All Missourians should closely follow a First Amendment challenge to local ordinances in the western part of the state, especially because the U.S. Supreme Court is expected to decide a similar case soon. Both decisions could have an impact in Missouri and nationwide.
The action is in Kansas City and Jackson County, where officials think that having a conversation with a licensed counselor is the constitutional equivalent of having surgery. They say counseling isn’t speech—even when counseling only includes speaking. They instead compare counseling to “conduct”—like surgery—and then say they can regulate counseling without infringing on the freedom of speech.
They’re wrong. Conversations aren’t amputations. And speech isn’t surgery.
The city and county recently adopted ordinances—which they call “conversion therapy bans”—that forbid counselors from having voluntary conversations with a minor to help the minor be comfortable with his or her biological sex. Counselors can be penalized for each forbidden conversation. But the ordinances allow a contrary, government-favored viewpoint: Counselors can encourage minors questioning their identity to reject their biological sex.
The ordinances regulate Wyatt Bury’s and Pamela Eisenreich’s conversations with clients. Bury and Eisenreich are licensed counselors who treat their profession as an extension of their Christian faith. The counselors hope to speak with minors struggling with their gender identity to help them align that identity with their sex. But they can’t have these conversations without violating the ordinances.
So, the counselors, represented by Alliance Defending Freedom, filed a lawsuit in federal court challenging the ordinances as a violation of their First Amendment right to speak freely. Their case is currently on appeal. Kansas City and Jackson County recently filed a responsive brief, and the counselors replied on Feb. 26.
The city and county’s brief raises arguments that reject bedrock First Amendment principles—and that reveal the damage of permitting regulations like the ordinances at issue.
Take, for example, their argument that a counselor’s conversations with a client are “conduct” like the “medical practice” of a surgeon preparing for surgery. There’s an obvious problem with this comparison: Surgeons use scalpels and sutures; counselors rely on words and ideas. What Kansas City and Jackson County call a “medical practice” in counseling consists entirely of words—speech that the First Amendment protects.
The city and county pivot to the government’s authority to regulate “licensed professions.” But professionals don’t enter a Free Speech Dead Zone upon receiving a license. After all, Missouri licenses sign-language interpreters, but a law couldn’t ban them from translating a Democratic political rally just because they happen to be licensed. That logic would permit that censorship and more.
Worse, these ordinances deprive children of the many reported benefits that can come from the counseling Bury and Eisenreich hope to provide. Studies show that roughly 90% of children who struggle with gender issues before puberty regain comfort with their sex over time. The ordinances censor counselors from helping these children, ignore how minors may reconsider their decisions as they grow, and funnel minors down a one-way path towards costly and dangerous medicalized “transitions.”
To quote a character in a children’s book, “You can choose what you believe, but you can’t change what’s true.” The ordinances twist this concept. They prohibit counselors from helping minors who may change what they believe about their gender identity. And they distort the search for truth by foreclosing a widely held perspective on gender identity.
In October, the U.S. Supreme Court heard oral arguments in Chiles v. Salazar, a case that challenges a Colorado law similar to the ordinances. Many of the justices noted how Colorado punishes counselors for speaking words. One justice called Colorado’s law “blatant viewpoint discrimination.” They seemed skeptical that the law complied with the First Amendment.
Their skepticism is warranted. Governments can’t silence disfavored speech by relabeling it as “conduct.”
No Missouri city or county can censor counselors who refuse to follow the ideological demands of government officials.
Senior counsel for the Center for Conscience Initiatives at Alliance Defending Freedom
