Amicus Curiae Brief — Kaley Chiles, Petitioner v. Patty Salazar, in Her Official Capacity as Executive Director of the Colorado Department of Regulatory Agencies, et al.

Supreme Court briefJun 13, 2025

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No. 24-539

In the Supreme Court of the United States

KALEY CHILES,

Petitioner,

PATTY SALAZAR, in her official capacity as

Executive Director of the

Department of Regulatory Agencies, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF OF AMICUS CURIAE

LIBERTY COUNSEL

SUPPORTING PETITIONER

ANITA L. STAVER

HORATIO G. MIHET

DANIEL J. SCHMID

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

MATHEW D. STAVER

Counsel of Record

LIBERTY COUNSEL

109 Second Street NE

Washington, D.C. 20002

(202) 289-1776

court@lc.org

Counsel for Amicus

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... ii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF ARGUMENT ................................. 1

ARGUMENT ............................................................ 3

I. The So-Called “Expert Consensus” against

Counseling Bans is Rooted in Ideology, Not

Science. ................................................................ 3

A. “Queer theory,” the motivating ideology

behind counseling bans, originates from

Marxist critical thought. ............................... 4

B. Major medical and mental health

associations have adopted “queer theory” due

to intense activist pressure. ........................ 14

II. Colorado’s Justification for Its Counseling Ban

Is Ideological and Hostile to an Objective

Understanding of Sexuality. ............................ 30

A. The State’s scientific justification for

restricting speech is undermined by the bias

of its “experts” and their activist allies. ..... 31

B. Recent high-quality studies conclusively

undermine Colorado’s purported “expert

consensus.”................................................... 32

CONCLUSION ....................................................... 37

TABLE OF AUTHORITIES

Page

Cases

Chiles v. Salazar, 116 F.4th 1178

(10th Cir. 2024)............................................... 2, 31

Chiles v. Salazar, 2022 WL 17770837 (D. Colo. Dec.

19, 2022) .............................................................. 31

King v. Christie, 575 U.S. 996 (2015) ...................... 1

King v. Governor of the State of New Jersey,

767 F.3d 216 (3d Cir. 2014) .................................. 1

Otto v. City of Boca Raton,

981 F.3d 854 (11th Cir. 2020) .............................. 1

Pickup v. Brown,

740 F.3d 1208 (9th Cir. 2014) .............................. 1

Vazzo v. City of Tampa,

2023 WL 1466603 (11th Cir. Feb. 2, 2023) .......... 1

Statutes

Colo. Rev. Stat. Ann. § 12-245-224 .......................... 1

Other Authorities

“Reparative Therapy” Statement to be Refined,

Psychiatric News, June 17, 1994 ....................... 24

Am. Ass’n for Marriage & Family Therapy, Policy

on Reparative/Conversion Therapy (2009) ....... 26

Am. Psychiatric Ass’n, Diagnostic and Statistical

Manual of Mental Disorders (1952) ................... 16

Am. Psychiatric Ass’n, Diagnostic and Statistical

Manual of Mental Disorders (2d ed. 1968) ........ 16

Am. Psychiatric Ass’n, Diagnostic and Statistical

Manual of Mental Disorders

(3d ed. 1980).................................................. 20, 22

iii

Am. Psychiatric Ass’n, Gender Dysphoria

Diagnosis, Diagnostic and Statistical Manual of

Mental Disorders (5th ed. 2013)......................... 29

Am. Psychiatric Ass’n, Position Statement on

Psychiatric Treatment and Sexual Orientation

(1998) .................................................................. 26

Am. Psychiatric Ass’n, Position Statement on

Therapies Focused on Attempts to Change Sexual

Orientation (Reparative or Conversion Therapies)

(2000) .................................................................. 26

Am. Psychological Ass’n, Appropriate Therapeutic

Responses to Sexual Orientation (1997)............. 25

Am. Psychological Ass’n, Report of the American

Psychological Association Task Force on

Appropriate Therapeutic Responses to Sexual

Orientation (2009) ........................................ 27, 28

Am. Psychological Ass’n, Resolution on Appropriate

Affirmative Responses to Sexual Orientation

Distress and Change Efforts (2009) ................... 27

Am. Psychological Ass’n, Resolution on Sexual

Orientation Change Efforts (Feb. 2021)............. 30

AMA Alters Its Policy on Gays, Lesbians, Bos.

Globe, Dec. 22, 1994 ........................................... 25

Amelia Hansford, LGBTQ+ Experts Criticise Cass

Review in Open Letter to Health Secretary Wes

Streeting, PinkNews (Oct. 18, 2024) .................. 34

Antonio Gramsci, Selections from the Prison

Notebooks of Antonio Gramsci (Quintin Hoare &

Geoffrey Smith eds. & trans., 1971) .................... 5

Aurelia Armstrong, Michel Foucault: Feminism,

Internet Encyclopedia of Philosophy ............... 7, 8

B.S. Herrington, AMA Sees Homosexuals as UnderServed Group, Psychiatric News, Jan. 15, 1982 22

Benjamin Kaufman, Why NARTH? The American

Psychiatric Association’s Destructive and Blind

Pursuit of Political Correctness,

14 Regent U. L. Rev. 423 (2001–2002) .............. 24

Bob Cabaj, President’s Column, Ass’n of Gay &

Lesbian Psychiatrists (Feb. 1986)...................... 22

Brad Green, Herbert Marcuse and the Reality of

Sin, Christ Over All (Feb. 2025) .......................... 6

Camille Beredjick, DSN-V to Rename Gender

Identity Disorder ‘Gender Dysphoria,’ Advocate

(July 23, 2012) .................................................... 29

Carl Wittman, The Gay Manifesto (1971) ............. 10

Carolyn Pela & Philip Sutton, Sexual Attraction

Fluidity and Well-Being in Men: A Therapeutic

Outcome Study,

12 J. Human Sexuality 61 (2021) ...................... 31

Charles Silverstein, Some Events Leading to the

Deletion of Homosexuality as Mental Disorder by

the APA, Gay City News (Feb. 10, 2023) 16, 17, 18

Christopher Rosik, Sexual Attraction Fluidity

Exploration in Therapy (SAFE-T): Creating a

Clearer Impression of Professional Therapies

That Allow for Change, 8 J. Human Sexuality 7

(2017) .................................................................. 32

Clark A. Pomerleau, Field Concepts, Identities,

Movements, LGBTQ+ Studies:

An Open Textbook .............................................. 11

Clark A. Pomerleau, From Homophile Movement to

Gay Liberation, LGBTQ+ Studies: An Open

Textbook.......................................................... 9, 10

Critical Theory (Frankfurt School), Stanford

Encyclopedia of Philosophy (Dec. 12, 2023) ........ 4

David Halperin, Saint Foucault (1995) ................. 13

David W. Dunlap, A.M.A. Adopts New Policy on

Sexuality, N.Y. Times, Dec. 25, 1994 ................. 25

Dep’t Health & Human Servs., Treatment for

Pediatric Gender Dysophoria: Review of Evidence

and Best Practices (May 1, 2025) ................. 14, 35

Edith Gnanadass & Lisa Merriweather, To

Transgress or Not?: Critical Theory as a

Framework for Change, New Directions for Adult

& Continuing Educ. (Dec. 12, 2024) .................... 5

Herbert Marcuse, Eros and Civilization: A

Philosophical Inquiry into Freud (Beacon Press

1966) (1955) .......................................................... 6

Hilary Cass, Independent Review of Gender Identity

Services for Children and Young People: Final

Report (2024) ................................................ 33, 34

Jack Drescher, Gender Identity Diagnoses: History

and Controversies, Gender Dysphoria &

Disorders of Sex Development (May 2013) ....... 18

Jack Drescher, Out of DSM: Depathologizing

Homosexuality,

5 Behavioral Sci. 565 (Dec. 4, 2015) ............ 16, 19

Jerry Wiener, Choices, Psychiatric News, Nov. 18,

1994 ..................................................................... 24

Jonathan Butcher, “Gender,” Marxism, and the

Search for Power, Heritage Foundation (Feb. 9,

2023)...................................................................... 4

Joseph Nicolosi, Healing Homosexuality: Case

Stories of Reparative Therapy (1993)................. 24

Joseph Nicolosi, Reparative Therapy of Male

Homosexuality: A New Clinical Approach

(1991) .................................................................. 24

Joy S. Whitman et al., Exploring Ethical Issues

Related to Conversion or Reparative Therapy,

Counseling Today ............................................... 25

Judith Butler, Gender Trouble: Feminism and the

Subversion of Identity (Routledge 1999) (1990) 12

Kenneth J. Zucker, The DSM Diagnostic Criteria

for Gender Identity Disorder in Children,

Archives of Sexual Behav. (Oct. 2009) ............... 29

Larry Goldsmith, Recent AMA Report Claims

Homosexuality “Curable,” Gay Community News,

Jan. 23, 1982 ....................................................... 21

Letter from James P. Krajeski to Robert Spitzer,

Chairman, Work Grp. to Revise DSM-III (Apr. 9,

1986).................................................................... 22

Letter from Robert L. Spitzer, Chair, Work Grp. to

Revise DMS-III, to Terry S. Stein et al. (Dec. 30,

1985).................................................................... 22

Lisa Leef, Transgender Advocates Seek New

Diagnostic Terms, Associated Press (July 22,

2012).................................................................... 29

Marie-Amélie George, Expressive Ends:

