Colorado's Craziness Foiled Again
A Supreme Court decision, a Supreme Court argument, and a new federal suit to protect women's sports.
This week, the Supreme Court rejected Colorado’s effort to prohibit counselors from assisting clients who were struggling with issues relating to their own gender, finding the prohibition against allowing a counselor to, for example, tell a male he is a male to be an assault on the First Amendment. There was oral argument in Trump v. Barbara, which concerns President Trump’s Executive Order that children born to temporary visitors and illegal aliens are not U.S. citizens by birth. And we also saw the Trump Administration sue Minnesota for its school policies allowing male athletes (“transgendered”) to participate in girls’ sports and to share locker rooms with girls.
Supreme Court Rejects Colorado Law Banning Unapproved Speech
On Tuesday, March 31, the Supreme Court – in an 8-1 opinion – upheld the First Amendment rights of medical providers against state efforts to impose viewpoint-based restrictions on “conversion therapy” with minor clients.
The lawsuit at issue was brought by Kaley Chiles, a mental health counselor in Colorado who provides treatment for a number of issues, including trauma, addiction, eating disorders, gender dysphoria, and sexuality. The aim of her practice is not to impose her values on her clients, but rather to help her clients achieve their individual goals. Some clients are content with their sexual orientation or gender identity. Other clients seek her treatment to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their bodies.”
Her practice stood in contradiction to a 2019 Colorado law that prohibits licensed counselors from taking part in “conversion therapy” with minors. The law forbids “any practice or treatment . . . that attempts . . . to change an individual’s sexual orientation or gender identity.” It also forbids any effort to “change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” But it does allow counselors to support a client’s gender or sexual identity. It also provides that counselors provide assistance to “a person undergoing gender transition.”
Violation of the Colorado law can subject a counselor to fines, probation, or the loss of their license. Overall, 25 other states have similar laws banning similar therapy for minors.
Chiles filed suit in a Colorado federal court, which denied her request for a preliminary injunction. She appealed that decision to the Tenth Circuit which also denied the preliminary injunction, finding that the Colorado law regulated speech that was only incidental to professional conduct. The Tenth Circuit reviewed the Colorado law under “rational basis review” under the First Amendment, which required Colorado to only show that the law is rationally related to a legitimate governmental interest. The Tenth Circuit concluded that the State met that standard.
The Supreme Court accepted this case to resolve how the First Amendment interacts with laws like Colorado’s when those laws are applied to talk therapy.
Writing for the majority, Justice Neil Gorsuch reversed the Tenth Circuit, concluding that “the courts below failed to apply sufficiently rigorous First Amendment scrutiny in this case.” The Court’s opinion made clear that “the First Amendment’s protections extend to licensed professionals as much as they do to everyone else.”
Important to the Court’s reasoning was that the Colorado law did not just regulate the content of Ms. Chile’s speech, but it goes further in “prescribing what views she may and may not express.” This left her unable to express certain perspectives that the “State disfavors when speaking with consenting clients.” In effect, Colorado “seeks to silence a viewpoint she wishes to express.” This law, the Court concluded, represents an “egregious assault” on the First Amendment.
Justice Ketanji Brown Jackson filed the lone dissent. She viewed the prohibition on “conversion therapy” as an incidental restriction on speech, and argued that the “restriction speech is not being regulated ‘as speech.’” Instead, “the speech restriction is a mere byproduct of the State’s healthcare regulation.” She saw “no traditional First Amendment principle” to prevent this type of State regulation.
Justice Jackson continued, alleging the Supreme Court has created a “slippery slope” and opened “a dangerous can of worms” by “bless[ing] a risk of therapeutic harm to children by limiting the State’s ability to regulate medical providers who treat patients with speech.”
It is notable that Justice Jackson was unable to convince any other Supreme Court Justice of her position. Justice Gorsuch wrote that she had a fundamental misconception of the Court’s precedent. Even Justice Elena Kagan, a fellow liberal, had harsh words for the dissent, stating Jackson’s view “rests on reimagining – and in that way collapsing – the well-settled distinction between viewpoint-based and other content-based speech restrictions.”
