Counselors in Michigan can now provide patients struggling with gender dysphoria talk therapy that affirms their biological sex after a Dec. 17 decision from the Sixth Circuit Court of Appeals.
The decision in Catholic Charities of Jackson Lenawee and Hillsdale Counties v. Whitmer blocked Michigan law HB 4616, which categorized “compassionate counseling,” a form of counseling that seeks to help gender-confused clients feel comfortable with their biological sex as “conversion therapy,” which is illegal.
“The state of Michigan is telling counselors that they can say one thing, but they can’t say the other thing. That’s viewpoint discrimination, and that’s unconstitutional under the First Amendment,” William Bloomfield, an attorney for the Catholic Diocese of Lansing which includes Hillsdale, told The Collegian. “And so the court issued a very broad ruling that is extremely protective of anyone throughout the whole Sixth Circuit.”
The Becket Fund for Religious Liberty worked with the Diocese of Lansing, which includes Hillsdale, to represent a group of Catholic therapists based in the diocese. The plaintiffs argued that HB 4616 infringed upon free speech.
“We hold, therefore, that HB 4616, is subject to the strictest of scrutiny under the First Amendment as a content- and viewpoint-discriminatory restriction under speech. Indeed, as a viewpoint-based restriction on speech, under the Supreme Court’s precedents, HB 4616 might be unconstitutional, per se,” the ruling said.
The decision marks the first time a federal appeals court has blocked a statewide ban on counselors’ free speech, and the court’s argument that the law was discriminatory and violated free speech could be relevant to Chiles v. Salazar, a conversion therapy case currently before the U.S. Supreme Court. The disputed Michigan law, HB 4616, which went into effect February 2024, defines “conversion therapy” as “any practice or treatment by a mental health professional that seeks to change an individual’s sexual orientation or gender identity.” This includes non-aversive methods such as compassionate counseling.
“Most of us, when we think of ‘conversion therapy,’ we think of aversive techniques. You think of people getting shocked, or we think of abuse. Nobody wants that,” said Emily McJones, a Catholic therapist who, with Catholic Charities, filed the lawsuit against the state of Michigan. “Even though the client is coming to me and saying, ‘I want to live in accord with my faith. I’m uncomfortable with this, and I want to work through this, and I want to get to the roots,’ I am not allowed to help somebody feel more comfortable in his or her own skin. I’m not allowed to help someone to live chastely or work through trauma.”
McJones founded her practice, Little Flower Counseling, in 2020 in part because she disagreed with her former employer’s policies on transgenderism. While her practice does not focus on sex and sexuality, she said she has provided compassionate counseling to adult clients with same-sex attraction and gender dysphoria and discussed such issues with children.
“A lot of people have sought me out specifically because I’m Catholic, because they don’t feel like somebody who isn’t would be able to respect their beliefs,” McJones said. “And I know so many parents who are terrified to take their kids to counseling, who know that their kids need counseling, need help, but they’re afraid that if they take the kids for counseling, they’re going to come out more unhealthy than they went in. And unfortunately, sometimes there’s something to that.”
McJones said she seeks to help clients talk through and understand the root cause and traumas underlying gender confusion and same-sex attraction while upholding religious beliefs about sexuality.
The time for the State of Michigan to ask for a rehearing has passed, but it can still appeal to the Supreme Court no later than 90 days after the Sixth Circuit’s ruling.
“It’s likely that this will eventually resolve in a permanent injunction, or the state will just settle the case and reach an agreement with the plaintiffs, and then that would have precedential value as well, so that really, any therapist acting in the state of Michigan has very strong protection right now from this ruling to practice talk therapy and they can, they can say what they want, and they’re protected by the First Amendment of the Constitution,” Bloomfield said.
The Supreme Court heard oral arguments for Chiles v. Salazar in October. The case will determine whether the state of Colorado infringes upon the First Amendment rights of counselors seeking to treat gender dysphoria and sexuality concerns.
“I am hopeful that, no later than June, the U.S. Supreme Court will reach a similar decision, and it may even incorporate some of the arguments that the Sixth Circuit put forward,” Bloomfield said.