Understanding Conversion Therapy Bans,

68 Ala. L. Rev. 793 (2017) .................................. 23

Martin Duberman, Gayness Becomes You, The

Nation (May 2, 2002) ............................................ 6

Memorandum from Bob Spitzer to Revisionists

(Dec. 11, 1985) .............................................. 22, 23

Michel Foucault, History of Sexuality, Volume I: An

Introduction (Pantheon Books 1978) (1976) .... 7, 8

Nat’l Comm. on Lesbian, Gay, and Bisexual Issues

& Nat’l Ass’n of Social Workers, “Reparative” and

“Conversion” Therapies for Lesbians and Gay

Men (2000) .......................................................... 25

Opposition Stalls AMA Report on Treating

Homosexuals, Psychiatric News, Aug. 7, 1981 .. 21

Peter Jenkins & Dwight Panozzo, “Ethical Care in

Secret”: Qualitative Data from an International

vii

Survey of Exploratory Therapists Working with

Gender-Question Clients, 50 J. Sex & Marital

Therapy 557 (2024)............................................. 26

Press Release, Am. Acad. of Pediatrics, AAP

Statement on HHS Report Treatment for

Pediatric Gender Dysphoria (May 1, 2025) ....... 36

Press Release, Am. Acad. of Pediatrics, Leading

Physician Groups Oppose Infringements on

Medical Care, Patient-Physician Relationship

(May 1, 2025) ...................................................... 36

Press Release, Am. Psychiatric Ass’n (Dec. 15,

1973).................................................................... 20

Richard Horton, Offline: We Must Engage in a War

of Position, 401 Lancet 1483 (2023) ................... 19

Ronald Bayer, Homosexuality and American

Psychiatry: The Politics of Diagnosis (Princeton

Univ. Press 1981) ............................................... 19

Sophie Noyé & Gianfranco Rebucini, Queer as

Materialism, Oxford Research Encyclopedia of

Politics (Jan. 22, 2021) ....................................... 11

The American Psychiatric Association Removes

Homosexuality from Its List of Mental Illnesses,

History.com (Jan. 25, 2025) ............................... 18

Thekla Morgenroth & Michelle Ryan, Gender

Trouble in Psychology: How Can Butler’s Work

Inform Experimental Social Psychologists’

Conceptualization of Gender?,

9 Frontiers in Psychology (July 2018) ............... 12

William H. Young, Modern vs. Western Thought:

Cultural Marxism and Gender Feminism, Nat’l

Assoc. of Scholars (July 19, 2017) ........................ 7

World Prof.’l Ass’n for Transgender Health,

WPATH and USPATH Comment on the Cass

Review (May 17, 2024)........................................ 34

INTEREST OF AMICUS CURIAE 1

Liberty Counsel is a nonprofit public interest legal

organization that advances religious freedom, and

the sanctity of human life, and family. As part of its

mission, Liberty Counsel filed the first legal challenges to several state and local laws that prohibit

counselors from helping minor clients who chose to

overcome unwanted same-sex attractions, behaviors, or gender confusion. See, e.g., Otto v. City of

Boca Raton, 981 F.3d 854 (11th Cir. 2020) (striking

down ordinances that banned talk therapy to help

clients overcome unwanted same-sex attractions, behaviors, and gender confusion); Vazzo v. City of

Tampa, No. 19-14387, 2023 WL 1466603 (11th Cir.

Feb. 2, 2023) (same); King v. Governor of the State of

New Jersey, 767 F.3d 216 (3d Cir. 2014), cert denied

sub nom., King v. Christie, 575 U.S. 996 (2015) (upholding a state law that banned talk therapy);

Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), cert

denied, 573 U.S. 945 (2014) (same). Having litigated

against these laws that restrict speech based solely

on viewpoint, Liberty Counsel has a vital interest in

ensuring that the First Amendment rights of licensed counselors are protected against viewpoint

and content-based restrictions on speech such as

Colo. Rev. Stat. Ann. § 12-245-224(1)(t)(V).

SUMMARY OF ARGUMENT

As Judge Hartz recognized in his dissent, this case

presents an important question for this Court’s

1 No counsel for any party authored this brief in whole or in

part, and no person other than Amicus or its counsel made a

monetary contribution intended to fund this brief’s preparation

or submission.

consideration: “whether a court should treat as ‘science’ the pronouncements of prestigious persons or

organizations that are not supported by sound evidence.” Chiles v. Salazar, 116 F.4th 1178, 1226 (10th

Cir. 2024) (Hartz, J., dissenting). The answer is no.

Colorado’s ban on exploratory talk therapy for minors—under the inaccurate and misleading guise of

prohibiting “conversion therapy”—a term explicitly

designed to denigrate the routine practice of the professionals who provide talk therapy on this issue—

rests not on settled science but on a compulsory consensus manufactured by politicized major medical

and mental health associations (MMHAs). Within

this viewpoint-discriminatory regime, activists masquerading as “experts” pressure lawmakers to silence the very speech that could most benefit vulnerable youth with gender confusion or unwanted samesex attractions.

Colorado’s defense leans heavily on the purported

authority of MMHAs, but the “expert” proclamations

of these associations were not founded on objective

evidence but were forged in the crucible of cultural

Marxism and queer theory. What began as a scholarly movement to deconstruct categories of male and

female has metastasized into an ideological agenda

branding any deviation from the “affirmation” model

as dangerous and unethical.

The chilling effect on talk therapy extends well beyond Colorado’s borders. Counselors who merely

wish to explore the roots of a client’s unwanted

same-sex attractions or gender-related distress—

whether trauma, comorbidities, or social pressures—now face professional ruin for declining to affirm a single, ideologically preferred narrative. The

Department of Health and Human Services (HHS)

and the United Kingdom’s Cass Review have both

documented the need to prioritize exploratory before

resorting to irreversible medical procedures. But instead of heeding these calls for more qualitative

comparative data, MMHAs have doubled down, insisting that only affirmation is safe and that talk

therapy must be silenced. But, affirmation only extends one way for these ideologues and is nonsensically inconsistent. MMHAs claim it is harmful to a

minor to counsel them to change their unwanted sexual preferences or behaviors, but demand those

same counselors affirm a minor seeking to change

their gender. That is not medicine. It is dogma.

The First Amendment prohibits States from dictating which therapeutic approaches may be spoken.

Colorado’s law restricts speech solely based on viewpoint. Such laws in the realm of counseling are unprecedented and go directly against the fundamental essence of counseling, namely that the client has

the right of self-determination to choose the counseling objective. Counselors are like a GPS. The client

chooses the direction of the counseling goal, and the

counselor helps chart the course to the intended destination. Colorado’s law violates the First Amendment.

ARGUMENT

The So-Called “Expert Consensus” against

Counseling Bans is Rooted in Ideology,

Not Science.

The recent “expert consensus” about sexual orientation and gender ideology did not emerge in a vacuum and is not founded upon science. Its central

claims—that sex and gender are fluid, socially constructed, and subject to constant reinterpretation—

are not the result of evidence-backed consensus or

empirical discovery. Instead, these assertions originate in a distinct ideological movement shaped by

Marxist thought and poststructuralist philosophy

called “queer theory.”

