California Dems, LGBTQ groups spark legal, religious liberty concerns on fight against SCOTUS ruling

Democratic lawmakers and LGBTQ groups in California are already looking for workarounds to the Supreme Court’s recent ruling prohibiting the state from censoring private counselor-client conversations about gender identity for minors, indicating the legal fight may be far from over.

In March, the high court sided with Kaley Chiles, a Christian and professional counselor in Colorado, who challenged her state’s ban on so-called “conversion therapy” – which barred attempts to change a client’s gender identity while explicitly permitting a counselor to encourage gender transition. Chiles argued the law violated her First Amendment rights, as it was legal to push a child toward a new gender identity but illegal to help a minor embrace their biological sex. The Supreme Court agreed, sending the case back to the lower courts under a stricter standard of legal review.

Chiles’ win at the Supreme Court has since cast doubt on similar “conversion therapy” bans in more than 20 states, including California’s Senate Bill 1172, enacted more than a decade ago and now newly vulnerable.

California seeks a fallback plan

As California’s existing law is in legal doubt, efforts are already underway to get around the Supreme Court’s ruling by introducing new legislation that advocacy groups hope will hold up in court. Democratic California state Sen. Scott Wiener introduced SB 934, which would make it easier to sue counselors for “psychological injury or illness” resulting from gender identity change efforts, even years later. 

The bill would expand the window that patients can bring malpractice suits against mental health providers, allowing minors to bring claims until the age of 40, and adults to bring claims for up to a decade after a counseling session. Under the bill, counselors who hold private conversations with clients to help them align with their faith or personal values – such as clients who want to reduce same-sex attraction or embrace their biological sex – could face legal threats for years.

“This is very high-stakes,” Wiener said, per the San Francisco Chronicle, noting that the Colorado court case has forced him to “think as creatively as possible” for a workaround. After hearing oral arguments in the Chiles case, he said it was clear to him and LGBTQ advocacy groups that California’s current law was “very much at risk” and that he was looking to make the new bill “more defensible in court.”

“With conversion therapy bans facing legal threats from right-wing extremists and a hostile Supreme Court, we must create new strategies to protect LGBTQ youth,” he said in a statement. “SB 934 provides these safeguards.”

New bill faces opposition, legal concerns

Alliance Defending Freedom, which represented Chiles at the Supreme Court, wrote to the California State Legislature to express concerns about the constitutionality of SB 934.

“If enacted, SB 934 will violate the Free Speech Clause rights of mental health providers who provide talk therapy to patients grappling with their gender or unwanted same-sex attraction,” ADF wrote, in a letter shared with The Lion. 

Citing the Chiles case, it noted that SB 934 would be “subject to strict scrutiny, as it regulates speech based on its ‘communicative content’ and is thus ‘presumptively unconstitutional.’”

The bill has also drawn opposition from the California Family Council, which said SB 934 “is not about protecting vulnerable individuals; it is about silencing certain viewpoints, punishing dissent, and denying Californians the right to pursue counseling aligned with their deeply held beliefs, values, and faith.”

The measure would target even “voluntary, client-directed” counseling if a patient who was struggling with same-sex attraction or gender dysphoria wanted to align their sexual preferences and gender identity with their faith or personal values, the group noted. 

The bill essentially tells patients that they may only receive counseling that “affirms one predetermined outcome” and that they “may not seek professional help to live according to your faith or conviction,” the CFC argued.

If passed, CFC said the bill will set a clear precedent that the “state, not the individual, not the family, not the church, will decide what kind of transformational help can be offered by professional mental health providers.”