In recent years, as debates surrounding gender identity and youth mental health intensify, state governments across the country have increasingly intervened in the regulation of mental health treatment for minors who are experiencing gender dysphoria. One of these state governments is in Michigan, where there is a law that prohibits licensed mental health professionals from using non-affirming therapy practices, and as a result, these professionals must affirm a child’s beliefs about their gender and provide them with information about related medical interventions. These interventions include puberty blocking drugs, hormones, and surgeries.
Thus, the case of Catholic Charities v. Whitmer is introduced. Emily McJones, a Catholic therapist who includes her religious faith in her everyday counseling practice, works with children experiencing psychological distress related to their gender identity. Through her Catholic faith, McJones seeks to help her clients explore the underlying causes of their distress, rather than affirming their expressed gender identity or endorsing any medical procedures. Specifically, McJones emphasizes the Catholic belief that God created only two human biological sexes, male and female, in her counseling. However, the Michigan law prohibits McJones and other religious mental health professionals from offering this type of therapy, placing them in a position where they must either change their practice, misaligning it with their religious beliefs, or they must risk losing their professional licenses and paying fines amounting to $250,000.
In June 2024, McJones filed a lawsuit challenging the law alongside a Catholic Charities counseling ministry and other mental health professionals. The lead defendant in this case is Gretchen Whitmer, who is the current Governor of Michigan. The Whitmer case raises the constitutional question:
Does a Michigan law prohibiting Catholic mental health professionals from using non-gender affirming therapeutic practices in their counseling violate their First Amendment right to Free Exercise?
In an amicus brief filed in support of McJones, the neutrality of the Michigan law is questioned. While the law was created to protect the beliefs of all children questioning their gender identity, the brief notes how it allows for only one viewpoint regarding gender identity to be used within therapeutic settings, and that viewpoint directly defies Catholic professionals’ religious beliefs. Additionally, McJones believes she has a compelling interest as a Catholic mental health professional to prevent young, impressionable children from partaking in gender-affirming medical procedures that are both irreversible and potentially harmful. Specifically, while these procedures were once thought to be scientifically validated and safe, more recent research suggests that the support for them is “weaker” than originally thought, as critics refer to the ongoing debate about long-term outcomes and risks associated with these interventions, including a number of health problems ranging from sexual dysfunction to cancer. Overall, given the goals of McJones’s religious practice and the lack of neutrality of the Michigan law, supporters of this brief describe the law as an indirect, yet substantial burden on McJones’s free exercise of religion.
Contrastingly, supporters of the Michigan law argue that the state has a compelling interest in protecting minors from potentially coercive therapeutic practices. They uphold the neutrality of the Michigan law, referencing its application to all mental health professionals, not just religious ones. From this perspective, there is a further compelling state interest in providing children with mental health treatment that validates their experiences and affirms their gender identity. Supporters of the Michigan law refer to the potential psychological harms that children may face if therapists discourage their expressed gender identities. In all, the state seeks to prioritize the protection of the mental well-being of minors experiencing gender dysphoria over individual providers’ rights to practice in accordance with their religious beliefs.
A relevant Supreme Court case that may act as a precedent in Whitmer is Employment Division v. Smith (1990). In Smith, the court argued that neutral laws which are generally applicable do not violate the Free Exercise Clause, even if an individual’s compliance with them incidentally burdens their religious practice. This precedent suggests that if Michigan’s law is truly neutral in practice and applied equally to all mental health counselors, then it is constitutional. However, another case, NIFLA v. Becerra (2018), complicates this debate. In Becerra, the court struck down a law that required pregnancy centers to provide patients with abortion services information, arguing that the government cannot compel individuals to share messages that violate their religious beliefs. This precedent suggests that if Michigan’s law requires counselors to endorse practices which they fundamentally disagree with, then it is unconstitutional.
Therefore, based on the current arguments and the precedent in Becerra in particular, I would rule in favor of McJones and Catholic Charities in this case. I would argue that the Michigan law is not facially neutral to begin with, because it regulates counselors’ practice in a way that coerces them to affirm a particular viewpoint on gender identity. The viewpoint permissible by the law is in direct violation of Catholic mental health professionals’ religious beliefs. Thus, the Smith precedent is not applicable in Whitmer because the law itself is not neutrally applicable. Moreover, while I understand that the state does have an interest in protecting minors from psychological harm and providing them with proper care, I think that the compelling state interest in protecting these children from potential irreversible health effects is more crucial, given that gender-affirming care options are the subject of current ongoing medical and scientific debates regarding long-term health effects.
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