A. “Queer theory,” the motivating ideology

behind counseling bans, originates from

Marxist critical thought.

1. To understand how “gender identity” and “sexual orientation” have been redefined in medicine and

psychology by queer theory, we must begin with its

intellectual architects. Queer theory’s intellectual

framework can be traced to the Marxist concept

called “critical theory,” which emerged from the

Frankfurt School in the 1930s. Marxist scholars

such as Max Horkheimer, Theodor Adorno, and Herbert Marcuse sought to expand Marx’s critique beyond economics to deconstruct Western institutions

such as the traditional family, Christian sexual ethics, and natural law. See generally Jonathan

Butcher, “Gender,” Marxism, and the Search for

Power, Heritage Foundation (Feb. 9, 2023). 2 These

scholars integrated philosophy and social science to

analyze how power and oppression operate in everyday life “with the practical aim of furthering emancipation.” Critical Theory (Frankfurt School), Stanford Encyclopedia of Philosophy (Dec. 12, 2023). 3

2 Available at https://www.heritage.org/progressiv-

ism/com.mentary/gender-marxism-and-the-search-power,

3 Available at https://plato.stanford.edu/entries/critical-theory.

This form of Marxist critique directly inspired

“strands of critical theory,” including “feminist theory” and “queer theory.” Critical Theory, supra note

3. All these strands share same goal: emancipating

various oppressed groups “from structures of domination and modes of thinking (patriarchy, white supremacy, neocolonialism and Eurocentrism).” Id. By

the late 20th century, critical theorists across Marxism, feminism, and queer studies were united by a

desire for a theory to dismantle structures of power

by critiquing what keeps these structures in place.

See generally Edith Gnanadass & Lisa Merriweather, To Transgress or Not?: Critical Theory as a

Framework for Change, New Directions for Adult &

Continuing Educ. (Dec. 12, 2024). 4

Antonio Gramsci’s work further sets the stage for

modern gender ideology. Gramsci’s concept of “cultural hegemony”—the idea that a dominant group

maintains power by securing the consent of the oppressed through cultural norms rather than through

power—has been highly influential in gender and

sexuality studies. See Antonio Gramsci, Selections

from the Prison Notebooks of Antonio Gramsci

(Quintin Hoare & Geoffrey Smith eds. & trans.,

1971). Gramsci’s work provided a vocabulary to critique Christian sexual ethics while inspiring later

scholars to see gender itself as part of a patriarchal

superstructure that maintains oppressive social hierarchies.

Herbert Marcuse helped bridge Marxism with theories of sexuality. In Eros and Civilization, Marcuse

famously argued that Western capitalist society

4 Available at https://doi.org/10.1002/ace.20544.

represses sexuality, and unorthodox sexual activity

“express[es] rebellion against the subjugation of sexuality under the order of procreation, and against

the institutions which guarantee that order.” Herbert Marcuse, Eros and Civilization: A Philosophical

Inquiry into Freud 49 (Beacon Press 1966) (1955). As

one commentator observed, “the various sexual practices that ‘exclude’ or ‘prevent’ procreation are a way

of resisting, stopping, halting ‘paternal domination,’

or what in more recent decades would simply be

called ‘the patriarchy.’” Brad Green, Herbert Marcuse and the Reality of Sin, Christ Over All (Feb.

2025) (quoting Marcuse, Eros and Civilization at

49). 5 And “certainly the key institutions in mind

here must be the traditional family as well as traditional religious organizations (including the

church).” Id.

Some scholars hail Marcuse as a prophet who predicted that, by rebelling against procreative sexual

norms, homosexuals could become a “cutting-edge

social critique of vast importance.” Martin Duberman, Gayness Becomes You, The Nation (May 2,

2002). 6 Indeed, this idea is part of a broader movement known as “cultural Marxism,” which “sees

domination as repression of eros and the need for release of radical, socially transformative, sexual subjectivism.” William H. Young, Modern vs. Western

5 Available at https://christoverall.com/article/concise/her-

bert-marcuse-and-the-reality-of-sin.

6 Available at https://www.thenation.com/article/archive/gayness-becomes-you/.

Thought: Cultural Marxism and Gender Feminism,

Nat’l Assoc. of Scholars (July 19, 2017). 7

Any discussion of queer theory’s foundations must

highlight Michel Foucault, the French philosopherhistorian who advanced the concept that gender and

sexuality are social constructs. In Discipline and

Punish and The History of Sexuality, Foucault argued that sex and reproductive differences are not

biological but in fact products of specific historical

forces, especially negative, repressive forces. See

generally Aurelia Armstrong, Michel Foucault: Feminism, Internet Encyclopedia of Philosophy. 8 As one

scholar explained, “Foucault’s focus on discursive

power thoroughly lent itself to the growth of ‘identity

politics’ and the ‘new social movements’—groups

whose oppression *** clearly perpetuates itself

through many non-economic structures, such as language, family, media and civil institutions[.]” Simon

Thorpe, In Defence of Foucault: The Incessancy of Resistance, Critical Legal Thinking (Feb. 7, 2012). 9 In

other words, Foucault showed that power in society

does not just oppress from above; it actively creates

identities and categories of people as a means of control.

A pivotal example is Foucault’s analysis of sexuality in The History of Sexuality. See Michel Foucault,

7 Available at https://www.nas.org/blogs/article/mod-

ern_vs._western_thought_cultural_marxism_and_gender_feminism.

8 Available at https://iep.utm.edu/foucfem/ (last visited May

19, 2025).

9 Available at https://criticallegalthinking.com/2012/02/07/in-defence-of-foucault-the-incessancy-ofresistance.

History of Sexuality, Volume I: An Introduction 42–

44 (Pantheon Books 1978) (1976). 10 Foucault famously challenged the notion that sexual orientation is biological. In support, he documented how

medical and legal discourses in the late 19th century

invented the category of “the homosexual” as a distinct type of person. Before this period, Foucault

writes, sodomy was merely seen as a forbidden act,

but “the psychological, psychiatric, medical category

of homosexuality” now characterized it as “one of the

forms of sexuality when it was transposed from the

practice of sodomy to a kind of interior androgyny, a

hermaphrodism of the soul.” Id. at 43. This striking

passage illustrates Foucault’s core argument: By labeling and defining “homosexuals” (and an array of

other “perversions”), nineteenth-century authorities

made sexuality a target of scrutiny and control, a

process Foucault calls the “deployment” of sexuality.

Id. at 68. “Thus, Foucault suggests that in modern

society the behavior of individuals and groups is increasingly pervasively controlled through standards

of normality which are disseminated by a range of

assessing, diagnostic, prognostic and normative

knowledges such as criminology, medicine, psychology and psychiatry.” Armstrong, supra note 8. This

perspective became a cornerstone of feminism and

queer theory because it provided an intellectual justification to treat categories like “man,” “woman,”

“gay,” or “straight” not as fixed binaries but as fluid

labels created by oppressive structures of power.

10 Available at https://suplaney.wordpress.com/wp-con-

tent/uploads/2010/09/foucault-the-history-of-sexuality-volume-1.pdf (last visited May 19, 2025).

2. While the ideological foundations of the modern

“expert consensus” on gender and sexual orientation

lie in the Frankfurt School and poststructuralist

thinkers like Foucault, it was in the mid-twentieth

century that these abstract ideas manifested in the

real world. In the aftermath of World War II, Christian values still governed American public life. Soon,

however, anti-Christian communist sympathizers

coalesced into a movement that sought not only to

reframe sexual identity as a political category but to

redefine human nature itself.

The story begins with the Mattachine Society.

Founded in Los Angeles in 1951 by Harry Hay and

fellow former Communist Party members, and

drawing upon Marxist theory, the Society posited

that homosexuals were a repressed social class akin

to the proletariat, alienated by the post-war capitalist society and Christian culture. See Clark A.

Pomerleau, From Homophile Movement to Gay Liberation, LGBTQ+ Studies: An Open Textbook. 11

Drawing upon Gramsci, the Society viewed heterosexuality as a hegemonic norm that had imprisoned

homosexuals within a dominant ideology—the

Christian patriarchy. See id.

