Supreme Court Imposes Restraints on Laws Prohibiting Sexual Orientation/Gender Identity Change Therapy for Minors

The Supreme Court has imposed constitutional restraints on state laws that prohibit professional counselors from attempting to change a minor’s sexual orientation or gender identity. The 8–1 decision effectively restricts the scope of these measures, which were enacted in over half the states to protect children from a practice widely considered discredited and harmful.

Professional talk therapy aimed at altering sexual orientation or gender identity constitutes a "quintessential form of protected speech" under the First Amendment.

Court's Ruling

In the case of Chiles v. Salazar, Justice Neil Gorsuch's majority opinion determined that professional talk therapy aimed at altering sexual orientation or gender identity constitutes a "quintessential form of protected speech" under the First Amendment. The Court rejected the argument that speech carries fewer First Amendment protections when delivered as a medical treatment.

The opinion characterized Colorado's law, which only allows affirming LGBTQ+ identities but not critiquing them, as "viewpoint discrimination," making such laws "presumptively unconstitutional" and subject to strict scrutiny. The case was remanded to the appeals court to apply this legal standard.

Dissent and Concurrence

Justice Ketanji Brown Jackson issued a lone dissent, arguing that the Colorado law regulates treatment-related speech by medical professionals as part of a broader scheme to ensure high-quality medical care. She cited Planned Parenthood v. Casey, which allowed regulation of speech "only as part of the practice of medicine." Jackson expressed concern that the majority's decision appears to have ignored potential long-term implications for various medical regulations that involve speech.

Justices Sonia Sotomayor and Elena Kagan joined the majority but also penned a brief concurrence. They suggested that focusing on "viewpoint" rather than "content" discrimination might allow for a less rigorous review of other content-based speech restrictions in medical contexts, potentially mitigating broader impacts.

Implications and Concerns

Jackson's dissent highlighted potential inconsistencies, noting that anti-LGBTQ+ therapists now enjoy First Amendment protections denied to abortion providers. She also pointed out that parental rights to affirm transgender children with medication have been curtailed (as per Skrmetti), while the right to pursue "conversion therapy" for transgender children is strengthened. She questioned why anti-LGBTQ+ speech receives heightened protection compared to other medical advice, such as a doctor discouraging smoking or encouraging treatment for bone fractures.

The dissent warned of "catastrophic" fallout for medical licensure and malpractice laws. Jackson stated that if medical advice and treatments delivered through speech are now presumptively protected by the Constitution, regulations ensuring patient welfare, autonomy, and competent care could become unenforceable. This could lead to "unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers," potentially unraveling aspects of the nation's medical system.

If medical advice and treatments delivered through speech are now presumptively protected by the Constitution, regulations ensuring patient welfare, autonomy, and competent care could become unenforceable.