Uganda secures $2 billion in World Bank financing as lending resumes [following a nearly two-year suspension triggered by the country’s controversial anti-LGBTQ legislation]
More: https://thedigitalbanker.com/uganda-secures-2-billion-in-world-bank-financing-as-lending-resumes/
EU launches infringement procedure against Slovakia constitutional reform [family and gender questions]
The European Commission on Friday formally launched an infringement procedure against Slovakia over constitutional reforms preserving its national identity in matters such as gender and family law. In reference of the decision, the Commission cited the amendments’ alleged violation of the fundamental principles of European Union (EU) law.
“[These reforms] contravene the principle of the primacy of EU law, which is a fundamental element of the EU legal order, together with the principles of autonomy, effectiveness, and uniform application of Union law. Even when a Member State amends its constitution, such an exercise of national competence cannot circumvent the need to comply with fundamental principles of Union law,” the Commission stated in a press release.
According to the principle of the primacy of EU law, when there is a conflict between an EU law and a national law of an EU member state, EU law will prevail. Although not enumerated in EU treaties, the EU court has judicially recognised the principle in several cases, including in the landmark cases of Van Gend en Loos (C-26/62) and Costa v ENEL (C-6/64).
The Commission also said it has sent a letter of formal notice about the infringement procedure to Slovakia, which now has two months to respond to the concerns. If Slovakia fails to provide a satisfactory response, the Commission may issue a reasoned opinion and refer the matter to the competent EU court.
In September, Slovakia adopted constitutional amendments allowing its domestic laws to take precedence over EU law in matters concerning national sovereignty, including family and gender. Article 7 of the Constitution particularly guarantees the non-application of international law, and thus empowers Slovak authorities to assess the extent of EU law application in Slovakia, including rulings of the EU Court.
Other constitutional amendments include the prohibition of sexual education for children without parental consent, the recognition of only the biological sex, and the limitation of adoption to married heterosexual couples. It also incorporates a guarantee of equal remuneration in work for men and women.
Slovak Prime Minister Robert Fico, responding to the notice, said, “I cannot imagine that any international organisation should dictate to us how many genders there should be and who can marry and who cannot.”
The legal proceedings follow the Commission’s previous urgent opinion, where they expressed concern over a conflict between EU law and the definitions of “national identity” and “cultural and ethical issues” under the drafted amendments.
The proposed amendments at the time also drew scrutiny from Amnesty International, which urged the Slovak government to reject the amendments, as they would harm the LGBTQ+ community. UN Special Rapporteurs additionally warned that the amendments were inconsistent with Slovakia’s international human rights obligations, including the rights to non-discrimination and sexuality education under international human rights law.
Notably, Slovakia ranks 36th out of 146 countries in the Rule of Law Index 2025 prepared by the World Justice Project.
The post EU launches infringement procedure against Slovakia constitutional reform appeared first on JURIST – News.
Repost: Sarthak Gupta, Against the Harmful Digital Satire – Free Speech, Digital Algorithms, and Queer Harm in [ECtHR] Yevstifeyev v. Russia
13.10.2025
In a previous piece for EJIL: Talk, I examined the European Court of Human Rights’ (ECtHR) judgment in Yevstifeyev and Others v. Russia, where the Court addressed two applications. The first concerned homophobic verbal assaults by a politician, which the Court rightly found to violate Articles 8 and 14 of the Convention. The second application, Petrov v. Russia, dealt with a satirical video depicting a ‘Gay hunt,’ which the Court held did not cross the ‘threshold of severity’ to trigger Convention protection. In my piece, I criticised the Court’s reasoning in Petrov, arguing that the judgment reflected an inconsistent application of the severity threshold, a problematic privileging of satirical context over violent content, and an inadequate consideration of collective harm to the queer community.
In response, a recent piece at Völkerrechtsblog has defended the Court’s reasoning in Petrov, contending that the video constituted protected satire and that the Court correctly applied the ‘reasonable reader’ standard while discounting audience hostility. This reply critiques that defence. While the defence raises valid concerns regarding doctrinal coherence and digital platform complexities, it ultimately overlooks how digital satire, when intertwined with harmful and homophobic tropes and symbolic violence, can perpetuate ‘structural harm’ and ‘discrimination’ under Article 14 of the Convention. This reply revisits three aspects: the misapplication of the ‘reasonable reader’ standard, the privileging of ‘intent’ over ‘effect’, and the misconstruction of the threshold of severity.
Not just ‘Digital Satire’
Before engaging with doctrinal standards, it is critical to examine the nature of the speech in Petrov. While it is cloaked in digital satire, the video also bears all the hallmarks of what scholars define as dangerous speech, referring to an expression that can increase the risk that its audience will condone or participate in violence against another group. In Petrov, the ‘Gay Hunt’ video dehumanises queer individuals through staged killings, slurs, and caricatures, turning satire into symbolic violence that normalises harm. To consider such an expression as satire solely ignores its role in encouraging hostility, particularly in Russia, where anti-queer prejudice is already normalised. The power of satire is its ability to render harmful narratives more palatable (See Godioli, Young, & Fiori). As Roman Zinigrad argues, when hate and harm are presented humorously, it becomes more likely to be accepted, even by those who would reject the same content if expressed seriously. The ECtHR’s failure to engage with this legitimising function of humour, its ‘digestibility’, renders its reasoning in Petrov especially problematic.