By the 1960s, groups like the Mattachine Society

coalesced into a national network. Inspired by the

broader civil rights movement, they lobbied, picketed, and published, the effect of which slowly

shaped the public consciousness into accepting the

homosexual cause as a civil-rights movement. See

11 Available at https://courses.lumenlearning.com/suny-

lgbtq-studies/chapter/from-homophile-movement-to-gay-liberation/ (last visited May 20, 2025).

Pomerleau, supra note 11. As it matured, the movement softened its public face to gain respectability

by appealing to sympathetic psychologists and

clergy. See id. But the ideological engine remained:

the push to delegitimize longstanding Christian

teachings on sexuality under the guise of civil rights.

This same ideological current animated the Gay

Liberation Front (GLF) following the Stonewall Riots in 1969. Triggered by a police raid on a Mafiarun bar, the riots were hailed as a political awakening for homosexuals. See Pomerleau, supra note 11.

But what followed was more than a call for equal

rights; it was a revolution in social mores. GLF leaders explicitly opposed capitalism and embraced the

“liberationist” ethos of Marxist critical theorists. See

id. In his “Gay Manifesto,” Carl Wittman condemned

“Amerika” as an exploitative and repressive society

in which “Straight (also white, English, male, capitalist) thinking” is imposed on homosexuals, women,

and racial minorities. Carl Wittman, The Gay Manifesto 4 (1971). 12 To counter that system, Wittman

proclaimed that homosexuals must reject monogamy, traditional family structures, and male-female

complementarity. See id.

The gay-liberation movement soon infiltrated academia. By the mid-1970s, scholars like Jonathan

Ned Katz and Joan Nestle were institutionalizing

“Gay and Lesbian Studies” as a formal discipline.

See generally Clark A. Pomerleau, Field Concepts,

Identities, Movements, LGBTQ+ Studies: An Open

12 Available at https://www.againstequality.org/files/refu-

gees_from_amerika_a_gay_manifesto_1969.pdf (last visited

May 20, 2025).

Textbook. 13 Their goal? To re-narrate American history through the lens of sexuality by upending the

traditional categories of male and female and challenging Biblical anthropology. Cf. id. (“LGBTQ historians first compensated for heterosexism and cissexism by finding LGBTQ people to reinsert into historical narratives, then determined how LGBTQ

people contributed to history. As they analyzed primary sources, they slowly revised historical narratives through testing generalizations and periodization against evidence by and about LGBTQ people.”).

At each stage, the movement was marked by intentional rejection of Christian sexual ethics and a desire to replace them with a secular—and revolutionary—framework.

By the 1980s and 1990s, the fusion of Marxist critique, radical subjectivism, and sexual politics had

become an institutionalized force. See generally Sophie Noyé & Gianfranco Rebucini, Queer as Materialism, Oxford Research Encyclopedia of Politics

(Jan. 22, 2021) (discussing the “recompositions” of

“Marxist, queer, and feminist” that “took place in activist and academic arenas”). That, in turn, paved

the way for queer theory, which would go even further: absurdly denying that “man” or “woman” were

even rooted in objective and biological reality.

3. Emerging in the late twentieth century as a fusion of critical theory, feminist thought, and postmodern philosophy, queer theory seeks to deconstruct and ultimately dismantle the historical

13 Available at https://courses.lumenlearning.com/suny-

lgbtq-studies/chapter/field-concepts-identities-movements/

(last visited May 20, 2025).

understanding of human sexuality. The term “queer

theory” was first coined in the early 1990s, but the

ideas that animate it had long circulated in academic circles. In her seminal work, Gender Trouble,

renowned feminist Judith Butler argued that gender

is “performative,” “manufactured through a sustained set of acts, posited through the gendered stylization of the body.” See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, xv

(Routledge 1999) (1990). 14 See also generally Thekla

Morgenroth & Michelle Ryan, Gender Trouble in

Psychology: How Can Butler’s Work Inform Experimental Social Psychologists’ Conceptualization of

Gender?, 9 Frontiers in Psychology 1 (July 2018)

(discussing Butler’s argument “that gender, rather

than being an essential quality following from biological sex, or an inherent identity, is an act which

grows out of, reinforces, and is reinforced by, societal

norms and creates the illusion of binary sex”).

Writing in the Foucauldian tradition, Butler argued that “language itself produce[s] the fiction construction of ‘sex’ that supports these various regimes

of power,” Gender Trouble at xxx, and that “the prior

taboo against homosexuality” was a “prohibition[]

that produce[s] identity along the culturally intelligible grids of an idealized and compulsory heterosexuality,” id. at 172. Butler’s claim boils down to this:

Being a “man” or a “woman” is not rooted in biology

or objective reality; it is an elaborate charade, reinforced by society to uphold heterosexual norms.

14 Available at https://selforganizedseminar.word-

press.com/wp-content/uploads/2011/07/butler-gender_trouble.pdf (last visited May 19, 2025).

What Christian civilization has long understood as

sex—a biological reality, fixed and knowable—is, in

her view, simply a tool used by the powerful to keep

the oppressed in line.

This rejection of biological sex as an objective truth

is not a tangential aspect of queer theory. It is the

core.

Unlike gay identity, which, though deliberately

proclaimed in an act of affirmation, is nonetheless rooted in the positive fact of homosexual object-choice, queer identity need not be grounded

in any positive truth or in any stable reality. As

the very word implies, ‘queer’ does not name

some natural kind or refer to some determinate

object; it acquires its meaning from its oppositional relation to the norm. Queer is by definition whatever is at odds with the normal, the legitimate, the dominant. There is nothing in particular to which it necessarily refers. It is an identity without an essence.

David Halperin, Saint Foucault 62 (1995). 15 In other

words, queer theory positions itself against the normalizing tendencies of mainstream discourses on

gender and sexuality, and its chief ambition is to disrupt the binary thinking that undergirds them. The

effects of this radical subjectivism have descended

from the ivory tower to astoundingly shape public

discourse, policy debates, and eventually professional medical standards, and has been deployed as

15 Available at https://archive.org/embed/saintfou-

caulttow0000halp (last visited May 20, 2025).

a blunt instrument of suppression for dissenting

viewpoints.

B. Major medical and mental health

associations have adopted “queer theory”

due to intense activist pressure.

The intellectual foundation of “queer theory” may

have been laid by Marxist and poststructuralist theorists, but its influence in medicine and psychology

came about through homosexual-rights groups.

Through decades of organized lobbying, political agitation, and internal pressure campaigns, activists

systematically redefined the professional consensus

on sexuality and gender. As a consequence, major

medical and mental health associations (MMHAs)

gradually embraced the tenets of queer theory: that

sex and gender are social constructs and that sexual

identity is inherently subjective. What followed was

an ideological trojan horse, in which activists pressured these associations to accept esoteric theories

as settled science while silencing dissent through

professional “consensus.”

1. In America’s disjointed healthcare landscape,

MMHAs wield outsized influence. They serve as

gatekeepers of professional orthodoxy, namely by issuing treatment guidelines, shaping public policy,

disseminating peer-reviewed research, and representing the collective voice of their fields. See generally Dep’t Health & Human Servs., Treatment for Pediatric Gender Dysophoria: Review of Evidence and

Best Practices 201–208 (May 1, 2025) (HHS

Report). 16 Through journals, conferences, and policy

statements, MMHAs educate practitioners and cultivate a unified culture within their respective professions. See id. Most associations restrict full membership to those actively practicing in clinical or

mental-health fields, and they typically enforce ethical codes that carry sanctions for violations. See id.

MMHAs derive much of their credibility from the

perception that they uphold rigorous scientific

standards. See HHS Report, supra note 16, at 201.

They don’t. “MMHAs can inadvertently become echo

chambers where dissent is suppressed, confirmation

biases go unchecked, and professional deference is

exploited.” Id. Because “support for a particular

viewpoint is concentrated within a small, motivated

subgroup, while opposing views are diffuse, less attentive, and less organized,” the public “may inaccurately perceive the wider membership of individual

MMHAs as uniformly aligned with the professed position of their professional association.” Id. In other

words, narrow perspectives in MMHAs often dominate not because they are based in sound evidence

but because their proponents are loud and organized. Any opposition is swiftly suppressed and censored to maintain the illusion of consensus.

