Supreme Court Rules Colorado Conversion Therapy Ban "Regulates Speech Based on Viewpoint"
The Supreme Court has issued a ruling concerning a 2019 Colorado law that banned conversion therapy for minors, finding that the law, as applied to a specific counselor, "regulates speech based on viewpoint." In an 8-1 majority decision, the Court supported arguments that the law raised First Amendment free speech concerns and returned the case to a lower court for further review.
The outcome has implications for similar bans on conversion therapy in approximately two dozen other U.S. states, though it does not immediately overturn them.
Background of the Colorado Law and Legal Challenge
Colorado enacted its law in 2019, aiming to protect gay and transgender youth from conversion therapy. This practice is typically defined as a treatment intended to alter a person's sexual orientation, gender identity, or gender expression.
Research from various organizations, including the Minnesota Department of Health, indicates that the practice is ineffective and has been linked to increased risks of depression, anxiety, high blood pressure, and suicide. Major medical organizations across the country widely reject conversion therapy, citing its ineffectiveness and potential for harm. The Colorado law included potential fines and license suspension for violations, though no sanctions had been issued under it.
The Legal Challenge
The law was challenged by Kaley Chiles, a licensed counselor in Colorado, who asserted that the ban violated her First Amendment rights. Chiles, an Evangelical Christian, described her practice as "faith-informed counseling" that was only provided when clients sought it out.
She clarified that her methods involved only talk therapy and did not include controversial practices such as electric shock therapy or drug-induced nausea. Chiles stated her work focused on assisting clients aiming to achieve comfort and peace with their bodies, and to discuss their sexual orientation or gender identity, including those seeking to "reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one's physical body." She was represented by Alliance Defending Freedom, a conservative legal organization.
Colorado maintained that its law permitted wide-ranging conversations about gender identity and sexual orientation and included exemptions for religious ministries. The state argued the measure simply barred using therapy to attempt to "convert" LGBTQ+ individuals to heterosexuality or traditional gender expectations, a practice described as scientifically discredited and linked to serious harm.
Colorado contended the law did not violate the First Amendment because therapy is a form of healthcare that states have a responsibility to regulate.
The Supreme Court's Decision
The Supreme Court, which reviewed oral arguments in October, ruled on the case Tuesday. The 8-1 majority found that the lower courts "erred by failing to apply sufficiently rigorous First Amendment scrutiny."
Court's Reasoning
Justice Neil Gorsuch, writing for the court, stated that the law "censors speech based on viewpoint."
"The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country."
Justices Elena Kagan and Sonia Sotomayor also supported Gorsuch's opinion. Justice Kagan noted that a state could not similarly ban talk therapy designed to affirm a minor’s sexual orientation or gender identity.
"Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward."
The Court's decision sends the case back to a lower court to determine if the Colorado law can meet a legal standard that few laws typically satisfy, effectively invalidating the ban as it was applied in Ms. Chiles's challenge.
Dissenting Opinion and Party Reactions
Justice Ketanji Brown Jackson issued the sole dissenting opinion. She referenced established legal precedents concerning state regulation of healthcare professionals and asserted that the majority did not fully grasp the context of Chiles's constitutional claims, emphasizing that Chiles provides therapy to minors in a professional capacity.
Justice Jackson's Dissent
Justice Jackson argued that states should be free to regulate healthcare, even if it involves incidental speech restrictions, and expressed concerns that the decision "threatens to impair states’ ability to regulate the provision of medical care in any respect."
Reactions from Parties
Upon the ruling, Ms. Chiles issued a statement:
"I look forward to being able to help them when they choose the goal of growing comfortable with their bodies. Counselors walking alongside these young people shouldn’t be limited to promoting state-approved goals like gender transition, which often leads to harmful drugs and surgeries."
Her attorneys argued that the ban had made it difficult for parents to find therapists willing to discuss gender identity with children unless the counseling affirmed transition.
Advocates for LGBTQ+ individuals criticized the ruling. Polly Crozier, director of family policy at Glad Law, stated:
"This is a dangerous practice that has been condemned by every major medical association in the country. Today’s decision does not change the science, and it does not change the fact that conversion therapists who harm patients will still face legal consequences."
Broader Implications for Other States
The Supreme Court's ruling is expected to influence the enforceability of similar conversion therapy bans in other jurisdictions nationwide. Approximately half of U.S. states have enacted such prohibitions for minors.
Minnesota Specifics
For instance, the ruling may affect some protections in Minnesota, which became the 21st state to prohibit mental health professionals from performing conversion therapy on young individuals in 2023. Minnesota's law also prevents medical assistance from covering the practice and prohibits deceptive advertising related to conversion therapy.
Legal director for Gender Justice, Jess Braverman, stated that while the ruling does not immediately overturn Minnesota's law, it creates an opportunity to challenge the state's ban on conversion talk therapy.
Braverman clarified that the ruling does not extend to other forms of conversion therapy, such as aversion therapy, which would remain banned if prohibited by the state. She added that medical professionals must still adhere to standards of care, and individuals harmed by conversion talk therapy retain options such as malpractice lawsuits. The ruling also does not affect the ban on medical assistance covering the procedure.
The Minnesota Queer Legislators Caucus expressed opposition to the ruling, stating concern that "queer youth and community members could be subjected to harm and violence." The caucus announced collaboration with the Minnesota Attorney General and state agencies to assess the decision's impact and defend Minnesota's protections.