Consider a hypothetical scenario where a video titled ‘Jew Hunt’ is released on social media in which actors dressed as Nazi soldiers jokingly capture and execute Jewish characters, mocking the victims as part of an alleged parody of antisemitic regimes. Even if the creators claimed the intent was to ridicule historical bigotry, such a video would rightly trigger condemnation, outrage, and criminal liability under hate speech and Holocaust-related laws in multiple jurisdictions. The reason is simple: some narratives, even when presented as satire, carry such a historically violent and dehumanising charge that humour cannot sanitise them. These laws target not only the denial of atrocities but also their trivialisation, glorification, or approval, and a parody of persecution can fall squarely into that category. The digital satire in the ‘Gay Hunt’ video follows this template, yet it received judicial indulgence under the guise of parody.
The ECtHR itself recognised that humour can constitute symbolic violence when it perpetuates harmful stereotypes. In Canal 8 v. France, the Court upheld financial penalties against a broadcaster whose sketches, though humorous, stigmatized queer individuals and trivialised sexual harassment, particularly because unsuspecting individuals were “used” without consent. Similarly, in Féret v. Belgium, the Court held that xenophobic jokes during an election campaign could provoke public contempt and hate, while in Sousa Goucha v. Portugal, it emphasised the private status of those depicted and the importance of voluntary participation. Together, these cases demonstrate that the ECtHR weighs the real-world harms and risks of incitement behind ostensibly comedic content. By contrast, in Petrov, the ECtHR treated the ‘Gay Hunt’ video primarily as satire, downplaying the symbolic violence and risk of incitement.
The Reasonable Reader Standard: Misapplied and Under-Theorised
Supporters of the Petrov judgment argue that the Court implicitly invoked the ‘reasonable reader’ standard, derived from cases like Sousa Goucha and Verlagsgruppe v. Austria, to assess whether the satirical video incited hatred. Yet the invocation in Petrov is at best implicit and at worst doctrinally unmoored. Unlike Sousa Goucha, where the satire was directed at a public figure and the Court carefully weighed the broadcast’s social function, Petrov involved a vulnerable minority group historically (and contemporarily) subject to marginalisation and violence all around the European states. The absence of any express discussion of how a ‘reasonable viewer’ in Russia, a country with institutionalised homophobia, would interpret satire that depicts the killing of a gay man renders the Court’s analysis dangerously superficial.
Crucially, the digital nature of the dissemination requires a recalibration of the ‘reasonable reader’ framework. One critical argument of the supporters of the Petrov judgment, that the audience was non-identifiable due to online circulation, overlooks how, in digital ecosystems, even heterogeneous exposure leads to foreseeable audience clusters. Instagram’s algorithms, like those of other major platforms, foster ideological micro-communities (see here and here). A post that engages with homophobic tropes is unlikely to circulate randomly; it is more likely to be shared within networks where prejudicial or exclusionary attitudes toward queer community already find resonance, thereby heightening the risk of discriminatory interpretation and endorsement.
In Féret, the ECtHR held that speech targeting members of a ‘less informed public’, though not named, was still identifiable, and the speaker could foresee its likely impact. This principle translates powerfully to digital speech, where hashtags, follower networks, reposts, and comment cultures render the audience predictable, even if not individually named. In this light, the legality of the original post cannot be assessed in isolation from its foreseeable digital trajectory. The Court’s neglect of this foreseeability principle in Petrov is a doctrinal and empirical gap. Moreover, digital speech is not only received by primary viewers but is continuously redistributed, reframed, and meme-ified by secondary users. This spread is not accidental but built into digital communication, which means that satirical hate content is likely to evolve into harsher forms once posted. What matters is not only the initial 120,000 views but also the predictable afterlife of the content in algorithm-driven echo chambers that fuel anti-queer violence.
The argument that Instagram provides an ideologically fragmented space where satire is unlikely to reinforce bigotry misconstrues how hate surfaces digitally. As shown in Petrov, the video generated hundreds of affirming comments endorsing homophobic violence. Zinigrad notes that this reception magnifies ‘harm’ by legitimising bigotry, especially where state narratives themselves reinforce discrimination. The presumption that digital platforms diffuse meaning, rather than concentrate bias, is a fiction unsupported by digital media research (see here, here, and here).
