SCREAMING IN SILENCE
JURISPRUDENCE

With One Damning Question, Ketanji Brown Jackson Defined the Supreme Court’s New Term

BY MARK JOSEPH STERN
OCT 07, 20254:51 PM


Justice Ketanji Brown Jackson wasted no time. Photo illustration by Slate. Photos by Kevin Dietsch/Getty Images, Chip Somodevilla/Getty Images, and https://www.supremecourt.gov.

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Midway through Tuesday’s arguments in Chiles v. Salazar, Justice Ketanji Brown Jackson asked a question that stripped away the veneer of constitutional principle from the Supreme Court’s latest blatant culture war. Last term, she noted, the court upheld Tennessee’s ban on gender-affirming care for minors. Now, in Chiles, the same court seemed poised to strike down Colorado’s ban on “conversion therapy” for minors. Both regulations “work in basically the same way,” she noted, prohibiting treatments designed to change a child’s gender expression. The difference is that Tennessee aims to erase transgender identity, while Colorado seeks to affirm it. “I’m just, from a very broad perspective, concerned,” Jackson said, “about making sure that we have equivalence with respect to these things.” Does the Constitution really take sides in this battle, blessing states that discriminate against transgender youth while condemning those that protect them?

As interpreted by this Supreme Court, the short answer is yes: The Constitution does little to protect LGBTQ+ rights and much to subvert them. There is little doubt that the Republican-appointed justices will use Chiles to weaken or destroy protections against conversion therapy for minors. In the process, they may insist that they are simply following neutral principles wherever they lead and will safeguard pro-LGBTQ+ speech in the future too. Don’t believe it. As this case lays bare, the court’s feints at evenhanded justice merely obscure its weaponization of constitutional liberties in service of the religious right’s agenda.

Chiles is a test case engineered to invalidate laws that ban licensed counselors from attempting to change a minor patient’s sexual orientation or gender identity. About half the states have enacted these laws, often on a bipartisan basis with strong public support. Extensive evidence shows that it is impossible to forcibly alter a young person’s gender or sexuality, and dangerous to try. For that reason, every major medical group in the United States endorses prohibitions against conversion therapy. Conservative Christian counselors, however, have long opposed these laws, arguing that they impermissibly censor protected speech. (Critically, they do not apply to family members, religious figures, “life coaches,” or anyone besides licensed therapists.) The Alliance Defending Freedom, a far-right law firm, manufactured Chiles so the Supreme Court would have an opportunity to rule that therapists have a First Amendment right to attempt to “convert” LGBTQ+ children. After Donald Trump returned to the White House, his Justice Department joined the case on the side of the plaintiff, a Christian therapist named Kaley Chiles.

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If the Supreme Court delivers a victory for Kaley Chiles, does anyone seriously believe that it will then rush to strike down these restrictions on trans-affirming speech too? The Republican-appointed justices’ invocations of “neutrality” tend to run in only one direction, imposing conservative policies in the guise of balance and restraint. When the majority hands down its opinion in this case, don’t just take it on its own terms; look at the pattern of decisions that it extends and entrenches. If there is any principle at play here, it is the rule that we may govern ourselves only when we do in obedience to this court’s reactionary convictions.