2. Within this backdrop, the historical evidence of

ideological creep in MMHAs as to human sexuality

is easy to trace. In the late 1960s and early 1970s,

homosexual-rights activists waged an intense campaign to challenge the classification of homosexuality as a mental disorder. When the American

16 Available at https://opa.hhs.gov/sites/default/files/2025-

05/gender-dysphoria-report.pdf.

Psychiatric Association first published its Diagnostic and Statistical Manual (DSM-I) in 1952, it classified “homosexuality” as a “sociopathic personality

disturbance.” Am. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders (1952). And

In the 1968 DSM-II, homosexuality was reclassified

as a “sexual deviation.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders

(2d ed. 1968).

Homosexual activists “forcefully rejected the

pathological model as a major contributor to the

stigma associated with homosexuality.” Jack

Drescher, Out of DSM: Depathologizing Homosexuality, 5 Behavioral Sci. 565, 570 (Dec. 4, 2015). 17

That being so, protesters from the Gay Activists Alliance and other newly formed groups staged aggressive disruptions at APA meetings and conventions,

targeting psychiatrists who advocated treatment for

unwanted same-sex attraction. See generally

Charles Silverstein, Some Events Leading to the Deletion of Homosexuality as Mental Disorder by the

APA, Gay City News (Feb. 10, 2023). 18

One of the pivotal events occurred at the 1972 convention of the Association for the Advancement of

Behavior Therapy (AABT), held at the Hilton Hotel

in New York. Activists from the Gay Activists Alliance organized a planned disruption of a lecture by

a psychiatrist about the use of aversion therapy on

homosexual patients. Silverstein, supra note 18.

17 Available at https://pmc.ncbi.nlm.nih.gov/arti-

cles/PMC4695779/pdf/behavsci-05-00565.pdf.

18 Available at https://gaycitynews.com/some-events-deletion-homosexuality-mental-disorder-apa.

With cooperation from sympathetic AABT officials,

the activists seized the podium after a brief presentation and “chastised the professional audience for

their attempts to convert homosexuals into heterosexuals instead of helping gay people to come out.”

Id.

The activists succeeded in capturing the attention

of Robert Spitzer, a psychiatrist and member of the

American Psychiatric Association’s (APA) Nomenclature Committee, which oversaw revisions to the

DSM. The AABT encounter prompted Spitzer to invite the activists to present their case to the APA’s

committee. See Silverstein, supra note 18. The activists formed an ad hoc working group, produced a report (selectively citing psychological studies), and

presented their arguments at a February 1973 meeting. They contended that the classification of homosexuality as a mental disorder rested on moral rather than scientific grounds and accused the psychiatric profession of perpetuating discrimination. See

id.

Although some committee members remained

skeptical (particularly those from psychoanalytic

schools of thought), the activists’ appeal to social justice, paired with the fear of further public confrontation, led the committee to recommend removing homosexuality from the DSM. See id. Consequently, on

December 15, 1973, the APA’s Board of Trustees reversed its century-old position and removed homosexuality from the DSM, declaring that homosexuality was neither a mental illness nor a sickness. See

generally The American Psychiatric Association

Removes Homosexuality from Its List of Mental Illnesses, History.com (Jan. 25, 2025). 19

The APA Board’s decision, however, did not end

the controversy. Opponents led by Dr. Charles

Socarides forced a referendum of the APA’s full

membership. See Silverstein, supra note 18. “Gay

activists knew that a referendum of the APA membership might overturn the nomenclature change.”

Id. That being so, they mounted an aggressive campaign and financed outreach supporting the change

(without disclosing the source of funding). See id. Ultimately, fifty-eight percent of voting APA members

upheld the Board’s decision. See id.

The result was a watershed moment in American

psychiatry. “Those who accepted scientiﬁc authority

on such matters gradually came to accept the APA’s

position, and a new cultural perspective emerged,”

which “led to a historically unprecedented social acceptance of gay men and women” and “has culminated in the contemporary social and policy debates

about gay civil rights and marriage equality.” Jack

Drescher, Gender Identity Diagnoses: History and

Controversies, Gender Dysphoria & Disorders of Sex

Development (May 2013). 20 As one historian later

documented, the decision was shaped as much by political activism and cultural pressure as by scientific

evidence.

See

generally

Ronald

Bayer,

19 Available at https://www.history.com/this-day-in-his-

tory/december-15/the-american-psychiatric-association-removes-homosexuality-from-its-list-of-mental-illnesses.

20 Available at https://www.researchgate.net/publication/265591982_Gender_Identity_Diagnoses_History_and_Controversies.

Homosexuality and American Psychiatry: The Politics of Diagnosis (Princeton Univ. Press 1981). 21

The vote marked a turning point for MMHAs:

From that moment forward, medical and mentalhealth associations would institutionalize the ideologies advanced by activist coalitions rather than

rely solely on objective clinical data. Cf. Bayer, supra

note 21, at 3 (“The entire process . . . seemed to violate the most basic expectations about how questions

of science should be resolved.” (emphasis added)).

Those with “[r]igid gender beliefs” were suddenly accused of belonging to “fundamentalist, religious communities where any information or alternative explanations that might challenge implicit and explicit

assumptions are unwelcome.” Drescher, Out of

DSM, supra note 20, at 567. In other words, those

who accepted the new “science” were enlightened,

and those who did not were backwards and ignorant.

Underpinning these shifts is an unmistakable ideological current. Leaders in health care increasingly

frame their positions on sexuality and gender in

terms of social justice, not empirical data. A striking

illustration is when The Lancet—the world’s most

prestigious medical journal—published an editorial

in 2023 openly invoking Antonio Gramsci’s theory of

cultural hegemony to analyze the modern “culture

wars.” See Richard Horton, Offline: We Must Engage

in a War of Position, 401 Lancet 1483 (2023). 22 The

author cited Gramsci’s concept of a “war of position”

21 Available at https://archive.org/details/homosexual-

ityame00bayerich/mode/2up.

22 Available at https://www.thelancet.com/action/showPdf?pii=S0140-6736%2823%2900900-5.

as a call to action for those “who wish to advance a

more hopeful, compassionate, and liberal vision of

the future” to fight back against “populists” on issues related to “race, sex, and gender.” Id. The explicit invocation of Gramsci’s framework by the

world’s leading medical journal illustrates the extent to which cultural hegemony has permeated scientific discourse. It also reveals how the “consensus”

in science, medicine, and policy are shaped by efforts

to steer the public consciousness in a particular ideological direction rather than by objective inquiry.

3. Even after the 1973 APA vote to remove homosexuality from the DSM, the classification of samesex attraction as a pathology did not immediately

disappear from clinical practice. Nor did the APA rescind its recognition of talk therapy as an acceptable

intervention for those distressed by their same-sex

attractions. Instead, the APA added a new diagnostic category, “sexual orientation disturbance,” for individuals seeking to eliminate or reduce unwanted

same-sex attractions. See Press Release, Am. Psychiatric Ass’n (Dec. 15, 1973). 23 Four years later, the

APA Task Force on Nomenclature renamed the category “Ego-Dystonic Homosexuality,” applicable to

those with “a desire to acquire or increase heterosexual arousal, so that heterosexual relationships can

be initiated or maintained[.]” Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 281 (3d ed. 1980). Although the APA noted the

ongoing debate over the effectiveness of such

23 On file with Carl A. Kroch Library, Cornell University, Na-

tional Gay and Lesbian Task Force Records, Collection No.

7301, Box 164, Folder 39.

interventions, its recognition of this diagnosis implicitly authorized psychiatrists to pursue therapeutic strategies aimed at reducing or eliminating a client’s unwanted same-sex attractions.

During the 1980s, talk therapy remained within

the medical mainstream, and many professionals

continued to encourage it for patients experiencing

same-sex attraction. Notably, Judd Marmor, one of

the psychiatrists who had championed the 1973 declassification of homosexuality, still maintained that

“reorientation” efforts were appropriate for the

“small minority of gay people who want that.” Lawrence Mass, Dr. Judd Marmor on “Homosexual Behavior,” Advocate, Apr. 17, 1980, at 22.