Intent v. Effect: An Overcorrection of Precedent
The defence of the Court’s judgment places excessive emphasis on the satirical intent of the video creator, citing Jersild v. Denmark, where a journalist was exonerated for broadcasting racist speech as part of critical reporting. However, Jersild involved explicit editorial distancing and a journalistic framework. In Petrov, the speaker was a comedian, not a journalist, and the violent fantasy against the queer community was not marked as parody in a way that would negate its harmful effect. This distinction is crucial because the ECtHR has consistently held that intent is not determinative when evaluating hate speech. In Erbakan v. Turkey, the Court affirmed that even religiously framed speech with political aims may be restricted if it incites division. Similarly, in Soulas v France, the Court upheld convictions despite the authors’ claim that their xenophobic writings were meant to provoke debate, not hatred.
In Belkacem v. Belgium, the Court upheld criminal sanctions against a video that incited hatred against non-Muslims, rejecting the defense that it was merely polemical. Likewise, in Perinçek v. Switzerland, the Court acknowledged that the expression denying historical atrocities, even under the guise of political cover, could provoke deep social harm and be limited accordingly. This logic applies with equal force to satirical denial or parody of queer suffering. In the digital context, intent becomes even less reliable as a safeguard. Digital speech is fast-moving and decontextualised, across varied interpretive lenses. Thus, a jurisprudence that privileges intent over effect is particularly ill-suited for digital platforms. The fact that the video was framed in satire does not dilute its real-world resonance as dangerous digital speech.
Threshold of Severity: Conceptual Inconsistency and Selective Application
The ECtHR has long recognised that negative stereotyping of a group can, under certain circumstances, implicate Article 8. In Aksu v. Turkey, the Grand Chamber held that such stereotyping may impact an individual’s ‘private life’ by undermining their self-worth and social standing. In Budinova and Chaprazov, and Behar and Gutman, the Court reiterated that public statements stigmatising vulnerable communities may meet the threshold of severity even when not personally directed. In Petrov, however, the Court found that the satirical video, though containing homophobic language and imagery, did not meet this threshold. It justified this conclusion on the basis that the video was not targeted at the applicant, that it formed part of a broader political debate, and that it parodied state-sponsored homophobia rather than promoting it. However, this rationale ignores how digital satire, especially when violent, can validate offline harm. The video’s indirect dissemination, through downloads, shares, and algorithmic visibility, amplified its reach among those predisposed to act on its message. The 714 comments were not abstract digital chatter; they were proof of uptake, alignment, and potential mobilisation.
The ECtHR’s contrasting approach in Canal 8 is instructive. There, the Court recognised that humour may constitute symbolic violence when it perpetuates stereotypes and normalises discriminatory behaviour. It upheld domestic sanctions, highlighting the importance of communication context, audience impact, and the absence of contribution to public discourse, all of which were equally present in Petrov, yet disregarded by the Court. The Court’s distinction between satire that parodies discrimination and speech that reinforces it becomes untenable when the satire adopts the very hateful language and imagery of persecution. In Lilliendahl v. Iceland, homophobic Facebook comments, despite being allegedly humorous, were found to justify criminal sanction. Likewise, in Women’s Initiatives Supporting Group v. Georgia, the Court faulted authorities for failing to prevent homophobic violence, emphasising that governments must not remain passive in the face of speech that risks enabling broader discrimination.
By contrast, the Petrov judgment adopts a ‘minimalist threshold’ and treats digital harmful satire as immunised from scrutiny regardless of context or consequence. This approach threatens to insulate future instances of coded hate speech that rely on irony, parody, or humour to veil discriminatory narratives. The result is a jurisprudence that undervalues digital speech’s virality, endurance, and harm.
ECtHR & Future of Digital Satire
In essence, the defence of Petrov adopts a conventional structure, intent-based analysis, satire defence, and a vague notion of audience neutrality. But in digital spaces, this framework collapses. The digital space has fundamentally reshaped the way harmful content, especially satirical expression, operates, circulates, and inflicts harm. In this environment, satire is not a neutral or universally understood literary device. It is a form of expression that can be rapidly decontextualised, algorithmically promoted, and socially legitimised, especially when targeting already marginalised communities. In this regard, the ECtHR’s rationale in Petrov neglects how digital architecture intensifies ideological clustering, how dissemination pathways are foreseeable, and how digital satire can operate as a vector for hate. To treat digitally harmful satire as legally benign based on outdated assumptions of audience unpredictability is not just an error; it is jurisprudential negligence. It is not enough to ask whether a video intends to offend or provoke; we must also ask what it does in the world it enters. That, ultimately, is the ‘threshold of severity’ the ECtHR should have measured, but did not.
Cite as
Sarthak Gupta, Against the Harmful Digital Satire: Free Speech, Digital Algorithms, and Queer Harm in Yevstifeyev v. Russia,Völkerrechtsblog,13.10.2025, doi: 10.17176/20251013-151517-0.
Author
Sarthak Gupta is a lawyer currently serving as a Judicial Law Clerk-cum-Research Associate to Justice Sandeep Mehta at the Supreme Court of India. He is a Helton Fellow at the American Society of International Law and an editor at the Global Freedom of Expression at Columbia University.
