The Supreme Court heard oral arguments on October 7 in Chiles v. Salazar, a case challenging a Colorado statute that outlawed “conversion therapy” for minors. A Colorado therapist is arguing the ban violates her right to free speech and free exercise of religion, and a majority of the Court’s justices signaled support for the therapist’s position.   

What is this case about? 

• “Conversion therapy” refers to any therapy program or methodology that attempts to change an LGBTQ+ person’s sexual orientation or gender identity to match heterosexual or cisgender norms. This may include, among other things, talk therapy, faith-based counseling, or physical exercises such as aversive conditioning (attempting to create a negative association with an individual’s LGBTQ+ identity by exposing them to distressing stimuli like an electric shock or other painful sensations). Every major medical and psychological organization has condemned these practices as ineffective and harmful.
• 23 states and the District of Columbia have banned “conversion therapy.” 
• In 2019, Colorado enacted the Minor Conversion Therapy Law, which prohibits mental health professionals from counseling minors to change their “sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” The legislature cited high rates of depression, anxiety, suicidal thoughts, and suicide attempts among participants in “conversion therapy” as part of its justification for enacting the ban. A violation of this law carries a fine of up to $5,000.
• Kaley Chiles, a licensed therapist and practicing Christian, filed a lawsuit challenging the Colorado law, arguing it infringes on her First Amendment rights. Chiles says the law unconstitutionally prohibits her from working with clients who are “seeking to eliminate or reduce unwanted same-sex attractions, behaviors, or identity.”

What happened in the courts?

• A federal judge in Colorado rejected Chiles’s request to freeze implementation of the law, writing that it “neutrally regulates professional conduct and professional practices” and does not unconstitutionally target religious beliefs or the viewpoint of speech. 
• The U.S. Court of Appeals for the Tenth Circuit upheld the lower court’s ruling. Judge Veronica Rossman concluded that the Colorado law “is a regulation of professional conduct incidentally involving speech.” 
• Chiles petitioned the Supreme Court late last year, and the justices granted review this past March.

What did the parties argue at the Supreme Court?

• Chiles’s lawyer, James Campbell, urged the justices to strike down the law. He said the “conversion therapy” ban blocks therapists “from helping minors pursue state-disfavored goals on issues of gender and sexuality.” He also argued that upholding the law “would allow states to silence all kinds of speech,” and could “transform counselors into mouthpieces for the government.”
• Principal Deputy Solicitor General Hashim Mooppan represented the Trump administration at oral arguments, taking the same position as Chiles in this dispute. Although the federal government is not a party to the case, the Trump administration participated in the arguments as amicus curiae (“friend of the court”).
• Colorado’s solicitor general, Shannon Stevenson, argued that the “Court has recognized that state power is at its apex when it regulates to ensure safety in the healthcare professions. Colorado’s law lies at the bull’s-eye center of this protection because it prohibits licensed professionals from performing one specific treatment because that treatment does not work and carries great risk of harm. No court has ever held that a law like this implicates the First Amendment and for good reason.”

What were the key takeaways from the justices’ comments during the hearing? 

• The justices mainly grappled with the question of whether the Colorado law unconstitutionally infringes on freedom of speech or simply regulates professional conduct. 
  • Justice Samuel Alito called the law “blatant viewpoint discrimination.” 
  • Chief Justice John Roberts remarked, “Just because [therapists are] engaged in conduct doesn’t mean that their words aren’t protected.”
  • However, Justice Ketanji Brown Jackson said that the law “work[s] in basically the same way” as other regulations of medical treatments. 
• Also at issue during oral arguments was whether or not “conversion therapy” is effective and whether it harms patients.
  • Alito questioned whether medical consensus—which unanimously discredits the effectiveness of “conversion therapy”—can be trusted in a politically-charged issue like this. “Have there been times when the medical consensus has been politicized—has been taken over by ideology?” he asked.
  • Justice Sonia Sotomayor likened “conversion therapy” to a dietitian recommending unhealthy eating habits. “I don’t think the state has to provide a study to show that the advice is not sound,” she said.

What happens next?

• The Court’s conservative majority indicated some support for Chiles’s arguments, while the liberal justices are likely to side with Colorado. However, the outcome of the case was not immediately certain, as Justice Brett Kavanaugh—whose vote could be determinative—asked no questions during the hearing.
• The justices could also choose to delay a final decision in the case. Instead of striking down the law outright, they could find that the law regulates speech, not just conduct, which would subject it to heightened scrutiny in the courts. The justices could then send the case back to the district court to determine whether the law still withstands constitutional review. 
• A decision is expected in June.