First Amendment free speech challenge to MCL 330.1100a(20) & 1901a (HB 4616) (prohibiting licensed therapists from engaging in conversion therapy with a minor); Standing; Denial of injunctive relief; Likelihood of success on the merits; Whether the statute’s restrictions were “content-based”; Application of “strict scrutiny” analysis

[This appeal was from the WD-MI.] The court held that plaintiffs were entitled to a preliminary injunction enjoining enforcement of Michigan statutes (collectively referred to as HB 4616) that restrict a therapist’s speech when counseling minors seeking to orient themselves with their biological sex. Under MCL 330.1100a(20), therapists may counsel a minor “‘undergoing a gender transition.’” But they may not provide a minor “counseling to ‘change’ his ‘behavior or gender expression’ to align with his biological sex,” or they can lose their license. Plaintiff-Catholic Charities employs 16 such counselors who offer “talk therapy.” The other plaintiff had her own counseling practice. The district court denied plaintiffs a preliminary injunction, ruling that the therapy they provided constituted conduct, in the form of treatment, rather than speech. On appeal, the court first held that plaintiffs had standing to challenge HB 4616 where the speech involved “is at least arguably protected by the First Amendment” and they face a “credible threat of enforcement[.]” The State has expressed its intention to enforce this law. Next, the court declined to reserve ruling on this matter pending the resolution of a Supreme Court case involving the same issue. Turning to the merits, it determined that HB 4616 imposes “content-based” regulations on speech and “discriminates based on viewpoint—meaning the law permits speech on a particular topic only if the speech expresses a viewpoint that the government itself approves.” Because content-based restrictions are “presumptively invalid,” defendants had the burden of rebutting the presumption. The court stated that they did “not even attempt to identify any long-settled tradition of regulating speech in the same way that HB 4616 regulates it.” The court rejected their contention that “HB 4616 regulates ‘conduct’ rather than speech.” It concluded that, as “applied to these plaintiffs, . . . the Michigan law restricts speech, not conduct.” The court held that the law was subject to, and could not survive, strict scrutiny. Defendants had to “show that its restrictions on speech are the least restrictive means of achieving a compelling government interest.” They did not do so. They defined “their compelling interests at a high level of generality” and only made “a perfunctory attempt to show a ‘direct causal link’ between harm to those interests, on the one hand, and the speech proscribed by HB 4616, on the other.” Reversed and remanded for entry of a preliminary injunction.