Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—6th Cir.: Appellate court holds Michigan statute prohibiting conversion therapy likely violates First Amendment, (Dec 19, 2025)

By Robert Margolis, J.D.

Is conversion therapy a form of medical treatment such that a statute prohibiting licensed therapists from practicing conversion therapy regulates the conduct of a medical practice? Or is it a form of speech such that the statute constitutes a restriction on speech protected by the First Amendment.?

In a lawsuit brought by Catholic Charities and other counselors who practice conversion therapy, who seek to enjoin the Michigan statute that prohibits the practice of conversion therapy, M.C.L. § 330.1100a(20), a federal district court denied injunctive relief, holding that a statute prohibiting licensed therapists from practicing conversion therapy regulated medical treatment. On appeal, however, the United States Court of Appeals for the Sixth Circuit has reversed the district court, holding that conversion therapy offered in the form of “talk therapy” is “spoken words and nothing more” and therefore speech protected by the First Amendment. The appellate court remanded the case to the district court “for prompt entry of a preliminary injunction” against the State enforcing the statute during the pendency of the litigation. One judge dissented, calling conversion therapy a medical practice that “[s]cientific evidence now demonstrates … is ineffective and harmful,” and would have upheld the injunction (Catholic Charities of Jackson, Lenawee, and Hillsdale Counties v. Whitmer, No. 25-1105 (6th Cir. Dec. 17, 2025)).

M.C.L. § 330.1100a(20) provides that therapists may offer their minor clients “counseling that provides assistance to an individual undergoing a gender transition.” It also provides that therapists may lose their license and be subject to fines up to $250,000 if they provide “conversion therapy,” defined as, inter alia, counseling to “change an individual’s sexual orientation or gender identity, including, but not limited to, efforts to change behavior or gender expression or to reduce or eliminate sexual or romantic attractions or feelings toward an individual of the same gender.” Id. The law took effect in February 2024, and several months later several counselors who provide conversion therapy sued to enjoin enforcement of the statute’s prohibition, bringing six constitutional claims. The plaintiffs moved for a preliminary injunction, seeking to enjoin enforcement of the statute while the litigation is pending. Agreeing with the State that the statute regulated “conduct” in the form of medical “treatment,” and not speech, the district court denied the injunction, leading the plaintiffs to appeal.

After holding, like the district court, that the plaintiffs have standing to challenge the statute because they seek to engage in speech that the statute prohibits, and there is a credible threat of enforcement by the State, the appellate court addressed the merits of the injunction motion.

Content-based regulation. The appellate court found that the plaintiffs were likely to succeed on the merits of their case, and therefore are entitled to preliminary injunctive relief, because in the court’s view, the statute not only regulates speech, but “[w]orse, the Michigan law discriminates based on viewpoint” in that it permits therapists to engage in therapy supporting gender transitions, while prohibiting conversion therapy. As a “content-based restriction,” the statute was therefore “presumptively invalid” and Michigan bore the burden of rebutting the presumption, or finding an exception that removes the statute from First Amendment scrutiny altogether.

The district court had held that the statute was enacted not as a speech regulation but pursuant to “the broad power of States to regulate the practice of licensed professionals[,]” which long has been recognized. The State similarly argued that because the statute regulates medical treatment, it “is subject only to rational basis review.” The appellate court was not convinced, reasoning “it takes more than a general tradition of regulation, in some domain of human activity, to validate content- and viewpoint-based restrictions on speech.”

The court relied heavily on United States v. Stevens, 559 U.S. 460, 468 (2010), in which the Supreme Court struck down a statute making it a crime to sell videos depicting “animal cruelty,” finding the statute to be an unconstitutional content-based speech regulation because it proscribed “visual and auditory depictions … depending on whether they depict conduct in which a living animal is intentionally harmed.” The government asserted the long history of American law preventing animal cruelty as supporting the statute, but the Supreme Court reasoned that absent a long history preventing “depictions” of animal cruelty, the government’s argument failed. Id. at 469, 481. Taking the reasoning of Stevens, the appellate court held it was not sufficient for Michigan to show a long history of regulating medical treatment; instead it must point to a long history of regulating the type of speech that the M.C.L. § 330.1100a(20) regulates. Michigan could not do so. The appellate court noted that at oral argument, counsel for the State admitted it had no examples of statutes or regulations other than the statute at issue (and similar statutes in other states) the application of which is triggered by the content of a medical provider’s speech.

The appellate court rejected the State’s argument that the statute regulates “conduct” rather than speech, noting the argument faces strong headwinds because the counseling at issue “consists solely of spoken words,” and those words reflect the speakers’ moral beliefs. As such, according to the appellate court, the regulation is one of speech, not conduct. Therefore, the statute is subject to “the strictest of scrutiny” as content- and viewpoint-based speech. Because the State did not show that the statute is the least restrictive means of achieving a compelling government interest, it could not survive strict scrutiny. Therefore, the appellate court found the plaintiffs are likely to succeed on the merits of their claim, and injunctive relief is warranted.

Dissent. One judge dissented from the judgment, rejecting the majority’s determination that strict scrutiny applies to the regulation of medical treatment when “the regulated treatment is delivered via words.” Instead, “psychotherapy is an evidence-based medical intervention provided by trained licensed professionals, and it falls within the state’s history power to regulate medicine.” The dissenting judge provided a history of conversion therapy, leading to the current scientific consensus rejecting it as harmful, to support situating the Michigan statute among laws regulating medical practice. As such, the dissenting judge would employ “intermediate scrutiny” to ensure the law furthers a significant state interest in regulating medical care and is not substantially more burdensome than necessary. Under that level of scrutiny, the statute passes muster, according to the dissent, which cited a long history of courts upholding state regulation of speech only as part of the practice of medicine. The dissent characterized the majority opinion as consisting of several “missteps”: (1) applying a traditional content and viewpoint discrimination framework, which is “incongruent” in the field of medical interventions; (2) relying on Supreme Court precedent, like Stevens, which did not involve medical treatment; (3) wrongly assuming the State can only regulate medical treatment if it has a physical component to it; and (4) lacking any limiting principle.

The case is No. 25-1105.

Judge: Kethledge, R.

Attorneys: Luke William Goodrich (The Becket Fund For Religious Liberty) for Catholic Charities of Jackson. Christopher W. Braverman, Office of the Attorney General, for Gretchen Whitmer.

Companies: Catholic Charities of Jackson

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