The Supreme Court Heard Arguments on Birthright Citizenship
President Trump made Supreme Court history by being the first President to attend the Court’s oral arguments. On Wednesday, April 1, the Supreme Court heard oral argument for the birthright citizenship case: Trump v. Barbara. Not long after his inauguration, President Trump issued an Executive Order that set the federal government’s policy to end universal citizenship for every person born within the United States. It excludes from citizenship children born to illegal immigrants and to children born of foreign persons who are temporarily in the United States.
Trump’s Executive Order seeks to restore the original understanding of the Fourteenth Amendment, which was adopted to grant citizenship to freed slaves and their children. The plain text of the Fourteenth Amendment requires more than the simple birth on U.S. soil, stating: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
The Trump Administration faces a difficult task before the Supreme Court. While it would not be a surprise if Justices Thomas and Alito sided with the Administration, convincing Justices Roberts, Barrett, and Gorsuch will be much more difficult. (The liberal wing – Justices Kagan, Sotomayor, and Jackson – will not vote to end birthright citizenship—no matter how many people abuse it.) Justice Roberts said the Administration was relying on “very quirky” arguments. Justice Gorsuch seemed skeptical that Supreme Court precedent was in the Administration’s favor. Justice Barrett stated the Administration’s position introduced “a new kind of citizenship.”
It could very well be the case that the Supreme Court avoids applying the Fourteenth Amendment. Instead, the Court could find that President Trump’s Executive Order violates federal law. It would then be up to the Trump Administration to go through Congress to limit birthright citizenship. It will likely be several months before the Court renders a decision.
Trump Administration Sues Minnesota to Protect Girls’ Sports
This week, the Trump Administration filed suit against Minnesota to stop the state’s “unapologetic sex discrimination against female student athletes” in violation of Title IX of the Educational Amendments of 1972.
The Minnesota Department of Education receives approximately $2.98 billion in federal funding. This funding is conditioned on Minnesota’s agreement to comply with Title IX and the U.S. Department of Education’s regulations implementing Title IX. In violation of Title IX and in violation of those regulations, Minnesota is requiring that girls “compete against boys in athletic competitions that are designed exclusively for girls and share intimate spaces, such as multi-person locker rooms and bathrooms, with boys.”
While Minnesota separates school athletics by sex, it also provides “an exception that allows trans-identifying males to participate in athletics specifically designed for only female students.” According to the Trump Administration, this policy “conflicts with Title IX’s requirement to not discriminate on the basis of sex because it conflicts with and eliminates the biological basis that justifies intentionally separating athletics by sex.”
Through these policies, Minnesota places substantial costs on their female students. As cited in the complaint, male athletes – who have a natural biological advantage – have started to dominate girls’ high school athletics.
Additionally, Minnesota’s rules allowing males to share school restrooms and locker room facilities with girls has subjected “students to a hostile educational environment and sexual harassment that is so severe, pervasive, and objectively offensive that it deprives students of equal access to educational opportunities.” Female students who have objected to sharing these intimate facilities with males have been ignored and disregarded by school officials.
In light of these violations of Title IX, the Trump Administration has asked a federal court to grant a permanent injunction ordering the State of Minnesota to: (1) stop allowing males to participate in female athletics; (2) maintain sex-separated locker rooms and bathrooms; (3) amend their policies to comply with Title IX; and to (4) establish a process to compensate female athletes who have been wrongly denied equal athletic opportunities due to Minnesota’s violations, including correcting past athletic records.
Nothing in this publication constitutes legal advice or creates an attorney-client relationship. If you have questions, please consult your own lawyer.
What’s really going on (it appears) is that the wrongheaded violators of natural law are being hit with more common sense than they’re capable of handling. If it doesn’t fit the script they’ve been handed, they lock up, implying they don’t have any core morals or beliefs whatsoever.