Repost: Alessandro Marcia, Rainbow Europe or Rainbow Washing? [LGBTIQ+ Equality Strategy (2026-2030)]
Over the years, different EU institutions have tried to translate Phillip Ayoub and David Paternotte’s idea of a “Rainbow Europe” into law. In 2020, for instance, the European Commission published its first-ever LGBTIQ Equality Strategy under the banner of building a “Union of Equality”. This slogan was reproduced by Commission President von der Leyen in her 2020 State of the Union speech, when she promised that she “will not rest when it comes to building a Union of equality (…) where you can be who you are and love who you want”. Two years later, the Commission went even further by proposing a direct link between the EU founding values in Article 2 TEU and LGBTIQA+ rights in the context of an infringement action against a Hungarian law that censors Queer books and media.
Yet, recent developments have increasingly challenged this narrative. A survey conducted by the EU Fundamental Rights Agency (FRA) in 2024 revealed that discrimination faced by LGBTIQA+ individuals remains dramatically high. In addition, a growing number of EU Member States have proposed or introduced legislation that directly targets LGBTIQA+ individuals (see, for instance, recent developments in Bulgaria, Slovakia, and Italy). What a decade ago seemed to be Hungary’s isolated case is today a growing trend across the Union.
Against this backdrop, the European Commission just published its new LGBTIQ+ Equality Strategy (2026-2030). In my view, however, this initiative represents a downgraded commitment of the European Commission towards the protection of Queer individuals.
In 2020, the European Commission adopted, by means of a Communication, the EU LGBTIQ Equality Strategy (2020-2025). Symbolically, this was a milestone: a Commission policy document explicitly and comprehensively dedicated to the protection of LGBTIQA+ individuals. This innovation also came during a legislative term marked by the unprecedented appointment of a Commissioner for Equality and the creation of a dedicated Commission unit on non-discrimination and LGBTIQA+ matters.
The Strategy was built around four major pillars: tackling discrimination against LGBTIQ people, ensuring LGBTIQ people’s safety, building LGBTIQ-inclusive societies and leading the call for LGBTIQ equality around the world. Each of these pillars identified a set of legislative and non-legislative initiatives to be achieved within a fixed timeline, thus serving as a roadmap for the Commission’s work over the entire mandate.
From a legal perspective, two legislative proposals stood out. The first one concerned the inclusion of both hate crimes and hate speech against LGBTIQA+ persons in Article 83(1) TFEU. This update would allow the Commission to introduce a proposal for a Directive on minimum rules concerning the definition of criminal offences and sanctions. The second initiative was the so-called “Equality Package”, a proposal intended to harmonise rules concerning parenthood in cross-border situations. This would have mandated the mutual recognition of parental bonds across the EU, including between same-sex parents and their children. Alongside these initiatives, the Strategy stressed the importance of overcoming the stagnation of the proposal for a Horizontal Anti-Discrimination Directive.
These two legislative proposals were built upon two legal bases – Articles 83(1) and 81(3) TFEU respectively – that provide a special legislative procedure, which requires the Council to act unanimously after consulting the European Parliament. Despite the Parliament’s positive endorsement of these legislative initiatives (here and here), both proposals remain blocked in the Council due to the opposition of multiple Member States. Likewise, no progress has been made regarding the Horizontal Anti-Discrimination Directive, which has remained stuck in the Council since being proposed in 2008.
Furthermore, the Strategy also entailed a number of minor legislative initiatives. For instance, Directives 2024/1499 and 2024/1500 extended the remit of equality bodies (agencies in the Member States that support victims of discrimination) to discrimination based on sexual orientation in the field of employment. In parallel, the Strategy outlined some specific rules on LGBTIQA+ rights to be embedded into other pieces of EU legislation (the so-called “mainstreaming”). An example is the Artificial Intelligence (AI) Act adopted in June 2024, which prohibits AI systems using biometric data to determine a person’s sexual orientation. However, while the Strategy proposed extending this provision also to gender identity, this does not appear in the final text of the AI Act.
Against this backdrop, both legislative proposals outlined in the Strategy – which address LGBTIQA+ individuals explicitly and directly – remain blocked in the Council. Similarly, the Member States failed once again to make progress on the Horizontal Anti-Discrimination Directive. In my view, this stagnation mirrors the divergent legal and political approaches of the Member States, as well as the highly politicised nature of LGBTIQA+ rights. In parallel, it seems that small-scale legislative intervention and the mainstreaming of LGBTIQA+ concerns into other pieces of EU law are more likely to be successful. This approach leaves less room for politicisation, while the ordinary legislative procedure (with its qualified-majority voting) allows bypassing the opposition of regressive Member States.
Another key objective of the Strategy was to monitor the implementation of EU law by the Member States and initiate infringement procedures in cases where EU law had been breached in relation to LGBTIQA+ rights (see also the latest Implementation Report).
