Document Type
Article
Publication
Denver Law Review
Year
2026
Citation Information
Scott Skinner-Thompson, Gender Therapy False Equivalency, 103 Denver L. Rev. 299 (2026), available at https://scholar.law.colorado.edu/faculty-articles/2082.
Abstract
One critical dispute surrounding the rights of LGBTQ people and societal recognition of their existence is the legal debate regarding very different types of gender therapy. On the one hand, several states have banned the provision of gender-affirming medical care to transgender youth, positing that it is a dangerous form of mutilation. A separate set of states has banned the practice of so-called gay or gender conversion therapy that seeks to transform youth away from their queer identities, concluding that it is a form of abuse. Both sets of laws have been challenged in courts with the Supreme Court recently delineating constitutional standards applicable to each, with subsequent litigation and societal debate to follow. The Supreme Court concluded that laws banning certain kinds of gender-affirming care for minors do not violate the Equal Protection Clause to the extent they do not draw lines on the basis of sex or transgender identity. Conversely, the Supreme Court just ruled that as applied to talk therapy, Colorado’s ban on conversion therapy for minors must survive strict scrutiny under the First Amendment. But with litigation and legislative evaluation surrounding these laws set to continue, it would be a mistake to conflate each category of law and the practices they seek to regulate.
As this Article explains as its central thesis, the differences between these two types of laws exist along two important dimensions, one centered on harm and the other centered on science. In terms of harm, allowing gender-affirming care reduces harm because individuals are permitted to choose their care and explore their identity (subject to medical ethics and parental constraints), whereas in the case of conversion, they undergo practices designed to forcibly change or quash their sexual identity, with resulting psychological, emotional, and sometimes physical trauma. In terms of science, states have grounded their prohibitions of conversion practices on studies indicating that gender identity and sexual orientation are not susceptible to forced erasure. In contrast, bans on gender-affirming care ignore the diversity of our biological world and the scientific reality of gender diversity. By appreciating these two dimensions during a time of legislative and judicial skepticism toward medical expertise and evidence-based research, the false equivalency between these two approaches to gender therapy can be brought into sharper relief, guiding lawmaking and constitutional evaluation of the different regulatory regimes, while preserving the role of science as an important (albeit occasionally imperfect) knowledge institution supporting our constitutional democracy.
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