Call Gender Therapy Bans What They Are: Government Censorship

The Rise and Demise of Bureaucratic Dictatorship

The U.S. Supreme Court’s new term has already produced a case with explosive implications, including here in Wisconsin, and it could be one of the most consequential free speech cases in years—Chiles v. Salazar, a challenge to Colorado’s ban on gender reparative therapy, or, as the corporate media dubs it, conversion therapy.

The derisive media framing of the latter term, bookended by editorial quotation marks to make sure the illiterate masses understand progressive disdain for the practice, underscores the underlying censorship that is at work here. Far from being only a fight over social norms in the cultural wars, clashes over gender therapy will have far-reaching First Amendment consequences. They are, at a very basic level, a fight over whether government can decide what words may be spoken between private citizens—between therapists and their clients—that is, about when protected professional conversations must bow to ideological orthodoxy masquerading as science.

In Wisconsin, there’s another gremlin crawling through the piping, namely, the camouflaged capture of lawmaking by bureaucratic fiat. In this state, Democrats and the media have dishonestly portrayed legislative attempts to block the regulatory ban of reparative therapy as an unconstitutional power grab, when, if the entire history of this legal contest is reviewed honestly, it is exactly the opposite: an unconstitutional power grab of lawmaking by the administrative state and its allies.

If Colorado’s ban is overturned, the U.S. Supreme Court would have struck at the heart of a vast censorship movement that still operates furtively within all levels of government bureaucracy and in all branches. Such a decision would also likely doom Wisconsin’s regulatory ban, and, if conservatives are diligent, lead to a full reckoning of how we got to this point.

Which is to say, it could lead to the demise of the bureaucratic dictatorship itself.

The Wisconsin Precursor

Wisconsin’s pages in this latest chapter of the book known as bureaucratic bossism began when the state’s licensing board for therapists, counselors, and social workers, under the Department of Safety and Professional Services (DSPS), decided to do by rule what the Legislature had refused to do by statute: outlaw therapy that aims to help minors overcome gender dysphoria, or gender confusion.

For years, progressive lawmakers had tried and failed to pass a legislative ban on what they called “conversion therapy.” Sen. Tim Carpenter (D-Milwaukee) introduced the measure multiple times, observing that such prestigious globalist organizations as the United Nations and the International Rehabilitation Council for Torture Victims (IRCTV) had labeled it a “medieval practice” that was nothing less than torture.

“This week, Republicans in the State Senate and Assembly used byzantine rules procedures to stop the therapists, counselors, and social workers of Wisconsin from doing what they know is right,” Carpenter said in 2021. “…. I ask for the support of my fellow legislators to pass this policy to protect Wisconsin’s youth from being subjected to the debunked and unethical practice of conversion therapy.”

So Carpenter—and his progressive colleagues—embraced IRCT’s view that a kid sitting in a therapist’s office grappling with gender confusion was akin to a hostage being waterboarded. And, of course, it isn’t as if the UN and its specialized agencies, such as the World Health Organization, have never been wrong.

No wonder the legislature failed to act. The intent of lawmakers was clear: the state would refuse to blindly impose ideological dogma on professional counselors and instead affirmed that the state should not intrude in confidential conversations between therapists and clients.

And yet, even though the people’s elected representatives refused to enact Carpenter’s bill over multiple legislative sessions, the bureaucrats stepped in to enact it themselves. In February 2020, the board proposed a rule defining as “unprofessional conduct” any method of treatment that sought to “change a person’s sexual orientation or gender identity.”

During the review, members of the Joint Committee for Review of Administrative Rules (JCRAR), the Legislature’s oversight arm over the administrative state, raised alarms that the board lacked authority to implement the rule. They rightly opined that the rule would threaten therapists’ licenses, their free-speech rights, and their religious freedoms.

DSPS pressed ahead anyway, confident that courts would defer to “expert judgment.”

When the case reached the state Supreme Court, it was less about the therapy and more about the broader consequences of completely stripping away from the legislature oversight of the administrative state, for obvious long-term reasons.

On its face, the dispute concerned whether JCRAR had the authority to suspend a rule once the governor had approved it. The court’s progressive majority, siding ostensibly with Governor Tony Evers but really with the bureaucracy, struck down the Legislature’s power to pause or indefinitely object to a rule.

As might be expected, the media dutifully spat out Democratic talking points, saying the case represented a win-win for professional regulation and the public interest, and a loss for legislative obstructionism. Republicans railed against the truly radical precedent the decision set—not only could ideologically driven boards now defy the Legislature’s clear intent but so could the entire bureaucracy—but to little avail.

