The U.S. Supreme Court said Colorado's law regulating conversion therapy for minors likely targets protected speech when applied to a licensed counselor's talk therapy.
What happened
The U.S. Supreme Court on Tuesday revived a Colorado counselor's First Amendment challenge to the state's ban on conversion therapy for minors, ruling that the law regulates speech based on viewpoint when applied to her talk-therapy practice.
The justices reversed the Tenth Circuit and sent the case back after faulting the lower courts for treating the statute as professional-conduct regulation subject only to rational-basis review. Justice Neil Gorsuch wrote for an eight-justice majority, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh and Amy Coney Barrett. Justice Kagan, joined by Justice Sotomayor, concurred, and Justice Ketanji Brown Jackson dissented.
Colorado's 2019 law bars licensed counselors from engaging in conversion therapy with minors, including efforts to change sexual orientation or gender identity, while allowing support for identity exploration and assistance for people undergoing gender transition. Kaley Chiles, a licensed Colorado mental-health counselor, sued in federal court for a preliminary injunction, bringing an as-applied pre-enforcement First Amendment challenge to the law as applied to her talk therapy.
The Court said the case reached it to resolve a circuit conflict over how the First Amendment applies to laws like Colorado's when they are applied to talk therapy. The lower courts found Chiles had standing but denied preliminary relief, reasoning that the law regulated professional conduct and burdened speech only incidentally.
The majority rejected that framing, saying Colorado's law allows some counseling messages while forbidding others that seek to change a client's sexual orientation, gender identity, behaviors, gender expression or romantic attractions. The majority said, "All she does is speak, and speech is all Colorado seeks to regulate." It also rejected Colorado's reliance on professional licensing, informed-consent and malpractice traditions as insufficient to place the restriction outside ordinary First Amendment scrutiny.
The dissent warned that the ruling could make speech-only therapies and other medical treatments involving practitioner speech effectively unregulatable and could threaten state oversight of medical care. On remand, the lower courts will have to reconsider Chiles' bid for a preliminary injunction under the more demanding First Amendment framework required by the Supreme Court.