Do Bans on Conversion Therapy Impose a Governmental "Orthodoxy" About Sex and Gender?

In Part I, this Essay evaluates how orthodoxy arguments featured in Mr. Tingley’s challenge to Washington’s ban on conversion therapy. Part II offers a preliminary analysis of Chiles v. Salazar, 42 which the Court will hear during its 2025-2026 Term. I illustrate how the arguments made against Washington’s law by Chiles and her amici draw from the anti-orthodoxy and marketplace of ideas rhetoric found not only in Justice Thomas’s Tingley dissent and his NIFLA opinion but also in Justice Gorsuch’s majority opinion in the 303 Creative decision.43 Woven together with these speech arguments are appeals to the Court’s protection, in cases like Kennedy v. Bremerton School District, 44 of the ability of conservative Christians, like Brian Tingley and Kelly Chiles, to “live out their faiths in daily life,” even when doing so conflicts with state regulation of licensed health care professionals.45 While the primary focus of this Essay is conversion therapy bans, there are some significant parallels to arguments for and against state bans on gender-affirming care. As Joanna Wuest demonstrates in her analysis of the Skrmetti case for this symposium, casting doubt on medical “expertise” or “consensus” and on the safety and efficacy of gender-affirming care is a prominent tactic in defenses of bans on gender-affirming care.46 By attacking a “gender ideology” that distinguishes “biological sex” from gender, defenders of such bans appeal to biology, “reason,” common sense, or to God’s “created order,” in which one’s “biological sex” is an immutable gift.47 State bans express a purpose of helping minors affirm or become comfortable with their “biological sex.”48 So too, licensed counselors who challenge state bans on conversion therapy appeal to this supposed doubt about gender-affirming care to insist that the state must permit an “uninhibited marketplace of ideas,” in which they can warn against the harms of such treatment. They seek to counsel (willing) minors about how to become comfortable with their God-given sex and, if they experience same-sex attraction, to resist it and embrace heterosexuality.49 As discussed below, this worldview itself is an orthodoxy about traditional gender roles and performances: that sex is binary (male/female) and that a person’s “gender” and gender roles can be no other than that of their biological sex (male/masculine; female/feminine). To use the term “gender” to suggest that one’s sex and gender do not align reflects a dangerous fluidity. As contrasted with a concept like “sex assigned at birth,” which reflects an “egalitarian concern” that the circumstances of one’s birth should not dictate “a person’s life course,” the concept of “biological sex,” used by opponents of transgender rights, furthers “an ideological project of transgender exclusion, not a scientific project of accurate classification.”50 Further, this conservative orthodoxy also entails that normative sexual orientation is heterosexual and the normative site for sexuality is heterosexual marriage open to procreation. All persons should fall on one side or the other of this binary.51