Supreme Court sides with therapist in challenge to Colorado’s ban on “conversion therapy”

Updated on March 31 at 3:08 p.m.

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. In his 23-page opinion, Gorsuch stressed that in cases like Chiles’, Colorado’s ban “censors speech based on viewpoint.” Because the First Amendment “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth,” Gorsuch continued, “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

Justice Ketanji Brown Jackson was the lone dissenter. She argued that the majority’s opinion “could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers.”

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. “’Viewpoint discrimination,’” Gorsuch said, “represents ‘an egregious form’ of content regulation, and governments in this country must nearly always ‘abstain’ from it.”

“Applying these principles,” Gorsuch continued, “we conclude that the courts below failed to apply sufficiently rigorous First Amendment scrutiny in this case.” First and foremost, Gorsuch wrote, although “the First Amendment protects many and varied forms of expression, the spoken word is perhaps the quintessential form of protected speech. And that is exactly the kind of expression in which Ms. Chiles seeks to engage.”

What’s more, Gorsuch added, the state “seeks to regulate the content” of that speech, barring Chiles from “speak[ing] in any way that attempts to change a client’s ‘sexual orientation or gender identity’—including a client’s ‘behaviors or gender expressions’—or in any way that seeks to ‘eliminate or reduce’ a client’s ‘sexual or romantic attraction or feelings toward individuals of the same sex.’”

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.’”

Gorsuch recognized that “Ms. Chiles remains free to say other things” – including criticism of the Colorado ban and encouraging clients “to seek advice from someone else” who is not a licensed therapist. “But true as all that may be,” Gorsuch emphasized, Chiles “cannot voice certain ‘perspective[s]’ the State disfavors when speaking with consenting clients. And, under our precedents,” Gorsuch wrote, “viewpoint restrictions like that are not subject to mere rational-basis review or intermediate scrutiny. Rather, they represent ‘an egregious form of content discrimination’ where First Amendment concerns are at their most ‘blatant.’”

Justice Elena Kagan joined the Gorsuch opinion, but she also penned a four-page concurring opinion that was joined by Justice Sonia Sotomayor. She called Chiles’ case a “textbook” example of viewpoint discrimination. A law that was the “mirror image of Colorado’s” – by prohibiting therapy affirming a young person’s sexual orientation or gender identity – would raise the same First Amendment concerns, Kagan said.

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.”

Jackson read from her 35-page dissent from the bench, a signal of how strongly she disagreed with Tuesday’s ruling. Colorado and 25 other states, she wrote, had banned conversion therapy for minors “based on the medical profession’s broad consensus that this medical treatment … is ineffective and harmful.”

There is no dispute, Jackson said, that states can regulate medical professionals. And when “a healthcare professional’s speech is not being targeted ‘as speech’ (because it conveys an idea) but is instead ‘incidentally’ restricted due to a State’s otherwise legitimate regulation of the medical treatments being offered to patients, heightened scrutiny is not warranted.” In this case, she insisted, “there is zero evidence that Colorado has engaged in the corrosive and illicit suppression of ideas that the First Amendment valiantly repels.” Instead, she argued, Chiles “is simply being held to the same standard of care that all other licensed medical professionals in that State must follow.”

“Ultimately,” Jackson concluded, “because the majority plays with fire in this case, I fear that the people of this country will get burned. Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want.” But the court “turns its back on that tradition,” Jackson said. “And, to be completely frank, no one knows what will happen now.”