Supreme Court considers conversion therapy. Here's what it could mean for Minnesota's ban

NINA MOINA: Well, this US Supreme Court is weighing whether banning LGBTQ+ conversion therapy for minors is unconstitutional. 24 states, including Minnesota, have banned the practice. Oral arguments were held two weeks ago. And if the justices decide the ban is unconstitutional, it could be repealed in Minnesota.

Here to give a little context on the issue is Minnesota-- in Minnesota is Jess Braverman. They're the Legal Director at Gender Justice in St. Paul, a nonprofit that seeks to advance gender equity through law. Thank you so much for your time this afternoon, Jess.

JESS BRAVERMAN: Thank you so much for having me.

NINA MOINA: For starters, I just want to make sure that we can define for our listeners what conversion therapy is, and what settings does it generally show up? Would you mind doing that for us?

JESS BRAVERMAN: Of course. So conversion therapy is-- there's not one way that conversion therapy is practiced. But the goal of conversion therapy, it's specifically targeted towards stopping someone from being gay, or being transgender, or changing their gender.

So we're not talking about the kind of therapy where people say, oh, I think I might be gay. I think I might be trans. I want to understand myself better. I want to explore that. We're talking about therapy that has a specific purpose, which is to stop people from being LGBTQ+.

NINA MOINA: So in 2023, not that long ago, Minnesota became the 21st state, I understand, to ban conversion therapy. And so it's been on the books a couple of years. Would you take us back to explain how Minnesota came to make that choice? What was the work that led up to that and the need there?

JESS BRAVERMAN: Yeah, so we know in 2021, there was an executive order signed by Governor Walz that directed state agencies to look into the issue of conversion therapy and to make sure that conversion therapy wasn't being promoted by the Minnesota government.

And so executive orders are orders that are typically geared towards state agencies. And so that's what this was. Then in 2023-- it was April 2023-- the state legislature banned conversion therapy in Minnesota. And what that looked like is that there was a law that was put in place that said that licensed mental health professionals could not subject minors to conversion therapy. And so that's specifically who the law was talking about.

Leading up to that bill being signed, we heard from an organization called Born Perfect that, in the state of Minnesota, there were at least 28 organizations that supported conversion therapy and at least 86 therapists who used it. And of those, at least 34 of whom were licensed in-- licensed mental health providers in the state.

So this is something that was happening in Minnesota up to the time that it was banned here. And the ban itself is a bit limited in scope in terms of who it applies to. So it doesn't prohibit, let's say, a pastor or a religious group necessarily from providing this. It's focused on licensed mental health providers.

NINA MOINA: Have medical professionals, mental health providers come to a consensus around their opinion of conversion therapy, especially when it pertains to minors?

JESS BRAVERMAN: I think that's a really good question because a lot of people play around with, what does the word "consensus" mean in the medical area? What does it mean for there to be a consensus? I would say, yes, there is a consensus that conversion therapy is harmful.

Most major medical associations in the United States, for example, oppose the practice of conversion therapy. And so to the extent that-- consensus doesn't have to mean unanimous. There's, of course, people who can disagree with this. But on the question of, is there a consensus? I would say there is. And that consensus opposes conversion therapy.

NINA MOINA: I'm curious about the last couple of years since this law did go into effect. What changes have you seen? Or have you heard more stories? Or are people just perhaps sending their children out of state to a different type of facility or place? What are you seeing just the past couple of years since the ban?

JESS BRAVERMAN: So I would say that it's really hard to capture. There are studies on conversion therapy, how common is it, and that sort of thing. For example, in 2019, the Williams Institute put out a study saying that 698,000 LGBT adults have received conversion therapy, 350,000 of whom were subjected to it as adolescents.

But it's a really hard thing to capture because we're talking about kids. We're talking about minors. And so you have a family who's sending a minor to a specific therapist for the specific purpose of making them not gay or making them not trans. How likely is it that the kid is going to report to someone, hey, this is happening to me? And so it is a really difficult thing to capture.

The other difficulty about it is that the law is limited in scope, as I mentioned earlier. So we're only talking about licensed mental health providers. And so if someone's providing conversion therapy, they could be subject to licensing issues.

