 that Colorado’s conversion therapy ban represented an “egregious assault” on a Christian counselor’s free speech rights.
“Colorado may regard its policy as essential to public health and safety,” Justice Neil Gorsuch wrote in the majority’s opinion. “But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”
The Supreme Court’s ruling in Colorado does not automatically strike down Vermont’s law, although it does make it more vulnerable to legal challenges. And the Alliance Defending Freedom, the powerhouse conservative law firm that represented Christian counselor Kaley Chiles before the Supreme Court, has repeatedly sued Vermont in the past to enforce precedents set by the national court — with much success.
Unlike in other rulings that have chipped away at LGBTQ protections, two liberal justices, Elena Kagan and Sonia Sotomayor, joined their more conservative peers in the Colorado ruling.
Clark said it was “noteworthy in terms of the strength of the decision” that the vote was 8-1. Justice Ketanji Brown Jackson was the lone dissenting judge.
But Clark said Kagan and Sotomayor wrote their concurring opinion in a way that she said may help narrow the Colorado decision, and provide a path forward for other states.