Throughout the timeframe of the Strategy (2020-2025), several regressive laws that target LGBTIQA+ individuals were enacted at the national level. In 2021, for example, Hungary passed a law that restricts access to books and other media that portray Queer experiences. In addition, just a few months ago, the Orbán-controlled Parliament adopted the so-called Freedom of Assembly Act, which enables authorities to classify Pride marches as violations of the Child Protection Act and, as a result, de facto limits the freedom of assembly. In a similar vein, Bulgaria has introduced a law that prohibits the discussion of LGBTQIA+ topics in schools, and, more recently, Slovakia passed a constitutional reform that recognises only two genders (assigned at birth), limits adoption rights to opposite-sex married couples and bans any discussion of Queerness in schools.
Initially, the Commission took a bold stance against Hungary’s attacks on the LGBTIQA+ community. Just three years ago, the Commission referred Hungary to the EU Court of Justice over its “anti-propaganda law”. Notably, besides raising a series of technical violations of EU law, the Commission argued that Hungary had infringed upon the Charter and the EU “founding values” in Article 2 TEU. This allegation has recently been endorsed by Advocate General Tamara Ćapeta. While the judicial enforcement of Article 2 TEU is a highly controversial question among scholars (see Bonelli and Claes; see also Spieker), this case symbolically demonstrated the European Commission’s commitment to protect Queer individuals from attacks on their rights at the national level.
But the very same Commission did not coherently act when faced with similar developments. For instance, some civil society organisations suggested that the Hungarian Freedom of Assembly Act, which also allows police authorities to use real-time AI biometric tools to identify Pride participants, violates the EU AI Act. Yet, the Commission has not taken any action so far. The same inaction can be noticed when it comes to Bulgaria and Slovakia.
In other words: the European Commission is engaging in – what I call – “selective enforcement” of EU law. Specifically, the Commission applies double standards, probably because of political factors such as President von der Leyen’s dangerous reliance on a more conservative-leaning majority, which now also includes political parties from the far-right fringe.
On 8 October 2025, the Commission seemingly renewed its commitment by presenting a new LGBTIQ+ Equality Strategy (2026-2030). But this Strategy does not follow the structure of the previous one. Instead, it is built around three broader, more ambiguous objectives: protect, empower, and engage LGBTIQA+ people.
First, the Commission emphasised its opposition to so-called conversion practices (i.e., practices aimed at “converting” an individual’s sexual orientation or gender identity). This comes as a logical response to the European Citizens Initiative (ECI) that, just a few months ago, gathered over 1 million signatures in order to ban conversion practices at the European level. However, while the ECI suggested an EU-wide ban of these practices by including them in the list of crimes in Article 83(1) TFEU, the Commission did not follow that path. Instead, the Commission will fund a study to analyse the nature, prevalence, and impact of these practices on LGBTIQA+ people. Based on the results of this study, the Commission will supposedly promote a “structured dialogue” and focus on supporting the Member States in banning those practices, highlighting that they play a crucial role to this end.
While whether and how to follow up on a successful ECI falls within the Commission’s discretion, this choice signals caution. The Commission limits its role to that of a simple facilitator of Member States’ action, rather than being an active player in banning these practices (through, for instance, a legislative proposal). To be blunt, Ursula von der Leyen is downgrading her commitment towards the LGBTIQA+ community. Notably, the more conservative-leaning composition of her Commission has led the Union to abandon its role as a central player in protecting and advancing LGBTIQA+ rights, leaving the Member States in the driver’s seat.
Second, the Commission is supposedly committed to overcoming the unanimity blockage in the Council with regards to the two legislative proposals presented as part of the previous Strategy, as well as the proposed Horizontal Anti-Discrimination Directive. The only real innovation in this regard is that the Commission is considering abandoning the proposal of the former Strategy to include hate crime and hate speech in the list of EU crimes in favour of a new legislative initiative based on the existing areas of crime covered by Article 83(1) TFEU. This would allow us to harmonise the definition of offences committed online to include those based on the sexual orientation and gender identity of a person, simply through the ordinary legislative procedure.
Third, the Strategy reiterates that the Commission will continue monitoring the enforcement of EU law by the Member States. However, this stands in sharp contradiction to the Commission’s silence and inaction on the several examples of national laws that directly target LGBTIQA+ individuals.
The Commission’s new Strategy represents a downgraded commitment towards LGBTIQA+ individuals as evidenced by the tools proposed. While the previous Strategy (2020-2025) put an emphasis on legislative intervention and the enforcement of EU law, the newly proposed Strategy focuses more on softer policy instruments, such as recommendations, working groups, and data collection. This is also evident from the language used in the new Strategy: the Commission recurrently emphasises the role of the Member States in protecting LGBTIQA+ individuals. In my view, this shift can be attributed to the more conservative-leaning majority supporting the second von der Leyen Commission and its reliance on far-right political parties.
