If you came into Tuesday’s oral argument over Colorado’s conversion therapy ban blind, you’d assume that the practice, meant to “turn” LBGTQ+ people “straight,” has supporters and detractors in equal measure, is a hotly debated medical practice.
“Let me describe medical uncertainty as competing medical views,” Justice Amy Coney Barrett said. “Let’s say that you have some experts who say gender affirming care is dangerous to children and some that say this conversion talk therapy is dangerous.”
She went on to ask Colorado’s solicitor general why, if Tennessee’s “standard of care” is that conversion therapy is fine and Colorado’s is that it’s not, both states don’t get heightened speech protections for those laws.
Her hypothetical is consistent with how the right-wing justices on the Court always treat medical consensus when it contravenes their ideological preference: that it’s actually ambiguous or contested.
In this case, no amount of medical consensus can convince the Court’s majority that conversion therapy is a debunked, harmful practice — they poke holes in the mountain of evidence on the anti-conversion therapy side (this time, that the many studies weren’t precisely tailored to the case at hand) and elevate pseudoscience on the other.
They attack professional medical opinion altogether as untrustworthy, the better to level out the “two sides” of the debate.
“Was there a time when many medical professionals thought that certain people should not be permitted to procreate because they had low IQs?” Justice Samuel Alito mused, invoking the era of eugenics. “Was there a time when there were many medical professionals who thought that every child born with Down Syndrome should be put immediately in an institution?”
It’s the same positioning that allowed the Court to prohibit gender-affirming care for minors last term in Skrmetti, to entertain the lie that mifepristone is dangerous and to theorize that women who get abortions are plagued by regret for the rest of their lives. No amount of evidence and data is solid enough to dislodge those priors, and the conservatives repeatedly bolster debunked or flawed or rabidly partisan “evidence” to the contrary.
This project is the defining one of the Trump-era political right in general — the discrediting of elites, sowing distrust in serious organizations, “flooding the zone with shit” until truth is relative. “Do your own research” is its battle cry.
Per Alito, that medical consensus has, at any point in history, been “politicized” or “taken over by ideology” is a good enough reason to believe that conversion therapy is actually safe and effective. The reams of evidence proving otherwise, next to the complete absence of evidence showing that it’s ever “worked” pale in comparison to the facile argument that “well, sometimes doctors have gotten it wrong.”
Justice Clarence Thomas has been most honest about his role in advancing this project. In Skrmetti, the court’s approval of gender-affirming care bans for minors, he wrote in his concurrence, “this case serves as a useful reminder that the American people and their representatives are entitled to disagree with those who hold themselves out as experts, and that courts may not ‘sit as a super-legislature to weigh the wisdom of legislation.’” He pooh-poohed the “so-called expert consensus” as something he’s decided simply does not exist.
That he, or the Tennessee legislature, or the people who voted for its members may actually know less than those trained in the medical issues at hand evaporates in the face of his dripping disdain for those who dare to “hold themselves out as experts.”
The Trump administration has single-mindedly driven civil servants out of the federal government, attacked universities and news outlets that contradicted him the first term, turned the Centers for Disease Control into an anti-vax megaphone, and is now installing and inflating a masked, secret police force in ICE with continually lowered bars of training and experience.
In lockstep, its legal arm does its own work to discredit experts and their snobbish opinions, the better to extend a regime of hostility towards gay children to their doctors’ offices and therapy couches.
