The Supreme Court on Tuesday sent a challenge to Colorado’s ban on “conversion therapy” – treatment intended to change a client’s sexual orientation or gender identity – for young people back to the lower courts for them to apply a new standard. By a vote of 8-1, the justices agreed with Kaley Chiles, the licensed counselor challenging the law, that the ban discriminates against her based on the views that she expresses in her talk therapy. A federal appeals court, Justice Neil Gorsuch wrote for the majority, should have applied a more stringent standard of review, known as strict scrutiny, to determine whether the law violates the First Amendment as applied to Chiles. But the Supreme Court also strongly hinted that the ban would fail that test.
Justice Ketanji Brown Jackson was the lone dissenter. She emphasized that Chiles was “providing therapy to minors as a licensed healthcare professional.” And under the Supreme Court’s cases, Jackson continued, “bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.”
Chiles went to federal court in Colorado to challenge the constitutionality of the 2019 law and block Colorado from enforcing it against her. She contended that she did not attempt to “convert” her clients. Instead, she said, she merely tried to help them “with their stated desires and objectives in counseling, which sometimes includes clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body.”
A divided panel of the U.S. Court of Appeals for the 10th Circuit allowed the state to continue to enforce the law. The majority concluded that the conversion therapy ban simply regulated conduct – a licensed mental health professional’s treatment of a client – that also happened to involve speech. Therefore, the court of appeals concluded, it would review the ban using the least stringent test for constitutional challenges, known as the “rational basis” test – a relatively low bar, the court of appeals said, that the ban passed.
Chiles came to the Supreme Court in 2024, asking the justices to weigh in. On Tuesday, they reversed the 10th Circuit’s ruling and sent the case back to the lower courts for another look.
Gorsuch characterized the question before the justices as “a narrow one”: whether Colorado’s ban on conversion therapy violates the First Amendment as applied to the talk therapy that Chiles provides, and in particular whether the 10th Circuit was correct in applying “rational basis review” to the ban.
The Supreme Court, Gorsuch observed, “has long held that laws regulating speech based on its subject matter or ‘communicative content’ are ‘presumptively unconstitutional’” and therefore trigger strict scrutiny, which requires the government to show that a restriction on speech is narrowly tailored to serve a compelling government interest. “Under that test,” Gorsuch added, “it is ‘“rare that a regulation . . . will ever be permissible.”’”
The court has also acknowledged, Gorsuch continued, “the even greater dangers associated with regulations that discriminate based on the speaker’s point of view. When the government seeks not just to restrict speech based on its subject matter, but also seeks to dictate what particular ‘opinion or perspective’ individuals may express on that subject, ‘the violation of the First Amendment is all the more blatant,’” Gorsuch stressed.
The majority rejected the state’s contention that the conversion therapy ban targets conduct or medical treatments, rather than speech, and therefore should be subject to a more deferential standard of review. Although the ban “may address conduct—such as aversive physical interventions” – Gorsuch wrote, Chiles “seeks to engage only in speech, and as applied to her the law regulates what she may say,” as well as “what views she may and may not express.” “Colorado,” Gorsuch concluded, “does not regulate speech incident to conduct; it regulates ‘speech as speech.’”
Justice Elena Kagan joined the Gorsuch opinion, but she also penned a four-page concurring opinion that was joined by Justice Sonia Sotomayor. She agreed with the majority that “the Colorado law challenged here, as applied to talk therapy, conflicts with core First Amendment principles because it regulates speech based on viewpoint.” Kagan suggested, however, that “if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.”
In her 35-page dissent, Jackson contended that the Gorsuch opinion “finds, at bottom, that Colorado likely cannot legislate to protect the children of its State if, by doing so, it happens to keep state-licensed healthcare providers from saying what they want to say to minors. And the majority’s holding means, in effect, that just because Chiles is a talk therapist—and not, say, a surgeon—a State can be prevented from incidentally imposing reasonable restrictions on the treatments she provides. Our precedents do not compel this conclusion.”
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