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.
6 comments:
After reading about Catholic Charities v. Whitmer, I believe that the Michigan law is neutral and does not violate the Free Exercise Clause. In my view, the law is neutral and generally applicable as it applies to all mental health providers, regardless of their religious beliefs, which aligns with the ruling in Smith. I also think that the state interest in this matter is compelling because the mental health of children questioning their gender identity will be directly affected by the methods used by their mental health providers. Therefore, the state should be able to regulate this.
While I empathize that McJones feels as though her first amendment rights have been violated, I think that Michigan's state law is neutrally applicable given that it applies to all mental health professionals. The law might have an indirect burden on mental health professionals that have a religious belief against non-traditional gender expression, but it is not targeting that particular religious belief. Further, there might be an important distinction between the Becerra case and this case. In Becerra, the case was about a law that mandated certain speech while this case is about a law that prohibited certain speech. While the government cannot force anyone to say something that goes against their religious belief, they can limit free speech with a compelling state interest.
I do agree with both perspectives presented in the comments-To be more specific, I think that I was crafting my opinion/prediction of how the court would rule from a more general standpoint, and for me I thought that perhaps a more free speech relevant decision would be made in favor of McJones. However, I should clarify that if this decision were to be based solely on free exercise, then I could align myself more closely with the commenters' opinions.
I find myself disagreeing with your analysis, especially given that the compelling state interest of protecting minors from coercive therapy practices. The Michigan law is facially neutrally and generally applicable, but since has the unintentional effect of limiting speech. And I believe that it being unintentional should be the deciding factor of whether or not it's a large burden. Therapists and psychologists need medical/therapeutic standards, and I believe there has been ongoing substantial evidence to the benefits of affirming rather than denying gender care. The psychology field is consistently being updated, and with that, practices need to be updated as well to ensure maximum efficiency and patient support. While McJones' speech is important, I believe her duty to adhere to a generally applicable standard is neutral, as it doesn't directly target or mention religion.
If the Constitutional question is whether or not Michigan's law requiring gender affirming therapeutic practices burden free exercise of religion under the First Amendment, I agree with your analysis. Considering some of the other disagreements, I understand the complexity of this issue. However, the state's compelling interest is protecting minors from coercive therapy practices. Which therapy practices are then considered coercive, religious ones? Or non-religious ones? To different people, there are different answers. I appreciate Emilia's comment discussing targeting a certain religious belief, and this Michigan laws' lack thereof. In my opinion, if Mcjones's religious belief is a gender affirming approach, then this law is a violation of free exercise of that religious belief in the matter of its constitutionality.
I agree that this law violates the Free Exercise Clause because it forces counselors to affirm a viewpoint that may directly conflict with their religious beliefs. As you highlight, NIFLA v. Becerra is particularly relevant here, since the Court made clear that the government cannot force individuals to communicate messages that violate their convictions. That principle seems directly implicated if therapists are required to affirm gender identities in a way that contradicts their faith.
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