Supreme Court Strikes Down Colorado’s Conversion Therapy Ban
High court rules Colorado’s law isn’t "viewpoint neutral" and that therapists’ speech is protected by the First Amendment.
The U.S. Supreme Court has struck down Colorado’s ban on conversion therapy for minors, siding with a Christian “talk therapist” who argued the law violated her First Amendment rights.
The 8-1 ruling doesn’t strike down, but effectively undermines conversion therapy bans in 22 other states and the District of Columbia by establishing a precedent in which therapists’ conversations with patients can be deemed a form of constitutionally protected speech.
The court found that Colorado’s law, though limited to licensed professionals, does not override free speech protections, and that the First Amendment protects therapists’ right to speak freely, even when their views conflict with government policy. Writing for the majority, Justice Neil Gorsuch said that “professional speech” is not a separate category and is entitled to protection.
“Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country,” Gorsuch wrote. “It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”
The case stems from a challenge brought by Kaley Chiles, a licensed counselor who says she offers “faith-informed counseling” to “voluntary clients” seeking help with issues related to sexual orientation or gender identity through “talk” therapy.
Chiles does not prescribe medication or perform physical treatments, but says she helps clients who seek to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] bod[ies].”
With backing from the anti-LGBTQ group Alliance Defending Freedom, Chiles sued over the law’s enforcement, arguing that Colorado’s ban on efforts to change a person’s sexual orientation or gender identity censors her ability to express views that do not affirm homosexuality or transgender identity.
She and her lawyers argued that the law — which does not prohibit therapists from providing “affirming” therapy for LGBTQ minors — is a viewpoint-based restriction on her free speech. Because the state disagrees with her views on gender and sexuality, the lawsuit claims, Colorado is silencing her and “forbidding her from discussing the values she and her clients share.”
A lower court sided with the state, finding the law regulated professional conduct, not speech. The 10th U.S. Circuit Court of Appeals upheld that decision, ruling the law only “incidentally” involved speech. Chiles’ lawyers then appealed to the Supreme Court, which agreed to hear the case before siding with her.
In a concurring opinion, Justice Elena Kagan, joined by Justice Sonia Sotomayor, wrote that Colorado’s law was “content-based” in its focus on anti-LGBTQ therapy, rather than viewpoint-neutral.
“Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things,” Kagan wrote. “As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way. Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.”
Justice Ketanji Brown Jackson, the lone dissenter, warned that the majority’s decision “opens a dangerous can of worms” by undermining states’ ability to regulate medical care — the same authority the court has previously upheld in allowing states to restrict gender-affirming care for minors.
“The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel,” she wrote.
Arguing that medical speech differs from general free speech — because patients rely on doctors for evidence-based advice — Jackson said the decision could put the health and well-being of many Americans at risk.
“In the worst-case scenario, our medical system unravels as various licensed healthcare professionals — talk therapists, psychiatrists, and presumably anyone else who claims to utilize speech when administering treatments to patients — start broadly wielding their new-found constitutional right to provide substandard medical care,” she wrote. “It is baffling that we could now be standing on the edge of a precipitous drop in the quality of healthcare services in America. But the Court sees fit to bring us one step closer to that fate today.”
While extreme forms of conversion therapy have included physical pain, psychological abuse, aversion techniques, induced vomiting, or even electroshock treatments, most practitioners — including Chiles — now focus on so-called “talk therapy,” in which therapists attempt to guide patients toward specific goals, such as reducing same-sex attraction.
Critics argue that treating therapists’ speech as protected expression could encourage practitioners to impose their own beliefs on patients under the guise of medical or mental health care. They also contend that conversion therapy is largely ineffective at achieving its stated goals — eliminating same-sex attraction or gender dysphoria — and puts those subjected to it at higher risk of depression, self-harm, or suicide.
A study by The Trevor Project found that people who reported being subjected to conversion therapy were more than twice as likely to attempt suicide — and to do so multiple times — compared to those who were not.
A more recent study found that conversion therapy — regardless of form — may also have physical health impacts. Research published in JAMA Network Open found that young adults assigned male at birth who underwent conversion therapy were three times more likely to be diagnosed with high blood pressure than those who did not. They also showed higher levels of inflammation and elevated blood pressure, both of which can contribute to poor heart health.
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