Many civil society organisations have already argued (here, here and here) that this Strategy is not fit for a society where the rights and freedoms of LGBTIQA+ individuals are increasingly under threat. Over the next five years, the true test will be whether the Commission can translate the Strategy into (at least some) tangible progress towards a “Rainbow Europe”, or whether its cautious approach will ultimately be seen as rainbow washing – a symbolic commitment masking the absence of real change.
The post Rainbow Europe or Rainbow Washing? appeared first on Verfassungsblog.
ILGA World: Bullying: 4 in 5 countries have no laws protecting LGBTI youth
ILGA World expands the ILGA World Database with a section on laws protecting LGBTI youth from school bullying. Data released today shows that a large part of the world has yet to adopt explicit legislation to protect lesbian, gay, bisexual, trans, and intersex youth in schools. However, even in the current global environment — where reactionary forces have turned education paths into battlefields — UN member States are taking concrete steps forward.
Repost: Ryan Thoreson: The Harms of Speech [regulatory and legal landscape shaping conversion therapy restrictions in the United States]
The United States Supreme Court seems poised to strike down state restrictions that prohibit medical professionals from engaging in so-called “conversion therapy,” or efforts to make a lesbian, gay, bisexual, or transgender (LGBT) person heterosexual or cisgender. Although the Supreme Court has declined to hear similar challenges in the past, the arc of its First Amendment jurisprudence and its skepticism of constitutional claims involving sexual and reproductive rights suggest that the restriction at issue is likely to be invalidated.
In this post, I examine the regulatory and legal landscape shaping conversion therapy restrictions in the United States, the challenge that is currently before the Supreme Court in Chiles v. Salazar, and the potential avenues that the Court might take to resolve the case, with broader or narrower repercussions for the regulation of professional speech and the future of equality claims.
Pseudo-therapeutic interventions to change sexual orientation or gender identity have a long history. As same-sex attraction and gender nonconformity were long seen as mental illnesses rather than forms of human diversity, medical and psychiatric professionals used a variety of interventions, ranging from talk therapy that shamed and diminished individuals to aversive conditioning that used physical stimuli to associate pain, discomfort, and nausea with same-sex attraction or gender nonconformity.
Alongside the depathologization of same-sex attraction and gender nonconformity, medical professionals have recognized that attempting to change these traits is not only ineffective, but can be psychologically damaging. For example, peer-reviewed studies have found that LGBT youth who reported undergoing conversion therapy are more than twice as likely to report suicide attempts, contemplating suicide, and depressive symptoms, while support from adults and medical providers reduced the risk of those harms. Like the bans themselves, many of these studies focus on the particular dangers that conversion therapy poses to minors, who may face family rejection because of their sexual orientation or gender identity and often lack the resources or meaningful autonomy to refuse such treatment.
As a result, virtually every mainstream medical association – including the American Medical Association, the American Psychiatric Association, the American Psychological Association, and the American Academy of Pediatrics – has condemned these practices. Many have expressly called for states to act to ban conversion therapy. In recognition of these harms, as of 2025, twenty-three states have adopted legislative bans prohibiting licensed medical providers from engaging in conversion therapy, while another four states have more limited restrictions.
These laws have been upheld multiple times in the face of legal challenges. The Third, Ninth, and Tenth Circuit Courts of Appeals have all upheld statewide conversion therapy bans, while the Eleventh Circuit Court of Appeals invalidated municipal conversion therapy bans in 2022. The Sixth Circuit Court of Appeals is now poised to decide a similar case even as the Supreme Court considers the issue.
Among the many states that have adopted conversion therapy bans is Colorado, which enacted its Minor Conversion Therapy Law (MCTL) in 2019. The MCTL amended the state’s Mental Health Practice Act (MHPA), which provides for the licensure and regulation of mental health professionals in the state. Specifically, the MCTL added a provision to the MHPA that prohibits licensed professionals from providing conversion therapy to minors, defining conversion therapy as “any practice or treatment… that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” It does not, however, include practices or treatments that provide “acceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices” and does not prohibit “[a]ssistance to a person undergoing gender transition.” Notably, too, the MHPA only regulates the conduct of licensed professionals in the state, and exempts anyone who is “engaged in the practice of religious ministry” from its scope.
Kaley Chiles, a licensed counselor, sued the state of Colorado in 2018, saying that the law would prohibit her from engaging in counseling with minors. Chiles says that she does not try to convert her clients to become heterosexual or cisgender, but that in the past she has worked with minors who want counseling – sometimes in accordance with their religious faith – “to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] physical body.”
Chiles sought a preliminary injunction to enjoin enforcement of the MCTL in federal court, claiming the law violated her First Amendment rights to free speech and free exercise. The district court denied that injunction. A divided panel of the Tenth Circuit Court of Appeals affirmed the district court’s decision. It ruled that Chiles did have standing to challenge the law on First Amendment grounds despite the state disclaiming an intent to enforce the law against her, but found that the district court had not erred in finding that she was unlikely to succeed on the merits of her challenge, denying her relief.