If you're not licensed, though, the ban doesn't apply to you. And so you can't hold yourself out as a mental health professional in Minnesota if you're not licensed. However, you can still do all of the things that one would consider to be conversion therapy. So it's a really hard thing to capture in terms of numbers, percentages, but the law itself doesn't put an end to the practice. It just puts an end to licensed providers providing it.

NINA MOINA: Can you give an example of conversion therapy, what it would look like in practice? I'm just curious for people to know, is it a lot of conversations? Is it bringing in other family members? What could it look like? I know you said it can be individualized.

JESS BRAVERMAN: That's a great question. And to really understand the scope of the effect that it has on people who are subject to it, we need to tell the full story. So you have a minor who's living with their family, and they're subject to their family's feelings and acceptance and all of the things. Think about back when you were a kid and what it felt to have acceptance or rejection from your parents about anything.

So you have a kid who's living in a home and being told being gay is wrong or being transgender is wrong, but we're going to take you to either a therapist, or a priest, or a rabbi, whoever it may be, and we're going to fix it, we're going to make you better.

And so this already sends that message to that kid, like, something fundamental about me that I can't change is wrong and bad. And so I think the harm already starts before the therapy has even happened.

The conversion therapy itself, it's just-- given that setting, it's just inherently coercive. But what it is, is for some people, it can be talk therapy, where someone talks to someone about changing those feelings that you have and who you are. It can be more than that. So there are stories out there of basically kids being pulled out of their home in the middle of the night in a really dramatic fashion and taken to a camp, where it's a conversion therapy camp. There are stories like that.

There are also stories of people having received what's called aversion therapy, where whenever they think about something related to being gay or being trans, they're forced to have something unpleasant happen like vomit or have an electric shock. And so it's a range of-- it's a range of things that can range from talk therapy to things that are physical.

NINA MOINA: So, right now, catching up to current day when the US Supreme Court is going to be making a decision surrounding conversion therapy, it's supposed to be next year that the decision comes. Walk me through the possible outcomes that you are preparing for and what they would mean for services you provide.

JESS BRAVERMAN: Yeah, so the main crux of the case is the question of whether conversion therapy is considered speech under the First Amendment of the United States Constitution. Because in life, in general, medical care is regulated. So that includes mental health care. Mental health professionals, to call themselves that, have to be licensed, for example. And they can't lie to their patients.

So when you're actually practicing medicine, when you're practicing therapy, the way you practice is regulated by the state to some degree. And that includes the things you say. Because talk therapy is a treatment. It's not just a conversation.

And so the question in the case is, is this speech or not? And if conversion therapy is considered speech, then it's subject to what courts call strict scrutiny, meaning that the court is very likely to take an extremely close look at the conversion therapy ban and find it unconstitutional. It doesn't have to be that way. But when you get a situation, a strict scrutiny situation, as we call it, that's usually what happens. It's a very difficult bar to cross.

And so if the court says that conversion therapy, at least so far as it's talk therapy, is a form of speech, it will be very hard moving forward for states to maintain their bans on conversion therapy. So it would be very hard, in practice, for Minnesota to maintain their ban or to enforce their ban if the Supreme Court says that it's considered speech and we're going to allow it.

NINA MOINA: And if that does happen, if it does go that way, just before I let you go, Jess, what are your plans then for from your organization's standpoint and other advocates?

JESS BRAVERMAN: Well, one thing is we're going to continue to stand up and affirm LGBTQ youth and make sure you know that you are loved, you are accepted, you are welcome here in Minnesota, and there are lots of adults who are out there fighting for you.

We're going to make sure that LGBTQ youth who might be feeling really rejected at this moment know that there are adults out there who care. And that's one thing we're always going to do.

Another thing is that we have to look at how broad or narrow the ruling is. It might say that talk therapy is speech. But if you get to the other thing I was talking about, aversion therapy, where you start to actually do physical things to someone, that's a different story.

And so we're going to have to see how wide or narrow this ruling is and go from there. But I do just want to say to any trans kids listening, to any parents of trans or gay kids listening, that there are organizations out there who are fighting for you, who support you, who believe that you're beautiful just the way you are, and that you're more than welcome here in Minnesota. And Gender Justice is among them out front. There's lots of groups here who feel that way and are fighting this.

NINA MOINA: All right, Jess, thanks so much for your time this afternoon. Really appreciate it. That was Jess Braverman, legal director at the nonprofit Gender Justice in St. Paul.