Indeed, the American Medical Association (AMA)

issued a report in 1981 emphasizing that same-sex

attraction was changeable. See Larry Goldsmith,

Recent AMA Report Claims Homosexuality “Curable,” Gay Community News, Jan. 23, 1982. 24 The

AMA rejected what it described as the “myth” promoted by homosexual advocacy groups that sexual

orientation was immutable. The report cited studies

purporting to show that so-called “conversion” efforts had a 30–70% success rate and encouraged

physicians to ask their homosexual patients

whether they were “content” with their orientation.

See id.; see also Opposition Stalls AMA Report on

Treating Homosexuals, Psychiatric News, Aug. 7,

1981, at 32. The report advised doctors to refer patients who expressed dissatisfaction with their sexual orientation to psychiatrists for treatment. See

24 On file with the National Gay and Lesbian Task Force Rec-

ords, Box 164, Folder 40.

B.S. Herrington, AMA Sees Homosexuals as UnderServed Group, Psychiatric News, Jan. 15, 1982, at 9,

20.

Six years later, the APA took its first formal step

to repudiate so-called talk therapy by removing the

Ego-Dystonic Homosexuality diagnosis from DSMIII-R. See Am. Psychiatric Ass’n, Diagnostic and

Statistical Manual of Mental Disorders 279–96 (3d

ed., rev. 1987). That change was not initially expected. The APA’s Advisory Committee originally

recommended retaining the category, assuming it

was still clinically appropriate. The Board of Trustees voted accordingly. See Letter from Robert L.

Spitzer, Chair, Work Grp. to Revise DMS-III, to

Terry S. Stein et al. (Dec. 30, 1985). 25

But their decision triggered backlash from members of the APA’s Committee on Gay, Lesbian, and

Bisexual Issues (GLB Committee), who insisted on

an opportunity to argue for the diagnosis’s removal.

See, e.g., Letter from James P. Krajeski to Robert

Spitzer, Chairman, Work Grp. to Revise DSM-III

(Apr. 9, 1986); 26 Memorandum from Bob Spitzer to

Revisionists (Dec. 11, 1985); 27 Bob Cabaj, President’s Column, Ass’n of Gay & Lesbian Psychiatrists

(Feb. 1986). 28 Dr. Robert Spitzer, chair of the DSMOn file with DSM-III & DSM-III-R Collection, Box 4,

Folder labeled Ego-Dystonic Homosexuality.

26 On file with DSM-III & DSM-III-R Collection, Box 4,

Folder labeled Ego-Dystonic Homosexuality.

27 On file with DSM-III & DSM-III-R Collection, Box labeled

Administration, Folder labeled Gen. Corr. 1986.

28 On file with the Charles E. Young Research Library,

UCLA, Judd Marmor Papers, Collection No. 1795, Box 54,

Folder 3.

III-R revision process, dismissed these objections at

first, stating that the issue was not scientific but “a

value judgment” as to whether it was “helpful to

have a specific category that legitimizes treatment

efforts directed at homosexuals (usually bisexual)

who wish to develop a heterosexual arousal program.” Memorandum from Bob Spitzer, supra note

27. In Spitzer’s view, an Ego-Dystonic Homosexuality diagnosis only applied to a subset of homosexuals

seeking to reduce or eliminate their unwanted sexual attractions. See id.

Nevertheless, vociferous pressure from the GLB

Committee forced the Board to reverse course; and

six months later, the APA officially removed EgoDystonic Homosexuality from the DSM. Not only

that, as a result, the word “homosexuality” was removed from the DSM. See Marie-Amélie George, Expressive Ends: Understanding Conversion Therapy

Bans, 68 Ala. L. Rev. 793, 804 (2017). This reversal

marked a decisive shift in the APA’s posture, signaling its political views that homosexuality was a normal variation in human sexuality and efforts to reorient unwanted sexual attractions would no longer

be endorsed as part of standard psychiatric care.

Still, significant resistance remained. Disturbed

by the APA’s retreat from supporting individuals

distressed by their same-sex attractions, mental

health professionals began to organize. In 1992,

Charles Socarides, along with Joseph Nicolosi and

Benjamin Kaufman, founded the National Association for Research and Therapy of Homosexuality

(NARTH). See Benjamin Kaufman, Why NARTH?

The American Psychiatric Association’s Destructive

and Blind Pursuit of Political Correctness, 14 Regent

U. L. Rev. 423, 424 (2001–2002). NARTH served as

a platform for clinicians and researchers who believed that the APA capitulated to gay-rights activists without a sound basis in evidence. See generally

Joseph Nicolosi, Healing Homosexuality: Case Stories of Reparative Therapy 214 (1993); Joseph

Nicolosi, Reparative Therapy of Male Homosexuality: A New Clinical Approach 9–12 (1991). Believing

that unwanted same-sex attractions could, and

sometimes should, be reoriented, NARTH promoted

a psychoanalytic framework known as “reparative

therapy,” which held that homosexuality was the result of arrested psychosexual development. See

Kaufman, 14 Regent U. L. Rev. at 426.

During the 1990s and early 2000s, medical and

psychological associations, which were becoming increasingly politicized by left-leaning advocates, began issuing statements explicitly condemning reparative therapy. Initially, these statements were

measured, emphasizing patient autonomy while noting the absence of rigorous evidence supporting reorientation interventions. For example, in 1993, the

APA rejected a proposed resolution declaring reparative therapy “improper and unethical,” labeling

such a characterization “extreme and unjustified.”

See Jerry Wiener, Choices, Psychiatric News, Nov.

18, 1994, at 3; “Reparative Therapy” Statement to be

Refined, Psychiatric News, June 17, 1994, at 6, 24.

But the tide began to turn.

In 1994, the American Medical Association (AMA)

was the first to change course. Although it had endorsed reorientation therapy since 1981, the AMA

attributed the psychological distress of individuals

with unwanted same-sex attractions primarily to

social stigma rather than orientation. See AMA Alters Its Policy on Gays, Lesbians, Bos. Globe, Dec. 22,

1994; David W. Dunlap, A.M.A. Adopts New Policy

on Sexuality, N.Y. Times, Dec. 25, 1994, at 11.

Other MMHAs followed suit. Pressured by its prohomosexual members, outraged by NARTH’s increasing influence, the American Psychological Association issued a statement in 1997 declaring that

“the ethics, efficacy, benefits, and potential for

harm” of such therapies were “under extensive debate.” Am. Psychological Ass’n, Appropriate Therapeutic Responses to Sexual Orientation (1997). In

1999, the American Counseling Association denounced “the promotion of reparative therapy as a

cure for individuals who are homosexual.” Joy S.

Whitman et al., Exploring Ethical Issues Related to

Conversion or Reparative Therapy, Counseling Today. 29 In 2000, the National Association of Social

Workers’ National Committee on Lesbian, Gay, and

Bisexual Issues declared that reorientation therapies “cannot and will not change sexual orientation.”

Nat’l Comm. on Lesbian, Gay, and Bisexual Issues

& Nat’l Ass’n of Social Workers, “Reparative” and

“Conversion” Therapies for Lesbians and Gay Men

(2000). The American Association for Marriage and

Family Therapy adopted a policy in 2009 declaring

that there was “no basis” for so-called “conversion

29 Available at https://ctarchive.counseling.org/2006/05/ex-

ploring-ethical-issues-related-to-conversion-or-reparativetherapy/ (last visited May 30, 2025).

therapy.” Am. Ass’n for Marriage & Family Therapy,

Policy on Reparative/Conversion Therapy (2009). 30

The tide ultimately turned with the APA. In 1998,

it adopted a formal policy opposing any psychiatric

treatment aimed at changing sexual orientation. See

Am. Psychiatric Ass’n, Position Statement on Psychiatric Treatment and Sexual Orientation (1998). The

APA was more forceful in 2000, issuing a statement

urging ethical practitioners to refrain from reorientation efforts given a purported absence of scientific

research supporting such interventions. See Am.