In late 2024, Chiles sought a writ of certiorari from the Supreme Court, which earlier this year agreed to hear her appeal. The United States filed an amicus brief supporting Chiles’ position, and advanced that position at oral argument as well. While the justices seemed likely to side with Chiles, how they decide the case is going to be significant not only for LGBTQ youth but also for state regulation of professional conduct, including the practice of medicine and protection of public health.
On appeal, Chiles and the State of Colorado frame the law and its operation in distinctly different ways, and rely on different lines of First Amendment precedent to justify their positions.
Chiles argues that her counseling is purely speech, and is neither conduct nor speech that is incidental to conduct. She contends that, because the Supreme Court has previously indicated that professional speech is not a special category of speech for First Amendment purposes, her counseling should be treated like any other expression. Chiles contends that, because the MCTL regulates the content and viewpoint of her speech, it should be subject to strict scrutiny. Under that standard, Colorado would have to show that it has a compelling state interest in prohibiting speech that seeks to change or repress a minor’s sexual orientation or gender identity, and that the MCTL is the least speech-restrictive way to advance that interest.
In response, Colorado argues that Chiles lacks standing because she does not run afoul of the law, disclaiming any intent to enforce the law unless a person is actually aiming to try to change a person’s sexual orientation or gender identity. Colorado also argues that conversion therapy is conduct, not speech, when it is offered as a form of professional healthcare treatment. Even in National Institute of Family & Life Advocates (NIFLA) v. Becerra, which found that professional speech is not immune from First Amendment review, the Supreme Court indicated that states could prohibit medical treatment that violates a standard of care, even if that treatment involved speech. As a regulation of medical treatment, the state argues, the statute should be subject to rational basis review, whereby the law should be upheld so long as the state has a legitimate interest in prohibiting conversion therapy and the MCTL is rationally related to that interest.
At oral argument, the majority of the justices seemed skeptical of the notion that Chiles lacked standing in the case. Although Justice Sotomayor in particular questioned whether Chiles’ counseling actually risked prosecution by the State of Colorado, that argument seemed unlikely to carry the day. Justice Gorsuch sought and received clarification that Chiles was also willing to explore changes to identity and not just behavior and expression, putting her counseling at odds with the statute. Similarly, Justice Alito’s line of questioning suggested that even if Chiles was not overtly seeking to change a person’s sexual orientation or gender identity, a plain reading of the statute would prohibit counseling aimed at reducing same-sex attraction and behavior and encouraging individuals to embrace their sex assigned at birth.
The Court did seem to recognize, as did Chiles’ attorney, that the state’s power to regulate conduct and speech incident to conduct is not in question in the case. As some small consolation, that means that licensed professionals who use physical techniques, aversive approaches, medication, and other forms of treatment are likely to remain covered by conversion therapy bans even if the Court rules for Chiles.
Justice Barrett’s questions seemed to go further, asking whether Chiles’ counsel thought there might be a similar argument if Chiles was sued for malpractice for violating a standard of care. While he responded that she’d have other defenses and protections in a malpractice suit, the question raises the possibility of a more extreme holding that would closely scrutinize common law tort remedies and not only legislation limiting professional misconduct. In light of the Court’s strong sympathies for religious litigants invoking the First Amendment, including in cases where the freedoms of speech and religion have limited equality protections for LGBT people, it seems likely that the Court will invalidate at least some aspects of Colorado’s ban. But the way they reach that conclusion, and how broadly their holding extends, is likely to matter greatly.
There are, of course, scenarios in which Colorado’s law could be upheld. While it seems unlikely, the Court could find that Chiles has not established standing. It could also find that, as other courts have found in similar challenges, the law regulates conduct and not speech – that is, when therapy is offered as a medical treatment to a client seeking a service, it amounts to conduct even when it is primarily or even exclusively performed through speech.
Alternatively, there are ways the Court could rule for Chiles on free expression grounds in a way that still preserves some capacity for the regulation of conversion therapy and speech that breaches a standard of care to cause harm to LGBT minors. One possibility that Justice Sotomayor seemed to advocate at oral argument was that if the law was found to be a content- or viewpoint-based regulation of speech, the Court should remand it to determine whether the state can meet that burden. That would allow Colorado to put forward evidence of the harms of conversion therapy, and potentially show that its regulation is justified because of the ample proof that such counseling exacts real harm. Or the Court could find the MCTL infringes on free expression, but spell out how a similar end could be achieved in content- or viewpoint-neutral ways – for example, proscribing treatment that violates a medically indicated standard of care. Somewhat surprisingly, Justice Kagan’s questions suggested that she might be inclined to adopt that position, though it is difficult to imagine more conservative justices joining that approach.
