Tice: Conversion therapy, gender transition and — that old hobgoblin — consistency

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Minnesota is one of 25 states that have in recent years banned licensed mental health therapists from giving minors so-called “conversion therapy” — counseling aimed at reducing or eliminating unwanted same-sex attraction or transgender identity.

Judging from oral arguments in early October, on the first day of the U.S. Supreme Court’s fall term, it seems likely these bans themselves may soon be reduced or eliminated, struck down as unconstitutional restrictions on free speech in a case challenging a Colorado law.

If the high court majority bans conversion bans, the justices will have signaled anew, for better or worse, that they see constitutional limits to a kind of “house divided” compromise that has been taking shape, or trying to, in America’s culture war. It’s a trend the modern conservative court has at times done its share to advance, in which different states or localities enact and live under often starkly different policies on polarizing social issues, from abortion to transgender rights to school curricula to the death penalty to gun regulation to immigration and more.

Of course, federalism — policy variation from state to state — is as old as our republic. It is the original American contrivance for balancing unity with diversity across a large multicultural nation. Controversy over just how far live-and-let-live tolerance can go also has a long and dramatic history. A fight over extending “popular sovereignty” concerning slavery to new territories triggered the Civil War.

Much more recently, America seemed to be moving away from uniform traditionalism and toward a state-by-state patchwork of laws regarding the definition of marriage and the rights of same-sex couples until 2015, when the Supreme Court abruptly ruled that the Constitution required coast-to-coast legalization of same-sex marriage. Similarly, albeit from the opposite side of the cultural divide, the court has in several landmark cases restricted states’ and localities’ ability to regulate guns according to their own best judgments. More cases testing local control over guns are likely coming.

Meantime, policy diversity over transgender rights is having its hour before the court. Cases challenging bans on transgender athletes in girls’ sports loom this term, along with the disputes over medical treatments.

Within less than a decade, the nation has split like a piece of dry stove wood over the puzzle of how best to help kids who are uncomfortable with their bodies and confused about their gender and their urges. Half the states have passed laws forbidding “gender-affirming” care for minors — medications or surgical interventions aimed at transitioning young people toward their declared gender identity. As noted, the other half of the states, including Colorado and Minnesota, have outlawed conversion therapy for minors.

The Supreme Court issued its first ruling on these matters in June, when it upheld a Tennessee law prohibiting sex transition treatment for minors. The court’s six conservative justices found no sex discrimination in a ban on sex reassignment therapies for either sex in either direction. The court’s three liberals dissented.

By contrast, the justices’ questions and comments during this month’s oral arguments over Colorado’s conversion therapy ban left most observers (me included) thinking the Colorado law will fall.

If so, this will be a difficult pair of decisions to reconcile for many (me included).

From the same conviction that the young can be in over their heads on sex (even more than the rest of us), I believe it’s misguided for states to prevent mental health professionals assisting young people who want to become more comfortable with the bodies they were born with. Importantly, in the type of counseling at issue in the Colorado case, the young clients’ participation would be wholly voluntary. To be sure, minors are vulnerable to adult influence, but that’s true whatever type of therapy is being offered.

In any event, these are merely one old American’s old-fashioned ideas about what the law should and should not be. But not every law I oppose is “unconstitutional” just because I think it unwise or unjust. And not every policy I favor is permitted under the Constitution just because it sounds like a good idea to me. In the Tennessee ruling, Chief Justice John Roberts declared: “The Court’s role is not to judge the wisdom, fairness, or logic of [the policy in question], but only to ensure that the law does not violate equal protection guarantees. It does not. Questions regarding the law’s policy are thus appropriately left to the people, their elected representatives, and the democratic process.”

This is a splendid elucidation of one of the hardest of all principles for us ordinary Americans to hang onto concerning the way “government by the people” is given real force. Yet I fear that with these transgender cases the court (hardly for the first time) may not make it any easier.

Four months ago, the court decreed that the U.S. Constitution permits states to ban medical treatments that affirm a minor’s desire for a sex reassignment. But if observers are correct, the same court will soon rule that the same Constitution forbids states from banning counseling to help minors get rid of such desires. In each case (if observers are correct) all the court’s conservatives will have voted, in effect, against sex transitions and all its liberals will have voted, in effect, in support of them.

Are we really supposed to believe that none of this involves the justices expressing their varying judgments on the “wisdom” of sex transitions?

The explanation for the threatened contradiction between these outcomes will apparently be that while Tennessee’s ban on gender-affirming care did not violate the 14th Amendment’s “equal protection” clause, Colorado’s ban on conversion therapy runs afoul of the First Amendment’s guarantee of free speech. The counseling involved, it seems, is delivered entirely as talk therapy.

It’s not a ridiculous explanation. Speech emphatically has a special status under the Constitution and in American life. But the mere use of words is not an all-purpose license to evade legal restrictions and regulations. Fraud is not immune from sanction when it happens to be perpetrated with words; nor is perjury, or defamation, or incitement, or blackmail, or espionage, etc., etc.

In the Tennessee case, Roberts explained: “States have wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” Well, if it’s wide enough in one direction it ought to be wide enough in the other.

It would be easy to understand parallel rulings that the Constitution leaves states free to ban either sex transition treatments or conversion therapy (or not free to ban either) — even though any such “house divided” resolution would leave everyone (me included) troubled by the policies in force in some states.

If the Roe v. Wade era taught America anything, it’s surely that counterfeit, court-ordered unanimity on an unalterably divisive issue is no sure path to social peace.