Supreme Court Fails to Examine State Laws Barring Children From Counseling for Gender Dysphoria

Supreme Court Fails to Examine State Laws Barring Children From Counseling for Gender Dysphoria

Chole Cole, an adult who regrets her gender transition procedures as a minor, stands near her home in Northern California on Aug. 26, 2022. (John Fredricks/The Epoch Times)

James Breslo

James Breslo


Updated: 12/15/2023

California was the first state to make it illegal for counselors to help minors feel more comfortable in their biological sex. If a child is suffering from gender dysphoria, California law effectively says, “Too bad, embrace it.”
More than 20 states followed, including Washington state, a ban which was challenged by a counselor and taken all the way to the U.S. Supreme Court. But the court, which the left regularly trashes as a far-right tool of the Republican party, this week declined to review the law, letting stand the far-left Ninth Circuit Court of Appeals ruling approving it.
This same Supreme Court last year failed to overturn the Biden administration’s border policy which lets millions of illegal immigrants enter our country simply by asserting political asylum, even though they are no longer in the country from which they supposedly need the asylum. They are often handed a cell phone and assisted with travel in exchange for a promise to appear at a court hearing years down the road, at which time most will be determined not to qualify for asylum.
It was a 5–4 vote in which two Republican appointed justices (Justice Roberts and Justice Kavanaugh, the latter appointed by President Donald Trump), approved President Joe Biden’s ditching of Mr. Trump’s “remain in Mexico” policy. So much for the court being a far-right, MAGA court.
The Washington case was brought by family counselor Brian Tingley, who asserted that the law violated his First Amendment free speech rights since the law prohibited him from assisting minors who “want to become comfortable with their biological sex” through talk therapy. Mr. Tingley believes that a person’s sex is determined at birth and is, as he said, “a gift from God, integral to our very being.”
Under these laws, if your child is suffering from the condition of gender dysphoria, you are not permitted to take your child to treat it. You are only permitted to take your child for treatment to make the dysphoria worse, i.e. to help the child mentally transition to the opposite of his or her biological sex.
The Ninth Circuit first upheld the California law, astonishingly stating that “parents do not have a fundamental right to choose for children medical or mental health treatment that the state has deemed harmful.” What is harmful about a counselor helping a child resolve his or her gender dysphoria in order to avoid prescription drugs and surgeries? What’s harmful, is counseling to help convince children they were born in the wrong body, but that is what these states permit.
The Ninth Circuit subsequently approved the Washington law. Meanwhile, the Eleventh Circuit ruled that similar laws passed in some Florida cities are unconstitutional. Thus, a classic split of the circuit courts exists, leaving it to the Supreme Court to resolve, but this week it declined to do so.
The case is especially ripe for review, because while blue states are blocking such treatments, red states have been blocking the use of puberty blockers and sex change operations on minors. Naturally, the Biden administration says the latter laws are unconstitutional, while the former are just fine. In a letter issued to all state attorney generals last year, the Department of Justice (DOJ) asserted that minors have a constitutional right to what they call “gender affirming care” and that they will go after any state which attempts to limit those rights.
“Gender affirming care,” most are aware by now, is actually gender-changing care. It involves hormone treatments and surgeries so a man can become a “transwoman” or a woman to become a “transman.” Or, more appropriately, for a boy to become a “transgirl,” or girl to become a “transboy.”
In the letter the DOJ expressed concern about laws limiting minors access to such care, yet had no concern about the states which prevent minors from getting what would be actual “gender affirming care,” that being care designed to help children resolve their gender dysphoria in a way that allows them to accept and live comfortably within their biological sex.
The letter states, “All persons should be free to access the services, programs, and activities supported by federal financial assistance without fear that they might face unlawful discrimination for doing so.” Well said, but why does that not apply to counseling to resolve dysphoria?
Just three of the six Republican-appointed justices voted to take the case. In his dissent, Justice Clarence Thomas states the question at hand simply and precisely: “This petition asks us to consider whether Washington can censor counselors who help minors accept their biological sex.” In America, how could the answer be anything but, “Of course not”?
Since the case was brought by the counselor, not parents, it was framed as a free speech case. While it seems obvious that the law violates the free speech rights of the counselor, it is more concerning that it limits the freedom of parents to provide the treatment of their choice for their child without interference from the state.
These states’ position is based upon the phony premise that babies are born gay or transgender. LGBT activists have successfully highjacked the major medical associations, coercing them to embrace this view or face scorn and ridicule. These institutions include the American Academy of Pediatricians and the American Psychological Association. The states uniformly cite these institutions as justification for their bans.
But it simply is not true. There have been numerous identical twin studies that reveal that the majority of the time, when one twin is LGBT, the other is not. Same DNA, different outcome. Scientists have now mapped the entire human genome. No transgender gene has been found.
The most likely explanation is that it happens in early childhood due to some form of trauma, just like so many other conditions which manifest later in life. Gender dysphoria can be treated in the same way as other disorders through traditional psychological counseling. The left denigrates such counseling, calling it shaming or “praying away the gay.” But in truth, counseling to help patients overcome trauma is the most common form of counseling.
So why did the court refuse the case? Perhaps it’s going out of its way to demonstrate it is not a MAGA court. Regardless, the undeniable effect of these rulings has been thousands of lives lost due to fentanyl coming across our border, and thousands of children forced to struggle without help with their gender dysphoria, left only with the option of harmful drugs and surgeries.
James Breslo

James Breslo


James Breslo is a civil rights attorney and host of the “Hidden Truth Show” podcast on TuneIn. He was formerly a partner at the international law firm Seyfarth Shaw and public company president. He has appeared numerous times as a legal expert on Fox News and CNN.

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