Washington — The Supreme Court on Tuesday ruled in favor of a Colorado counselor who challenged a state law that bans “conversion therapy” for minors, ruling that lower courts failed to apply “sufficiently rigorous First Amendment scrutiny” in the case.
The high court ruled 8-1 that Colorado’s law, when applied to talk therapy provided by counselor Kaley Chiles, regulates speech based on viewpoint. Justice Ketanji Brown Jackson was the lone dissenter. She read her dissenting opinion from the bench.
The ruling reverses a decision from the U.S. Court of Appeals for the 10th Circuit that found the law did not violate Chiles’ free-speech rights. The appeals court instead concluded that it regulates professional conduct and only incidentally burdens speech.
The decision from the high court is a narrow one and does not overturn Colorado’s law outright. It requires the lower courts to apply the most stringent level of scrutiny when evaluating its constitutionality, one that sets a high bar for the state to meet.
“Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint,” Justice Neil Gorsuch wrote for the majority. “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 write that Colorado’s law doesn’t just regulate the content of Chiles’ speecy, but “goes a step further, prescribing what views she may and may not express.”
In her dissent, Jackson wrote that to do anything other than allow Colorado’s regulation of medical treatment “opens a dangerous can of worms.”
“It threatens to impair States’ ability to regulate the provision of medical care in any respect. It extends the Constitution into uncharted territory in an utterly irrational fashion. And it ultimately risks grave harm to Americans’ health and wellbeing,” she wrote.
Jim Campbell, chief legal counsel at the Alliance Defending Freedom who argued on Chiles’ behalf before the Supreme Court, cheered the ruling.
“Kids deserve real help affirming that their bodies are not a mistake and that they are wonderfully made. The U.S. Supreme Court’s decision today is a significant win for free speech, common sense, and families desperate to help their children,” he said in a statement. “States cannot silence voluntary conversations that help young people seeking to grow comfortable with their bodies.”
Chiles called the ruling a “victory for counselors and, more importantly, kids and families everywhere.”
Colorado’s ban on conversion therapy
Colorado is one of more than 20 states that have enacted restrictions on conversion therapy. Its measure, called the Minor Conversion Therapy Law, was enacted in 2019 and prohibits mental health professionals from engaging in any practice or treatment, including talk therapy, that attempts to change an individual’s sexual orientation or gender identity. Violators face fines of up to $5,000 and may be suspended from practicing or stripped of their license.
Several years after Colorado’s law went into effect, Chiles, a licensed counselor who performs “faith-informed” counseling when sought, sued state officials. She argued that the ban violates her free-speech rights by censoring her conversations with patients based on viewpoint and the content of those discussions.
She aims to engage in talk therapy with minors who want to “reduce or eliminate unwanted sexual attractions, change sexual behaviors or grow in the experience of harmony with [their] physical bodies.” Chiles argued that under Colorado’s ban, families and teens who want to address gender dysphoria by aligning identity and biological sex at birth cannot work with a licensed counselor to help reach that goal. But the measure does allow treatment that supports patients undergoing gender transition, Chiles’ lawyers said.
Colorado officials, though, said the law regulates medical treatments and practices provided by professionals licensed by the state. They argued it is part of a long history of states regulating the health care profession to protect patients from substandard or harmful treatment. Major medical associations have warned that practices aimed at trying to change a patient’s sexual orientation or gender identity are potentially harmful to young people and not supported by credible scientific evidence.
Lower courts had upheld Colorado’s law, finding that it regulates the professional conduct of mental health professionals, not their speech.
The decision from the Supreme Court joins a line of rulings that stand at the intersection of the free speech rights of religious parties and LGBTQ rights. The high court in 2015 legalized same-sex marriage and, five years later, ruled that a federal civil rights law prohibiting workplace discrimination based on sex extends to gay and transgender people.
But its conservative majority has in recent years also sided with plaintiffs who have raised religious objections to state and local measures. In its last term, the high court ruled in favor of a group of Maryland parents who wanted to opt their children out of instruction featuring storybooks that address gender identity and sexual orientation.
In another dispute from Colorado, the Supreme Court in 2023 found that the First Amendment prohibited the state from forcing a Christian graphic designer to express messages that were contrary to her closely held religious beliefs.