At least on the question of gender therapy, the radical court majority, after MUCH deliberation of about two seconds, accepted administration arguments that a hostile handful of lawmakers on JCRAR was holding up regulations promulgated under appropriate statutory authority, and without the full legislature and the governor concurring, that is, without bicameralism and presentment.

It was portrayed as a tyranny of a right-wing minority, a betrayal of the people’s due process.

However, the tale the Supreme Court wrote for itself—which the corporate press dutifully regurgitated—was really only half the story. The real story was that the legislature, as reported above, had repeatedly made its intention known by not passing Carpenter’s bills.

The legislature has expressly established a state policy that reparative therapy is legal and allowed. Far from being only a handful of lawmakers blocking the will of the people, the truth is, the issue was about an unelected bureaucracy overriding the will of the people as expressed by the repeated actions—or non-actions, as the case may be—of their elected representatives.

JCRAR wasn’t thwarting the will of the people; it was trying to uphold it. The real story on the therapy issue wasn’t the inability of GOP lawmakers to get a statutory block on the ban enacted; it was the original inability of progressives to get the ban enacted in the first place.

To be sure, the Supreme Court had no way to consider the legislative history in the case before it—the question was about proper (or any) legislative oversight as a constitutional matter—but that’s another reason why legislative oversight of bureaucratic rule-making is so important (not to mention commonsense): to make sure that rules reflect legislative intent, which had already been firmly established.

The legislative history amplifies the historic error the Supreme Court made not only because it defied and stood on its head the logic of requiring legislative oversight of any authority it delegates, but because it sanctioned an obvious administrative override of state legislative policy rather than just the will of an illegitimate handful of lawmakers.

A Ban on Speech Disguised as Regulation

Legislative oversight issues aside, the Wisconsin case was important, at a core level, because of the censorship involved as a base motive for the bureaucratic power grab. In the end, banning gender reparative therapy and stripping away legislative oversight go way beyond protecting the rights of LGBTQ+ individuals; they are about silencing speech that progressives and the deep state don’t like.

The case headed to the Supreme Court, Chiles v. Salazar, lacks the bureaucratic intrigue of the Wisconsin case because it stems from a statute, not a rule, but it is especially fraught with censorship implications.

All the federal lawsuits over free speech violations during the pandemic, from Berenson v Biden to Murthy v Missouri, are landmark cases, but this kind of censorship is even more egregious—it slides government insidiously inside the day-to-day lives and work of professionals, into private lives, too, dictating what preferred speech can be used in an industry work setting and prohibiting speech when it runs afoul of the “science.”

In this federal case, Kaley Chiles, represented by the Alliance Defending Freedom, is a licensed counselor in Colorado who works with teenagers struggling with issues related to trauma, personality disorders, addiction, eating disorders, gender dysphoria, and sexuality. In her brief to the Supreme Court, she insists her approach is conversational, that she counsels minors only if their parents consent and the clients “are internally motivated to seek counseling (as opposed to being required to come): Chiles respects her clients’ autonomy and ‘right of self-determination’—she does not ‘impose her values’ on them or determine their goals.” She does not coerce.

For that, under Colorado law, the state could revoke her license.

Colorado’s 2019 “Minor Conversion Therapy Law” makes it illegal for licensed therapists to engage in any practice or treatment designed to “change a minor’s sexual orientation or gender identity,” primarily through verbal means. As her brief argues,

And yet the law forbids only one direction of conversation, Chiles argues: speech that affirms the possibility of alignment between body and identity:

As the Alliance Defending Freedom (ADF) put it, Colorado’s statute “allows counselors to push kids down the path of gender transition, often leading to harmful drugs and surgeries, but it doesn’t allow compassionate counselors like Kaley to help them accept their bodies, even when that is their express goal and they have voluntarily sought Kaley out for advice.”

“This is censorship, pure and simple,” ADF chief legal counsel Jim Campbell said. “Colorado is picking sides, promoting gender ideology, and banning conversations it dislikes. We are hopeful the Supreme Court will uphold counselors’ freedom of speech and young people’s ability to set their own goals of living at peace with their bodies.”

Chiles herself puts it more personally.

“When my young clients come to me for counsel, they often want to discuss issues of gender and sexuality,” Chiles said. “Yet my home state only allows them to pursue state-approved goals like gender transition. Colorado’s law harms kids and censors speech.”

