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 emphasized that Chiles was “providing therapy to minors as a licensed healthcare professional.” And under the Supreme Court’s cases, Jackson continued, “bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.”
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.”
