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The Wisconsin Supreme Court cleared the way Tuesday for the state to institute a ban on conversion therapy.

The court ruled that a Republican-controlled legislative committee’s rejection of a state agency rule that would ban the practice of conversion therapy for LGBTQ+ people was unconstitutional.

The 4-3 ruling from the liberal-controlled court comes amid the national battle over LGBTQ+ rights. It is also part of a broader effort by the Democratic governor, who has vetoed Republican bills targeting transgender high school athletes, 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. Since April 2024, the Wisconsin professional licensing board for therapists, counselors and social workers has labeled conversion therapy as unprofessional conduct.

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.

The U.S. Supreme Court 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?

Since April 2024, the Wisconsin professional licensing board for therapists, counselors and social workers has labeled 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 — has blocked the provision twice.

The Wisconsin Supreme Court ruled that the committee has been overreaching its authority in blocking a variety of other state regulations during Democratic Gov. Tony Evers’ administration. That clears the way for the conversion therapy ban to be enacted.

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.

Evers has been trying since 2020 to get the ban enacted, but the Legislature has stopped it from going into effect.

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.

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 sided with Evers 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.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletters to get our investigative stories and Friday news roundup. This story is published in partnership with The Associated Press.

Wisconsin Supreme Court clears the way for conversion therapy ban to be enacted is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Chief Justice Jill Karofsky, shown here during oral arguments in January, wrote for four justices that laws empowering the Legislature's Joint Committee for the Review of Administrative rules violate the Wisconsin Constitution. (Screenshot/WisEye)

State laws that let a 10-member committee of the Legislature override regulations are unconstitutional, a majority of the Wisconsin Supreme Court ruled Tuesday.

The ruling hands the administration of Democratic Gov. Tony Evers a victory in an ongoing battle with the Legislature’s Republican leaders.

It also affirms that the state Legislature cannot renew its attempt to block regulations against conversion therapy for LGBTQ people, and appears to clear the way for an update of Wisconsin’s building code that was suspended nearly two years ago.

The ruling finds five statutes, granting power to the Legislature’s committee that reviews and periodically suspends administrative rules, violate the Wisconsin Constitution.

Taken together, wrote Chief Justice Jill Karofsky for the four justices making up the Court’s liberal wing, the statutes give the Joint Committee for the Review of Administrative Rules the power to effectively change state laws without going through the full legislative process.

“The ability of a ten-person committee to halt or interrupt the passage of a rule, which would ordinarily be required to be presented to the governor as a bill [to block the rule], is simply incompatible with Articles IV and V of the Wisconsin Constitution,” Karofsky wrote.

The Court’s three conservative justices took issue with the majority opinion, asserting that rulemaking itself involves legislative power and that Tuesday’s ruling improperly constrains the Legislature as the elected representatives of the people.

‘Legislative veto’ lawsuit 

The decision is the second to come from a lawsuit Evers filed in the fall of 2023, Evers v. Marklein, accusing the Republican leaders of the Legislature of exercising an unconstitutional “legislative veto” hampering the lawful powers of the executive branch to make administrative rules.

The Evers administration argued that five statutes granting JCRAR the power to review, object to and block rules before or after they are promulgated violate the state Constitution. Those include a law enacted in December 2018, after Evers was elected governor but before he took office, that allows the committee to lodge “indefinite” objections blocking a rule.

The Court majority agreed with the administration’s argument.

The Wisconsin Constitution requires that for a law to be enacted, it must pass both the Assembly and the Senate and then be presented to the governor to be signed or vetoed.

“By permitting JCRAR to exercise discretion over which approved rules may be promulgated and which may not, the statute empowers JCRAR to take action that alters the legal rights and duties of persons outside of the legislative branch” without going through the lawmaking process, Karofsky wrote.

The indefinite objection “prevents the agency from promulgating a rule unless the Legislature passes a bill enacting the rule,” she wrote. “Said another way, legislative inertia after an indefinite objection could permanently stop the promulgation of a rule.”

