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How Kafer Gets the Conversion Therapy Bill Wrong
Kafer misreads the bill in question and misunderstands the proper application of free speech in this area.
Copyright © 2024 by Ari Armstrong
December 19, 2024
Krista Kafer is one of my favorite people and one of my favorite columnists in the state, and I respond here to a recent article of hers because I think that what she writes matters and that she tries hard to discover the truth.
The headline well-summarizes Kafer's position: "Colorado's law dictating transgender care violates the First Amendment." But I don't think she's reading the bill in question correctly, and I don't think she's right that, as she seems to imply, a licensed psychiatrist has absolute freedom of speech in the context of practicing psychiatry with a child.
Let's start with the bill in question, House Bill 2019-1129. Here is how Kafer describes that measure:
The law dictates that a therapist affirm a girl or boy's desire to transition to the opposite sex. The counselor cannot legally engage in conversation that will help the teen accept his or her body and biological gender identity.
But that is not what the bill says. The bill does ban conversion therapy involving a minor, but here's how it defines that:
"Connversion therapy" means any practice or treatment by a licensed physician specializing in the practice of psychiatry that attempts or purports to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.
The law does not positively dictate "that a therapist affirm a girl or boy's desire to transition to the opposite sex," here meaning gender, as Kafer claims.
Granted, this matter could be litigated, so I'm not claiming that Kafer's fears are totally unfounded.
The key matter is the meaning of "gender identity," and the key question is whether a minor ever can be wrong about their own gender identity.
Someone might pretend that a boy is a girl simply by virtue of proclaiming themself to be a girl. Clearly that won't do. Compare: We don't take seriously a boy's claim to be the reincarnation of Genghis Khan just because he says he is. If we're going to take gender seriously as a psychological phenomenon that differs from biological sex, then he have to think that it's possible for a person to be right or wrong about claims of gender self-identity.
One recent study found that, of a group of "317 initially-transgender youth," within a few years, "7.3% of youth had retransitioned at least once." Although the study, as it says, suggests "that retransitions are infrequent" as a percentage of the total, it also suggests that they are relatively common in terms of total numbers. A straightforward implication of this study is that people can be wrong when they claim to be transgender. It is also the case that a person can really be transgender but errantly claim to be cisgender.
If bill 1129 meant that a psychiatrist had to assume that any minor who claimed to be transgender (or cisgender) really was, and never could say anything to the child to suggest otherwise, then the bill would be bad. I think that, if the matter is litigated, the courts rightly will presume that the law is not on its face ridiculous.
Let's say a psychiatrist sincerely thought that a minor's claims to be transgender were or might be inaccurate. The psychiatrist reasonably could say they were not trying to "change an individual's sexual orientation or gender identity" but merely to affirm the person's (possible or likely) actual gender identity, or to help the person further explore the person's gender identity.
Legal Limits of Psychiatric Speech
Another law, deriving from Bill 2021 1108, defines "gender identity" as "an individual's innate sense of the individual's own gender, which may or may not correspond with the individual's sex assigned at birth."
In context, then, the bill banning (select) conversion therapy does bar a psychiatrist from taking an approach (with minors) holding that all claims of transgender identity are inherently errant. So Kafer still (as I read her) wants to say that the bill violates the First Amendment rights of such psychiatrists.
Let's begin with the broadest issue: Is any and all speech by adults toward minors protected by the First Amendment? Obviously not. We can leave aside obvious cases of incitement to violence and the like. There is some level of verbal abuse by parents toward their children that would warrant state intervention, and parents could not claim First Amendment protection for such verbal abuse.
Similarly, abusive speech by psychiatrists toward children is not inherently protected by the First Amendment. Some statements by a psychiatrist toward a minor clearly would be abusive, such that the child is worthy of physical punishment, self harm, or sexual abuse.
A psychiatrist also abuses a minor when (in a professional setting) the psychiatrist insists that the child cannot be gay or transgender, when the child plainly is or sincerely believes themself to be. But, given the (I think obvious) fact that minors can sometimes be wrong about being gay or transgender (or straight or cisgender), I think it would be appropriate for a psychiatrist to explore with the child the basis of the child's feelings.
We're not talking about a person's rights to discuss issues of sexual orientation and gender identity in general. We're talking about a very specialized relationship between a psychiatrist and a minor, in which profound power differentials exist, where the state has an obvious interest in protecting the minor from abuse.
In short, government has no obligation to sanction abuse of minors, and the First Amendment does not protect such abuse. But what counts as abuse must be weighed in the context of reality. Some children really are transgender, and some children really are wrong in claiming to be transgender. The law properly recognizes both facts.
The broader context here is state licensure and regulation of psychiatrists. Should someone be able to put up a shingle claiming to be some sort of counselor or advisor to minors, without government approval? Yes, I think so. Should government be able to regulate what that counselor or advisor may tell children, in order to prevent abuse? Again, I think so.
But notice here that the law in question does not allow a minor to seek conversion therapy even if the minor wants it. At some point we should recognize the agency of the minor. There could be something like a default ban on conversion therapy (of the relevant sort), with a court override to recognize when a minor is making a genuinely self-reflective decision to pursue conversion therapy. Notice that we can think that conversion therapy is a bad idea but still recognize a person's right to pursue it. We don't question the right of an adult to pursue conversion therapy.
Restricting speech to children on grounds that the speech is abusive is a dangerous tool. Many religious conservatives want to say that any suggestion that a child might be transgender is inherently abusive, than any advice that a transgender youth receive gender-affirming medical care is inherently abusive, that any advice that a minor get an abortion is inherently abusive, and so on.
We could make the argument that, even though conversion therapy (of the relevant sort) really is abusive, we should not get government into the business of regulating such things, just because we know that government sometimes can get things wrong. Maybe it's safer to allow conversion therapy, however abusive, than to give government the general power to restrict speech directed at minors. We all know that many religious conservatives will not hesitate to use the power of government to achieve their political aims, if they are able to do so.
A broader conclusion we can draw is that the matter is a lot more complex than many people initially presume. We should proceed with caution.