Psychiatric Ass’n, Position Statement on Therapies

Focused on Attempts to Change Sexual Orientation

(Reparative or Conversion Therapies) (2000). 31

In 2007, the American Psychological Association

established the Task Force on Appropriate Therapeutic Responses to Sexual Orientation to review

and evaluate the scientific literature on reorientation therapy. Led by pro-LGBT advocates, and without distinguishing between long-renounced “aversion” treatments with simple exploratory talk therapy, 32 the Task Force found that none of the

30 Available at

https://www.aamft.org/AAMFT/About_AAMFT/Position_Statements.aspx#anchor2

31 Available at https://library.louisville.edu/ld.php?content_id=40820571.

32 It is critical to distinguish between the politically-motivated “conversion therapy” — which is falsely associated with

long-renounced aversive procedures and “shock treatments” —

and exploratory talk therapy for clients experiencing unwanted

same-sex attractions or gender-related distress. Conflating

these distinct practices is both misleading and harmful. See

Peter Jenkins & Dwight Panozzo, Ethical Care in Secret:

published studies met its methodological standards

on efficacy or safety. Am. Psychological Ass’n, Report

of the American Psychological Association Task

Force on Appropriate Therapeutic Responses to Sexual Orientation 1–2 (2009) (Task Force Report). 33

In its report issued two years later, the Task Force

concluded that sexual orientation change efforts

(SOCE) is “unlikely to be successful and involve[s]

some risk of harm” and urged the organization to issue a new resolution opposing it. Task Force Report,

supra note 33, at v, 7. As a result, the American Psychological Association adopted a formal statement

that identified the practice as ineffectual and called

on mental health professionals to stop misrepresenting SOCE as a viable means of helping clients with

unwanted same-sex attractions. Am. Psychological

Ass’n, Resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change

Efforts (2009).

By 2009, every MMHA denounced therapeutic interventions to help individuals with unwanted

Qualitative Data from an International Survey of Exploratory

Therapists Working with Gender-Questioning Clients, 50 J. Sex

& Marital Therapy 557, 559 (2024). Activist groups weaponized

the term “conversion therapy” as a catch-all phrase to smear

and silence any therapeutic interventions not automatically affirming same-sex attraction or gender identity, regardless of

the client’s unique circumstances and desires. But exploratory

therapy—rooted in self-determination—seeks not to impose an

identity but to help children understand their distress before

making irreversible decisions. After all, “[t]herapy, by definition, is based on a voluntary rather than a coercive professional

relationship and requires fully informed client consent.” Id.

33 Available at https://www.apa.org/pi/lgbt/resources/

therapeutic-response.pdf.

same-sex attractions or behaviors. Remarkably, of

the fifty-five peer-reviewed studies the Task Force

relied on, forty-seven were from 1960 to 1981, while

only eight were from 1999 to 2004. See APA Task

Force Report, supra note 33, at 7, Appendix B. That

means that 85% of the studies were based during a

time when SOCE included long-denounced aversive

methods such as electric shocks, chemically induced

nausea, and other punitive techniques. Yet by the

early 1980s, even reparative therapists loudly denounced such techniques.

In the aftermath of the Task Force Report, organizations such as NARTH now operated on the margins, while medical institutions publicly advocated

against therapeutic efforts to help individuals with

unwanted same-sex attractions. The result was a

profound realignment in MMHAs, where ideological

campaigns and sustained lobbying by subgroups can

change the “medical consensus” with outdated “evidence” or no evidence at all.

4. The transgender movement followed a similar

trajectory. As recently as the 1990s, gender identity

disorders were included in major diagnostic manuals. In 1980, the American Psychiatric Association

(APA) introduced two new diagnostic categories in

the third edition of its Diagnostic and Statistical

Manual of Mental Disorders (DSM-III): “Transsexualism” for adolescents and adults, and “Gender Identity Disorder of Childhood” for prepubescent children. See Kenneth J. Zucker, The DSM Diagnostic

Criteria for Gender Identity Disorder in Children,

Archives of Sexual Behav. (Oct. 2009). 34 The criteria

were formulated by “a panel of experts” but, curiously, “were not subject to any formal field trials for

the purpose of establishing diagnostic reliability or

validity.” Id.

Over time, transgender activists, drawing explicitly from earlier gay-liberation strategies, pressed

for the declassification of these conditions as mental

illnesses. See Lisa Leef, Transgender Advocates Seek

New Diagnostic Terms, Associated Press (July 22,

2012). 35 The APA responded in 2013 by removing

“Gender Identity Disorder” from DSM-5 and replacing it with the more value-neutral “Gender Dysphoria.” See Am. Psychiatric Ass’n, Gender Dysphoria

Diagnosis, Diagnostic and Statistical Manual of

Mental Disorders (5th ed. 2013). Transgender advocacy groups declared this change a victory after decades of lobbying. See Camille Beredjick, DSN-V to

Rename Gender Identity Disorder ‘Gender Dysphoria,’ Advocate (July 23, 2012). 36

In August 2021, the American Psychological Association (APA) adopted a sweeping resolution condemning “sexual orientation” and “gender identity”

change efforts, characterizing them as inherently

harmful and scientifically unsupported. See Am.

34 Available at https://www.researchgate.net/publica-

tion/38023058_The_DSM_Diagnostic_Criteria_for_Gender_Identity_Disorder_in_Children.

35 Available at

https://www.mprnews.org/story/2012/07/22/transgender-advocates-seek-new-diagnostic-terms (last visited May 23, 2025).

36 Available at https://www.psychiatry.org/psychiatrists/diversity/education/transgender-and-gender-nonconforming-patients/gender-dysphoria-diagnosis (last visited May 23, 2025).

Psychological Ass’n, Resolution on Sexual Orientation Change Efforts (Feb. 2021). 37 Lumping in “aversive conditioning” and “exorcism” with “psychotherapeutic treatment,” the resolution declared that no

evidence-based therapeutic intervention exists that

can reliably help a person with unwanted same-sex

attraction or gender confusion, and warned of potential psychological harm. See id. at 1. The resolution

not only reaffirmed earlier policy positions but expanded them, urging lawmakers to ban talk therapy

for minors and calling on mental health professionals to avoid any intervention premised on the assumption that heterosexuality is preferable. See id.

at 9. Notably, the APA failed to engage seriously

with dissenting perspectives—including those

grounded in religious identity—thereby disregarding a core principle of patient-centered care: respect

for a client’s values and goals.

II.

Colorado’s Justification for Its Counseling

Ban Is Ideological and Hostile to an

Objective Understanding of Sexuality.

The Tenth Circuit agreed with the district court’s

finding that “the record ‘amply shows that the

[MCTL] comports with the prevailing medical consensus regarding conversion therapy and sexual orientation change efforts,’” and that “Colorado considered the body of medical evidence regarding conversion therapy and sexual orientation change efforts—

and their harms * * * and made the decision to protect minors from ineffective and harmful therapeutic

modalities.” Chiles v. Salazar, 116 F.4th 1178, 1226

37 Available at https://www.apa.org/about/policy/resolution-

sexual-orientation-change-efforts.pdf.

(10th Cir. 2024) (quoting Chiles v. Salazar, 2022 WL

17770837, at *9 & n.10 (D. Colo. Dec. 19, 2022)). But

the district court’s conclusions are not drawn from

dispassionate review of evidence but from an “expert

consensus” rooted in queer theory and fueled by sexual-identity politics.

A. The State’s scientific justification for

restricting speech is undermined by the

bias of its “experts” and their activist

allies.

In support of its viewpoint discriminatory prohibition, Colorado relied on the “expert” testimony of Judith Glassgold, a licensed psychologist who specializes in LGBT issues. See Decl. of Judith Glassgold,

D. Ct. Doc. 45-1 (Nov. 3, 2022) (Glassgold Decl.). But

Glassgold’s declaration reads more like a pro-“affirmation” manifesto than an objective assessment of

the science behind talk therapy for children with unwanted sexual attractions or gender confusion. For

example, Glassgold references empirical studies, but

her selection and framing of the evidence reveal a

determined pattern: bolster the prevailing ideological narrative, exclude dissenting voices, and present

the result as settled science. She emphasizes studies

that describe harm from so-called “conversion”

methods while brushing aside or disregarding research that reports beneficial outcomes for talk therapy. Compare Glassgold Decl. at 13 (“Systematic reviews and decades of empirical evidence have not

found evidence of the effectiveness of CT change efforts[.]”), with Carolyn Pela & Philip Sutton, Sexual

Attraction Fluidity and Well-Being in Men: A Therapeutic Outcome Study, 12 J. Human Sexuality 61–86

(2021) (showing through a “rigorous research

design” that “persons with unwanted same-sex attraction may reasonably expect to benefit from—and

not to be harmed by—their participation in [therapy]”).