The 10th U.S. Circuit Court of Appeals rejected her claim, ruling that the law regulated “professional conduct” and had only an incidental, or peripheral, impact on her speech. That enabled the court to apply the most deferential constitutional standard—rational-basis review rather than strict scrutiny—and to subsequently uphold the ban.

Speech as Conduct

The tactics used by the 10th Circuit and by the state itself—transforming talk into conduct—has become the deep state’s favorite trick. It allows regulators to censor professionals while pretending to regulate practice. What they are really “regulating” is speech because there are no surgeries or medications, no puberty blockers, only conversation and counseling.

Here’s how Chiles’s brief to the Supreme Court puts it:

Granting bureaucrats the power to decide which ideas can be discussed in professional contexts is a step too far. Actually, it’s many steps too far. As Chiles’s brief extrapolates the consequences, if such logic stands, states could ban doctors from discussing birth control, or counselors from encouraging reconciliation or divorce in troubled marriages. And it could, in many states, lead to a ban on therapy that helps clients embrace a transgender identity, putting the shoe on the other foot.

In oral arguments in Chiles, justice Amy Coney Barrett addressed that potential outcome:

There’s no question that the state of Colorado is saying yes.

Alito followed in Barrett’s footsteps, cautioning about the automatic acceptance of medical consensus, as Carpenter pushed in Wisconsin. Specifically, Alito warned that the “standard of care” that Colorado invokes has often been captured by ideology.

“Have there been times when medical consensus has been politicized, has been taken over by ideology?” Alito asked. “Isn’t it a fact that it’s happened in the past? …. Was there once a time when many medical professionals thought that certain people should not be permitted to procreate because they had low IQs? Was there a time when there were many medical professionals who thought that every child born with Down syndrome should be immediately put in an institution?”

Alito’s point was that Colorado’s law was based on medical consensus—a point the state’s solicitor general conceded—but that medical consensus has a long history of ideological capture.

The long-term consequences are dire, Chiles brief continues:

An insidious movement

The whole idea of woke, of course, is to demand adherence to progressive doctrine.

The need for such conformity is powerful on the left—any dissent is necessarily infectious and thus dangerous—and so, as the scaffolding of its public illusions increasingly falls away, progressives rush to inject censorship regimes into the very tissue of society.

Given the chance, they silence opponents on social media, they indoctrinate in schools, they propagandize through the corporate media. And they look for ways to slowly, inexorably muscle their way into the fabric of everyday work and life. The bureaucratic class cloaks ideology in the language of expertise. They punish those who dissent as practitioners of malpractice.

They call them witches practicing witchcraft, in effect, and attempt to burn them at the stake professionally.

In states like Colorado, progressives pass laws that violate fundamental rights of free speech; in states like Wisconsin, when that doesn’t work, they use dogmatic and unelected government “licensing police” to make sure the ideological line is toed. In the Badger state, news stories have focused on the moral and political framing—protecting minors from harm, rogue lawmakers somehow usurping their own constitutional powers—while ignoring the bureaucratic takeover and suppression of speech.

A ruling for Chiles would not be confined to Colorado. It would straightforwardly foreclose the censorship of one profession and have similar ramifications for many more. Wisconsin’s ban—identical in substance and more nefarious in origin—would likely be swept away, too.

Here’s the thing in Wisconsin. If Colorado’s ban is ultimately overturned, the licensing board’s attempt to impose a ban after legislative failure must and would come under explicit review. The entire myth manufactured by progressives and upheld by the state’s high court—the automatic supremacy of ideological, unelected professional boards over an elected legislature—must be subjected to brand new political scrutiny.

If that happens, it will be up to conservatives to seize the moment and to correct the record, to show the people that what both progressive lawmakers and bureaucrats demanded was nothing less than the forfeiture of their rights and the rights of their families to choose for themselves what professional counseling they can engage in. As Chiles’s brief put it, “This case is about who gets to decide the views expressed in those important conversations: families and their chosen counselors or government officials.”

And so in this sense, Chiles v. Salazar is not merely about therapy. It is about whether a free people may still speak freely within the professions they populate. Can a counselor affirm the possibility of bodily reconciliation? Can a teacher express a traditional view of gender without fear of professional ruin? Must all therapy be cut from the same government cloth, as the state demands, just as they demand the same these days of private choice schools?

In all these cases, if the purpose of autonomy is hung from the rafters using the rope of government compliance, if the answers to the above questions depend on government permission, the First Amendment is already lost, not just for professional counselors but for all of us.