The most likely outcome is that the Court will extend its ruling in NIFLA, which suggested that professional speech is protected by the First Amendment but that states may adopt laws that either require the disclosure of factual, noncontroversial information or regulate professional conduct that incidentally involves speech. The Court in Chiles seems poised to adopt a narrow construction of the second category, finding that any professional activity achieved through speech alone receives the full protection of the First Amendment. That could have seismic effects not only in medicine but in virtually any licensed profession where professionals are held to certain standards in their provision of advice, guidance, information, referrals, or other speech acts.
While that would be a significant blow to consumer and client protections across a range of professions, the worst-case scenario would be one in which the Court invalidates the MCTL in a sweeping manner that seems to broadly insulate conversion therapy and other harmful treatments from legal repercussions. Such an approach would go far beyond the precedent in NIFLA, not only restricting the state’s regulation of professional treatment but also limiting remedies in tort for those who are harmed by practitioners who offer dangerous or substandard treatment that is physically or psychologically harmful.
If there is any silver lining to be found in a loss in Chiles, it is that a ruling striking down Colorado’s ban could – if fairly applied – provide protection for speech that is affirming of sexual orientation and gender identity in other contexts, insulating it from state regulation. As Justice Gorsuch pointed out, the same protections for speech might prohibit a state from adopting a law that counsels that homosexuality or gender nonconformity are mental illnesses, and counsel for the United States pointed out that those protections would equally prevent those states that have banned gender-affirming care in the form of puberty blockers, hormones, and surgical interventions from also banning gender-affirming talk therapy.
Just as notable as the precedents and arguments at issue in Chiles was what the Court largely ignored. As in many recent cases – including United States v. Skrmetti, which upheld state bans on gender-affirming care for minors, and Mahmoud v. Taylor, which found that parents have a First Amendment right to bar their children from accessing LGBT-inclusive curricula in schools – the lives and voices of LGBT youth were once again conspicuously absent from the Court’s reasoning. Chiles purports to speak for minors who she says are uncomfortable with their identities, and the Court seems to take her at her word, without any real interrogation of the coercive elements of conversion therapy on minors and how discomfort with one’s sexual orientation or gender identity is often a product of a climate of anti-LGBT discrimination and inequality that the Court seems disinclined to address.
Like in Skrmetti, where the Court focused on detransitioners rather than those young people who maintain a transgender identity, or Mahmoud, where it privileged parental rights and ignored the rights of children to access information, how LGBT children would fare if the state’s ban on conversion therapy was invalidated seemed to be an afterthought at the oral argument in Chiles. However the case is decided, it unfortunately seems likely that it will not be based on any real appreciation of the rights and well-being of young people who are sent to conversion therapy against their will, who find it psychologically damaging, or who seek it out because they are ashamed of their gender or sexuality and later come to regret that choice.
The post The Harms of Speech appeared first on Verfassungsblog.
(New York) – The Dominican Republic’s Constitutional Court has struck down provisions in the Codes of Justice of the National Police and the Armed Forces that criminalized consensual same-sex conduct by officers, Human Rights Watch said today. The ruling, made public on November 18, 2025, is a landmark victory for equality, ending a regime of state-sanctioned discrimination that violated the human rights of lesbian, gay, bisexual, and transgender (LGBT) officers.
In Judgment TC/1225/25, the court held that article 210 of the Code of Justice of the National Police and article 260 of the Code of Justice of the Armed Forces violate constitutional guarantees to nondiscrimination, privacy, free development of personality, and the right to work. Both articles punished same-sex “sodomy” by officers with up to two years and one year in prison, respectively. No equivalent penalties existed for heterosexual sexual acts.
More: https://www.hrw.org/news/2025/11/20/dominican-republic-court-ends-security-forces-gay-sex-ban
Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (2025 – 21 p. + 4 p.)
In the present report, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, Graeme Reid, examines barriers to the right to education faced by lesbian, gay, bisexual, transgender and other gender-diverse (LGBT) persons. LGBT learners are subject to multiple and intersecting forms of discrimination in educational settings, including bullying, exclusion, hostile environments, and punitive disciplinary measures. Transgender and gender-diverse students often face specific obstacles, such as the denial of gender recognition with respect to school records, uniforms and facilities. These experiences contribute to elevated dropout rates, poor academic performance and adverse mental health outcomes. The Independent Expert concludes with recommendations to States on how to ensure inclusive, safe and non-discriminatory learning environments that uphold the right to education for all, regardless of sexual orientation or gender identity.
Parliament passed a bill mirroring Russia’s anti-LGBTQ+ laws, drawing criticism from rights groups for putting the country’s LGBTQ+ community at greater risk.
1 min read
New Zealand bans puberty blockers for young transgender people
Critics warn move could have devastating impact on lives and wellbeing of those affected
Eva Corlett in Wellington, with ReutersWed 19 Nov 2025 23.39 CETShare
New Zealand has announced it is banning new prescriptions of puberty-blocking drugs for young transgender people, in a move that critics warned could worsen the mental health of those affected.
The step comes amid growing global debate about the number of adolescents seeking to change gender, dividing those concerned about hastiness in prescribing such medications and those worried about access to remedies they deem lifesaving.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 