State officials are trying to determine how Tuesday’s Supreme Court ruling overturning a Colorado ban on conversion therapy might affect a similar law in Maryland — and whether there is time in the waning days of the legislative session to make adjustments.
Maryland is one of 22 states and the District of Columbia with laws like Colorado’s ban on conversion therapy, which refers to practices that discourage LGBTQ+ people from embracing their sexual identity or gender orientation. The practice is discredited by major medical societies, and opponents say it is actually harmful to those subjected to it.
But the Supreme Court, in a case brought by a Colorado therapist, said the law there violated her free speech rights by determining what she could and could not say in her “talk therapy” sessions. The court, in an 8-1 ruling, said the Colorado law seeks to “regulate speech based on viewpoint” and sent it back to the Colorado courts to determine the law’s constitutionality.
Both opponents and supporters of conversion therapy say that Maryland’s ban, signed into law in 2018 by then-Gov. Larry Hogan (R), is similar to the Colorado law, and is therefore at risk.
“For Marylanders, our law remains in place for now, but this decision may make it more vulnerable to legal challenges,” said Jeremy Browning, director of the Maryland Commission on LGBTQIA+ Affairs. “That raises real concerns about our ability to prevent harm before it happens.”
But Browning said conversion therapy “remains a harmful and discredited practice, and this ruling does not change that.”
Maryland’s law bans a licensed mental health practitioner working with a minor from “any effort to change the behavioral expression of an individual’s sexual orientation, change gender expression, or eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same gender.”
The Maryland law does allows efforts that “provides acceptance, support and understanding, or the facilitation … of gender identity exploration and development” and does not “seek to change sexual orientation or gender identity.”
Reaction at the State House among supporters of the law included “sadness” and “disappointment” at what the court’s ruling could mean for Maryland’s LGBTQ+ population.
Del. Kris Fair (D-Frederick), noting that the ruling came down on International Transgender Day of Visibility, called it “another devastating blow” to protections for LGBTQ+ people under the Trump administration.
“Trans people say all the time that visibility, without material support, is simply a target on trans people’s backs in this antagonistic cultural moment — especially today as the Supreme Court delivered yet another devastating blow to LGBTQ+ rights,” Fair said Tuesday on the floor of the House.
In a statement Tuesday, Gov. Wes Moore (D) said the administration was reviewing the ruling with Attorney General Anthony Brown to “determine the full implications for Maryland law and any appropriate next steps.”
In the next two weeks, House and Senate leadership will do the same, and determine if there is time to respond to the ruling before session runs out at midnight on April 13.
Just hours after the opinion dropped, Senate President Bill Ferguson (D-Baltimore City) told reporters he wasn’t sure yet if there was time to respond to the ruling.
“We have to be in the business of protecting people, and there is pretty much no evidence that conversion therapy is scientifically able to have any impact, and so that’s a depressing reality,” Ferguson said.
House Speaker Joseline Peña-Melnyk (D-Prince George’s and Anne Arundel) said the House is considering options on how to protect Marylanders “from these deceptive practices” this session.
“We’re all just very disappointed,” Peña-Melnyk said. “We will gather ourselves and then try to put our minds together and see what we can do in the next 13 days.”
Meanwhile, proponents of conversion therapy say the ruling is a victory for the freedom of speech of counselors who “help clients reach their own goals” of suppressing unwanted feelings involving gender identity or sexual orientation.
“For too long, state laws have attempted to silence counselors who offer an alternative to one narrow, state-endorsed viewpoint, particularly on deeply personal issues involving identity, mental health, and human flourishing,” Jeffrey S. Trimbath, president of the Maryland Family Institute, said in a written statement.
“This ruling restores an essential principle: that individuals and families, not Annapolis bureaucrats, should guide the goals of counseling,” the statement continues. “ Rather than a state-imposed gag order, counselors deserve the freedom to exercise their First Amendment rights to help clients reach their own goals.”
Del. Bonnie Cullison (D-Montgomery), who sponsored the 2018 legislation that banned conversion therapy in the state, said she was “pretty discouraged” by the ruling.
“I’m very disappointed that the Supreme Court talks about it as ‘talk therapy.’ It’s not talk therapy — it’s conversion, that’s a really strong word,” Cullison said.
“You are converting someone to something they are not,” she said. “It is incredibly injurious to the mental health of the individual who is a victim.”
This year, Cullison is sponsoring House Bill 1209, which would establish criminal liability for providing conversion therapy and a health care malpractice cause of action, among other changes.
The bill is currently languishing in committee, but Cullison said she will be talking with leadership about trying to move it forward.
Sen. Cheryl Kagan (D-Montgomery), sponsor of a Senate version of Cullison’s bill, admitted it would be challenging to get the bill passed with less than two weeks left in the session, even with the “dreadfully disappointing” ruling from the Supreme Court that “endorsed hate and abuse.”
“I think this year, we’re done. The question is what will happen in the future,” Kagan said. “It was a long shot anyway in an election year to pass a challenging bill, but we were having good conversations and educating legislators about the importance of the issue.”
After the floor session, Fair said the ruling would likely create “at minimum, a loophole, but would more likely just blow open the door” on Maryland’s conversion therapy ban — a hard reality for him and other LGBTQ+ Marylanders.
That includes those who would otherwise be celebrating Transgender Day of Visibility.
“We are running at 100 miles an hour here at the state, trying to figure out how to protect and fill as many gaps as we possibly can for the trans community,” Fair said. “And it’s frustrating because I have to go home and talk to my trans friends, my trans colleagues and say, ‘It’s never going to be enough — what we’re trying to do, how we’re trying to protect everybody’s right to just live their lives and be happy.’”
— Reporters Bryan P. Sears and Christine Condon contributed to this report.
