MADISON — The Wisconsin Supreme Court cleared the way Tuesday for the state to permanently enact a ban on in a ruling that gives the governor more power over how state laws are enacted.
The court ruled that a Republican-controlled legislative committee’s rejection of a state agency rule that would effectively of conversion therapy for LGBTQ+ people was unconstitutional. The decision, which has a broad impact far beyond the conversion therapy issue, takes power away from the Legislature to block the enactment of rules by the governor’s office that carry the force of law.
The 4-3 ruling from the liberal-controlled court comes amid the over LGBTQ+ rights. It is also part of a broader effort by the Democratic governor to rein in the power of the GOP-controlled Legislature.
What is conversion therapy?
What is known as conversion therapy is the scientifically discredited practice of using therapy to “convert” LGBTQ+ people to heterosexuality or traditional gender expectations.
The practice has been banned in 23 states and the District of Columbia, according to the Movement Advancement Project, an LGBTQ+ rights think tank. It is also banned in more than a dozen communities across Wisconsin.
Advocates seeking to ban the practice want to forbid mental health professionals in the state from counseling clients with the goal of changing their sexual orientation or gender identity.
agreed in March to hear a Colorado case about whether state and local governments can enforce laws banning conversion therapy for LGBTQ+ children.
What is happening in Wisconsin?
In both 2019 and 2020, the Wisconsin professional licensing board for therapists, counselors and social workers proposed a rule that listed conversion therapy as “unprofessional conduct.”
But the Legislature’s powerful Joint Committee for the Review of Administrative Rules — a Republican-controlled panel in charge of approving state agency regulations — twice, most recently in 2023.
The rule was in effect briefly in 2022 and took effect again in April 2024 when the Legislature adjourned without permanently suspending it.
Republicans who supported suspending the conversion therapy ban have insisted the issue isn’t the policy itself, but whether the licensing board had the authority to take the action it did.
The Supreme Court ruled that the legislative committee has been overreaching its authority in blocking a variety of state regulations during Democratic Gov. Tony Evers’ administration.
The court’s ruling means the Legislature will not be able to block it again.
Evers called the ruling “incredibly important” and said it will stop a small number of lawmakers from “holding rules hostage without explanation or action and causing gridlock across state government.”
But Republican Sen. Steve Nass, co-chair of the legislative committee in question, said the ruling gives Evers “unchecked dominion to issue edicts without legislative review that will harm the rights of citizens.”
Legislative power weakened by ruling
The Legislature’s attorney argued that decades of precedent backed up their argument, including a 1992 Wisconsin Supreme Court ruling upholding the Legislature’s right to suspend state agency rules.
Evers argued that by blocking the rule, the legislative committee is taking over powers that the state constitution assigns to the governor and exercising an unconstitutional “legislative veto.”
The Supreme Court agreed.
The court found that the Legislature was violating the state constitution’s requirement that any laws pass both houses of the Legislature and be presented to the governor.
The Legislature was illegally taking “action that alters the legal rights and duties of the executive branch and the people of Wisconsin,” Chief Justice Jill Karofsky wrote for the majority. She was joined by the court’s three other liberal justices.
Conservatives decry ruling
Conservative Justice Rebecca Bradley said the ruling “lets the executive branch exercise lawmaking power unfettered and unchecked.” She and fellow conservative Justice Annette Ziegler said in dissents that the ruling shifts too much power to the executive branch and holds the Legislature to a higher legal standard.
“Progressives like to protest against ‘kings’—unless it is one of their own making,” Bradley wrote.
Conservative Justice Brian Hagedorn, in a dissent, said the court’s ruling is “devoid of legal analysis and raises more questions than it answers.”
Hagedorn argued for a more narrow ruling that would have only declared unconstitutional the legislative committee’s indefinite objection to a building code rule.
The issue goes beyond conversion therapy
The conversion therapy ban is one of several rules that have been blocked by the legislative committee. Others pertain to environmental regulations, vaccine requirements and public health protections.
The full impact of the ruling was still being reviewed, a spokesperson for the state licensing board said.
Environmental groups hailed the ruling.
The decision will prevent a small number of lawmakers from blocking the enactment of environmental protections passed by the Legislature and signed into law, said Wilkin Gibart, executive director of Midwest Environmental Advocates.
The court previously in one issue brought in the lawsuit, ruling 6-1 last year that another legislative committee was illegally preventing the state Department of Natural Resources from funding grants to local governments and nongovernmental organizations for environmental projects under the Knowles-Nelson Stewardship Program.