In one telling example, Glassgold rejects all positive SOCE findings as “anecdotal” or methodologically flawed, Glassgold Decl. at 13, but she does not

apply the same level of skepticism to the anecdotal

studies she embraces. That is not objectivity—it is

selective validation. “While it is reasonable to conclude that more research is needed to better comprehend the extent of therapy-assisted sexual attraction fluidity, denying the potential for such a therapeutic process would seem to be much more a matter

of ideological compulsion than it is one of theoretical

or scientific implausibility.” Christopher Rosik, Sexual Attraction Fluidity Exploration in Therapy

(SAFE-T): Creating a Clearer Impression of Professional Therapies That Allow for Change, 8 J. Human

Sexuality 7 (2017). 38

B. Recent high-quality studies conclusively

undermine Colorado’s purported “expert

consensus.”

Colorado defends its speech restriction by invoking

the supposed consensus of MMHAs. But that politically-driven consensus (lacing any evidentiary foundation) is rapidly unraveling. In the last few years,

a growing body of rigorous evidence and clinical observation has cast serious doubt on the safety, efficacy, and ethical foundations for puberty blockers

38 Available at https://www.journalofhumansexual-

ity.com/_files/ugd/ec16e9_a799c779cc3e4e0780e31adc1865807

6.pdf.

(PBs), cross-sex hormones (CSHs), and surgical intervention for gender-distressed youth. These findings come not from fringe voices, but from well-respected clinicians, researchers, and national health

authorities across the developed world.

1. The Cass Review. The most comprehensive of

these emerging studies is the Cass Review, commissioned by NHS England and released in April 2024.

Hilary Cass, Independent Review of Gender Identity

Services for Children and Young People: Final Report (2024) (the Cass Review). 39 The report fundamentally challenges the foundational assumptions

behind pediatric gender medicine (PGM) by calling

for a decisive departure from the “gender clinic”

model of care in favor of psychotherapy.

Conducted over four years under the leadership of

Dr. Hilary Cass, a respected pediatrician and former

president of the Royal College of Paediatrics and

Child Health, the Cass Review brought together expert analysis from the University of York and the

National Institute for Health and Care Excellence

(NICE). Recognizing the “increasingly toxic, ideological and polari[z]ed public debate” over gender identity, Cass Review, supra note 39, at 20, its conclusions were stark: the evidence supporting PBs,

CSHs, and surgical intervention for gender-distressed youth lacked long-term outcome data and

were often exaggerated or misrepresented, see id. at

13.

39 Available at https://webarchive.nation-

alarchives.gov.uk/ukgwa/20250310144409mp_/https://cass.independent-review.uk/wp-content/uploads/2024/04/CassReview_Final.pdf.

A key recommendation of the Cass Review was to

abandon the ideologically “transition” model in favor

of talk therapy as a first-line intervention. See Cass

Review, supra note 39, at 31. This shift reflects a

growing international trend: guidelines from Finland and Sweden “recommend that psychotherapy—

not hormones or surgeries—should be the standard

of care for youth with GD, and that any use of hormones should be limited to nationally overseen research or exceptional circumstances.” Id. at 142. The

reality is that gender-dysphoric youth frequently

suffer from other complex psychological conditions—

anxiety, depression, self-harm, and neurodevelopmental disorders such as autism—that often predate

their gender dysphoria. See id. at 90–94. That being

so, the report noted that most common rationale for

“transition” procedures—that such interventions reduce suicidality—has no sound evidentiary basis.

See id. at 33, 66.

LGBT advocacy groups swiftly attacked the Cass

Review, accusing it of “degrading” “trans

healthcare.” See Amelia Hansford, LGBTQ+ Experts

Criticise Cass Review in Open Letter to Health Secretary Wes Streeting, PinkNews (Oct. 18, 2024); 40 see

also World Prof.’l Ass’n for Transgender Health,

WPATH and USPATH Comment on the Cass Review

(May 17, 2024) (accusing the Cass Review of

“depriv[ing] young trans and gender diverse people

of the high-quality care they deserve and caus[ing]

immense distress and harm to both young patients

40 Available at

https://www.thepinknews.com/2024/10/18/open-letter-transactual-cass-review.

and their families”). 41 Such reactions only reinforce

the central concern presented in this case: ideological agendas too often override objective evidence and

patient autonomy.

2. The HHS Report. Colorado’s justification for

its therapy ban further rings hollow under the recent report issued by the U.S. Department of Health

and Human Services. See HHS Report, supra note

16. In its 2024 report, Weighing the Benefits and

Risks: A Review of the Evidence on Pediatric Gender

Medicine, HHS directly contradicts Colorado’s categorical prohibition of talk therapy for gender-dysphoric youth. The report noted that “the evidence

supporting hormonal and surgical interventions is of

low or very low certainty,” id. at 219, and that “[n]o

independent association between gender dysphoria

and suicidality has been found, and there is no evidence that pediatric medical transition reduces the

incidence of suicide.” Id. at 16.

Relevant here, the report also noted that,

“[r]egarding the potential harms of psychotherapy

for adolescents with [gender dysphoria], a systematic review of the evidence found no evidence of negative or adverse effects in any of the studies examined.” HHS Report, supra note 16, at 219. That being

so, HHS recommended “psychotherapy” as “a noninvasive alternative to endocrine and surgical interventions for the treatment of pediatric gender dysphoria.” Id. at 16. This is no small repudiation. It

undercuts Colorado’s statutory regime, which not

41 Available at https://wpath.org/wp-content/up-

loads/2024/11/17.05.24-Response-Cass-Review-FINAL-withed-note.pdf

only permits but mandates one ideological approach—affirmation and medical transition—while

prohibiting the very therapy HHS now recommends

as a viable alternative to irreversible medical procedures.

As with the Cass Review, the MMHAs swiftly denounced the HHS Report, declaring that that it

“misrepresents the current medical consensus and

fails to reflect the realities of pediatric care.” Press

Release, Am. Acad. of Pediatrics, AAP Statement on

HHS Report Treatment for Pediatric Gender Dysphoria (May 1, 2025) (emphasis added). 42 That same

day, the American Academy of Pediatrics, joined by

the American Psychiatric Association and other

MMHAs, issued a joint statement condemning “infringements on medical care” and declaring that

medical standards of care should be “free from political interference.” Press Release, Am. Acad. of Pediatrics, Leading Physician Groups Oppose Infringements on Medical Care, Patient-Physician Relationship (May 1, 2025). 43

What is clear: MMHAs’ claimed monopoly over the

“expert consensus” is unscientific, unsupported by

evidence, and aimed at suppressing viewpoints. The

government is prohibited from adopting such ersatz

consensus as its rationale for unconstitutional restrictions on speech. Counselors are like a GPS. The

client choses the counseling goal and the counselor

42 Available at https://www.aap.org/en/news-room/news-re-

leases/aap/2025/aap-statement-on-hhs-report-treatment-forpediatric-gender-dysphoria.

43 Available at https://www.aap.org/en/news-room/news-releases/aap/2025/leading-physician-groups-oppose-infringements-on-medical-care-patient-physician-relationship.

helps the client navigate the traffic to achieve the

client’s objective. Like GPS, the client, not the counselor, is in control of the intended destination. But

Colorado’s law frustrates the client by always misdirecting the client 180 degrees from the client’s objective. Colorado’s law not only violates the First

Amendment because it is viewpoint-based, but it is

also harmful to a person’s mental health and wellbeing. This Court should liberate counselors and clients and strike down Colorado’s dangerous law.

CONCLUSION

The decision below should be reversed.

Respectfully submitted.

ANITA L. STAVER

HORATIO G. MIHET

DANIEL J. SCHMID

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

MATHEW D. STAVER

Counsel of Record

LIBERTY COUNSEL

109 Second Street NE

Washington, D.C. 20002

(202) 289-1776

court@lc.org

Counsel for Amicus

June 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.