Wisconsin Supreme Court to consider GOP blockade of conversion therapy ban

A years-long dispute over conversion therapy in Wisconsin could soon be resolved by the Wisconsin Supreme Court.

Justices will consider whether a Republican-controlled legislative committee overstepped their constitutional bounds by using procedural maneuvers to block a rule that would have banned the controversial practice in Wisconsin years ago.

It’s the latest chapter in a political battle between GOP lawmakers and Democratic Gov. Tony Evers now before the Supreme Court and its liberal majority.

On Jan. 16, justices will hear oral arguments for and against a lawsuit filed by Evers that claims the Legislature’s Joint Committee for Review of Administrative Rules has usurped his executive powers.

Court previously delayed ruling on conversion therapy ban

The upcoming oral arguments stem from a lawsuit Evers filed against Republican heads of powerful legislative committees more than a year ago.

In July, a notably unified state Supreme Court ruled 6-1 that Wisconsin’s budget-writing Joint Finance Committee overstepped its authority by blocking funds for land conservation purchases that had already been approved by the full Legislature. 

This time, the court will consider a third prong of Evers’ lawsuit, which claims the Legislature’s Joint Committee for Review of Administrative Rules, or JCRAR, violated the Constitution’s Separation of Powers clause by temporarily blocking a conversion therapy ban included in new ethics rules for social workers and other licensed therapists since 2020.

In a brief filed with the court, Democratic Attorney General Josh Kaul argues JCRAR’s actions “unconstitutionally intrude” on Evers’ executive power.

“When the Legislature enacts a law that empowers the executive branch to act, it cannot thereafter block such executive action through a legislative committee,” Kaul said. 

Attorneys representing the Legislature have argued the powers of the rules review committee, which dates back to 1965, have been upheld by the Supreme Court multiple times.

“Although the Court noted that a full legislative process was necessary to ‘make permanent a rule suspension,’ such ‘full involvement of both houses of the legislature and the governor’ was not needed for JCRAR’s temporary rule suspension at issue,” said the Legislature’s brief.

Wisconsin’s conversion therapy ban: An on again, off again history

The Wisconsin Department of Safety and Professional Services, or DSPS, first proposed the conversion therapy ban in 2019 as part of a revised code of conduct for social workers, marriage counselors and family therapists. 

In June 2020, Republicans who control the rules committee objected to the new ethics standards without holding a public hearing or inviting DSPS to testify.

State Sen. Steve Nass, R-Whitewater, said the conversion therapy ban amounted to legislative policy changes that should come from elected lawmakers rather than a state agency.

The committee introduced legislation to permanently block the ban six months later, but Republicans never scheduled any votes on the bills in the state Assembly or Senate. Without action by lawmakers, the conversion therapy ban was left in limbo until the bills officially died at the end of the legislative session. The new code of conduct then went into effect until Dec. 1, 2022. 

Weeks later, in January 2023, Republicans on the JCRAR blocked the conversion therapy ban again. That triggered the same process: bills were introduced that never got a vote and the revised ethics rules were stalled until going back into effect a second time in April 2024.  

Professional counseling organizations condemn conversion therapy, religious groups call it free speech

The practice known as conversion therapy has been condemned by more than a dozen professional medical organizations including the American Medical Association, American Academy of Family Physicians, American Academy of Nursing, American Counseling Association and the National Association of Social Workers, or NASW. 

Marc Herstand is the executive director of Wisconsin’s chapter of NASW and has been pushing for the state code of conduct for counselors to explicitly ban conversion therapy for the past seven years. 

“This conversion therapy is an extremely harmful fake therapy,” Herstand told WPR. “It’s completely unprofessional. It’s child abuse. It can be torture at times, and it provides a major mental health and suicide risk for recipients. So it’s a terrible, horrible, harmful practice that no social worker should ever engage in under any circumstances.” 

He said Republican lawmakers never passed their legislation to permanently block the conversion therapy ban because they knew Evers would veto the bills, “and then, as soon as he vetoed, it would go into effect.” 

Daniel Degner is the president of Wisconsin Family Action, whose mission is “to advance Judeo-Christian principles and values” in the state. In an email, he said the organization opposes unethical counseling conduct and abuse, but the DSPS conversion therapy ban doesn’t address that issue. Rather, Degner said, the ethics rules are an example of the state “hypocritically coercing mental health professionals into what kinds of private conversations they can have with clients.”

“Licensed counselors should not be restricted in their free speech, including discussing biological realities that are in the best interest of patients,” Degner said. “Likewise, counselors should be free to uphold their biblical convictions on sexuality without facing religious discrimination and possible loss of their license.”

Courts have recently upheld conversion therapy bans

The argument that conversion therapy bans violate therapists’ First Amendment free speech rights has been tested in court.

In 2022, the 9th U.S. Circuit Court of Appeals ruled that a Washington State law banning licensed counselors from practicing conversion therapy on minors did not violate the First Amendment. That decision was appealed, but in 2023, the U.S. Supreme Court decided not to hear the case. Conservative Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented, writing that they would have heard the case. 

This August, the 10th U.S. Circuit Court of Appeals ruled that Colorado’s ban on conversion therapy for minors is constitutional because it regulates professional conduct, not speech. Writing for the majority, Judge Veronica Rossman said the law doesn’t prohibit mental health professionals from discussing what their views on conversion therapy are or who can legally provide that form of treatment.

“It only bars a mental health professional from engaging in the practice herself,” Rossman said.

A similar federal lawsuit challenging Michigan’s 2023 conversion therapy ban for minors was filed this July and is currently working its way through the court.

According to the National Center for Lesbian Rights Born Perfect project, 22 states, the District of Columbia and more than 115 municipalities have banned conversion therapy.

Since 2018, several Wisconsin cities including Milwaukee, Madison, Eau Claire, Racine and Superior have passed local ordinances banning the practice.