Evers, lawmakers, advocates praise Court’s ruling on regulations

The law allowing the committee to pause a rule for 30 days before it is promulgated “essentially allows JCRAR to capture control of agency rulemaking authority from the executive branch during the 30-day pause period,” Karofksy wrote.

The pause, which can be extended to 30 days “operates as a ‘pocket veto,’” she wrote. “Even if such an interruption is relatively brief, the constitution does not contemplate temporary violations of its provisions.”

Similarly, after the rule has been promulgated, JCRAR’s power to suspend it multiple times “means that even after promulgation, JCRAR could suspend a rule repeatedly in perpetuity with no other checks in place,” the chief justice wrote.

Clearing way for conversion therapy ban, new building code

In overturning the five statutes, the Court majority also revoked two earlier rulings that had affirmed some of JCRAR’s powers — one from 1992, upholding the committee’s temporary suspension of a rule, and the other from 2020, endorsing the power to suspend a rule multiple times.

Evers’ suit focused on two rules that JCRAR blocked, both produced under the umbrella of the state Department of Safety and Professional Services (DSPS).

One rule prohibited therapists from using discredited conversion therapy to try to change the sexual orientation or gender identity of LGBTQ people. It was adopted by the Wisconsin Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board.

“When the Board created new professional conduct rules banning conversion therapy, it exercised its statutory authority,” Karofksy wrote. “But when JCRAR objected to the rule it effectively blocked the Board’s authority” under Wisconsin law “to govern the professional conduct of its licensees.”

The conversion therapy rule was suspended in January 2023, but reinstated after the Legislature concluded its work for the 2023-24 session.

With “the multiple suspension provision,” however, Karofsky wrote, “JCRAR has the authority to suspend this rule again, in perpetuity.”

Another rule updated the state commercial building code to international standards set in 2021.

“The goal of these chapters is to protect the health, safety, and welfare of the public,” Karofsky wrote. JCRAR’s indefinite suspension of the code in 2023  “prevented DSPS from completing its statutory rulemaking duties,” she wrote.

Conservative justices object

Justice Brian Hagedorn, one of three members of the Court’s conservative wing, wrote an opinion that concurred with the majority on narrow grounds but dissented on finding the five laws at issue unconstitutional.

The JCRAR indefinite objection to the building code rule is unconstitutional under a 1992 Wisconsin Supreme Court ruling, Hagedorn wrote.

He argued that the conversion therapy rule is now outside the Court’s purview, however.

“This ethical rule is already in effect; it is no longer suspended,” Hagedorn wrote. “Since a ruling on JCRAR’s actions with respect to this rule would have no legal effect, this claim is moot, and we have nothing further to decide.”

Hagedorn criticized the decision’s far-reaching findings that whole statutes were unconstitutional, however. He said it also failed to grapple with arguments about the constitutional status of regulation by executive branch agencies.

“The effect of the majority’s decision is to greenlight executive alteration of legal rights and duties outside the lawmaking process while prohibiting legislative alteration of legal rights and duties outside the lawmaking process,” Hagedorn wrote.

Former Chief Justice Annette Ziegler and Justice Rebecca Bradley published separate sharply worded dissents.

Ziegler wrote that the majority ruling was the outcome of “this court’s misguided quest to restructure and unbalance our state government, culminating in even more power and control being allocated to the executive branch.”

“The legislature has delegated executive branch agencies broad rulemaking authority with the understanding that it will be able to oversee administrative rulemaking through JCRAR,” Ziegler wrote. “The majority now pulls the rug out from under the legislature…”

Bradley, invoking lyrics from Bruce Springsteen’s song “Badlands” in which the singer says “a king ain’t satisfied ‘til he rules everything,” charged that the majority “lets the executive branch exercise lawmaking power unfettered and unchecked.”

Her dissent offered a full-throated attack on the administrative state and executive branch regulatory authority.

“The majority invokes the Wisconsin Constitution to take power from the People’s elected representatives in the legislature and bestow it on the executive branch, empowering unelected bureaucrats to rule over the People,” Bradley wrote.

2025-07-08_SCOWI_Evers v Marklein – JCRAR

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