The U.S. Supreme Court ruled 8-1 on Tuesday that the First Amendment prohibits states from using their licensing power to prevent therapists from sharing particular viewpoints with patients, a decision that significantly weakens state-level bans on so-called “conversion therapy” for minors.
The court found that Colorado’s law, which prohibited licensed mental health providers from engaging in therapy aimed at changing a minor’s sexual orientation or gender identity, constituted unconstitutional viewpoint discrimination. While the ruling does not immediately strike down the law, the justices sent the case back to a lower court to determine if the regulation can survive the rigorous “strict scrutiny” legal standard.
“The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country,” Justice Neil Gorsuch wrote for the majority. Gorsuch argued that medical consensus is not static and that stifling professional speech could hinder progress in the field.
The case, Chiles v. Salazar, was brought by Kaley Chiles, a Christian licensed professional counselor in Colorado who sought to offer talk therapy to minors wanting to reduce same-sex attraction or feel more comfortable in their biological sex. Chiles argued the ban was a restriction on her free speech rights, while Colorado maintained it was regulating a treatment that medical experts have widely condemned as harmful.
Justice Ketanji Brown Jackson was the sole dissenter, reading portions of her opinion from the bench to signal deep disagreement. Jackson argued that Chiles was providing professional healthcare, not speaking “in the ether,” and warned that the ruling “opens a dangerous can of worms” by impairing the ability of states to regulate medical care.
Justice Elena Kagan, joined by Justice Sonia Sotomayor, concurred with the conservative majority but noted that a more narrowly tailored ban might be lawful. Kagan argued that the flaw in Colorado’s law was its inconsistency, as it allowed some forms of gender-related counseling while prohibiting others.
“It’s reassuring to have the court protect freedom of speech. While Colorado officials may honestly think that a boy can become a girl, our country was founded on the right to engage in healthy debate — even when the government disagrees with us,” said Chiles, in an article for Fox News.
“This ruling also helps protect the mental, physical and emotional health of our children. But Colorado’s law puts their health at risk. Specifically, this law required counselors like me to avoid conversations with young clients who wanted to realign their identity with their sex, while encouraging kids to reject their sex,” she added.
The ruling is a significant victory for the Trump administration, which had urged the court to protect the free speech rights of counselors. The decision is expected to impact similar bans currently in place in roughly 20 states and more than 100 localities across the United States.
However, the court noted that the ruling applies specifically to speech-based “talk therapy” and does not directly impact the power of states to regulate medical interventions such as surgery or prescription drugs. Last year, the court upheld the power of states to ban doctors from prescribing hormone therapy or puberty inhibitors for minors.
LGBTQ advocates expressed concern that the ruling would leave vulnerable youth ‘unprotected’. Shannon Minter, legal director of the National Center for LGBTQ Rights, predicted a period of “indeterminacy” but noted that such practices could still be challenged as malpractice or consumer fraud, which the court indicated are not shielded by free speech concerns.
Conversely, the Alliance Defending Freedom (ADF), which represented Chiles, hailed the decision as a “monumental” win for families and “common sense.”
The phrase ‘conversion therapy’ came into being to describe some coercive and abusive practices in the past which were widely rejected by major medical, psychiatric, and psychological organizations, which have linked sexual orientation change efforts to depression and suicidal ideation.
But the term has been expanded over the years to include approaches such as that taken by Chiles who engaged in consensual verbal therapy, often with fellow Christians.
The law restricts licensed counselors from saying anything to clients under the age of 18 that “attempts or purports to change an individual’s … gender identity.”
However, critics have noted that the law enables counselors to “assist” anyone who is “undergoing gender transition” meaning that counselors may push young clients toward a gender identity different from their sex, which will often lead to harmful drugs and procedures.
More than 20 states have passed similar laws targeting counselors’ speech and they too could be impacted by the final outcome of Tuesday’s ruling.
Tuesday’s ruling marks the latest in a series of Supreme Court cases addressing transgender rights and professional speech, with further decisions on transgender participation in sports expected by late June.