Judicial “Calvinball” in Play in Cases Focusing on Care for LGBTQ+ Minors

In March, the U.S. Supreme Court issued a decision in the case of Chiles v. Salazar. The decision raises many questions and fuels speculation.

But the decision is substantially more nuanced than another round of judicial Calvinball – the game highlighted in the classic comic strip Calvin and Hobbes, in which the rules are made up on the fly. In short, Chiles filed a pre-enforcement suit, claiming that Colorado’s ban on so-called conversion therapy for minors violated the First Amendment. The statute at issue specifically prohibits “any practice or treatment … that attempts or purports to change an individual’s sexual orientation or gender identity.” Just as important, the law excludes from conversion therapy practice that might be supportive of treatment for gender identity conflicts.

The lower courts had reasoned that Colorado’s law is best understood as regulating professional conduct, and that it regulates speech only, incidentally, thus triggering a relatively relaxed review standard. In contrast, the Supreme Court noted that Colorado’s law regulates the content of speech, specifically discriminating based on viewpoint.

For those who don’t have their Constitution in front of them, the First Amendment is a whopping 45 words, and states in relevant part that “Congress shall make no law … abridging the freedom of speech…” In such cases, laws regulating speech based on its subject-matter content are presumptively unconstitutional, requiring the government to prove that its restriction is narrowly tailored to serve compelling state interests. This is known as “strict scrutiny.” “Viewpoint discrimination” represents an even more “egregious form” of content regulation, which is virtually always prohibited.

Despite this presumption, the Court did not find the Colorado law unconstitutional. The Court held only that viewpoint-discriminatory regulation must be subjected to strict scrutiny, and lower courts had applied the wrong review standard. The Court remanded for additional review, consistent with the strict scrutiny requirement.

What is curious about the decision emerges when reviewing it in the face of last year’s superficially similar U.S. v. Skrmetti decision. In this case, along ideological lines, a divided Court upheld Tennessee’s ban on gender-affirming medical treatment for minors.

The first thing to remember is that the Skrmetti Court was deciding a question of Fourteenth Amendment equal protection, not First Amendment. It related to the review standard in cases of potential gender discrimination.

I’ll speculate that the Court may have strategy. If a ban on conversion therapy is not subject to strict scrutiny, then other bans such as supportive therapy for LGBTQ+ individuals might also escape strict scrutiny. This type of legal positioning would be quite reasonable for the liberal Justices, if the rules don’t change – remember, it’s Calvinball.

The Court, unlike in Skrmetti, did not resolve any relevant issue. Now we must wait for the Tenth Circuit to re-review the case under the correct standard. Applying strict scrutiny may invalidate the Colorado statute. Regardless, this case is likely to return to the Court, since neither Chiles nor Salazar seem likely to give up.

For patients and providers, this means we need to carefully review regulations. As we heard recently from Frank Cohen, Chevron Deference isn’t dead, only hiding from the federal judiciary. To the extent that state agency regulation is found unconstitutional, it may have little value in purely administrative proceedings.

That would include state licensing agencies, and possibly some state insurance and Medicaid proceedings.