Supreme Court Rules Against Colorado Ban On Conversion Therapy For Minors

The Supreme Court ruled against a Colorado law banning “conversion therapy” for LGBTQ+ minors on Tuesday. The 8-1 decision sided with a Christian counselor, Kaley Chiles, who argued that the law violates her right to free speech.

The 2019 Colorado ban at the center of the case prohibits “a mental health care provider from engaging in conversion therapy with a patient under 18 years of age.” Banned practices are defined as “psychiatry that attempts or purports to change an individual’s 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.” Not banned are practices that provide “acceptance, support, and understanding.”

Chiles, who offers talk therapy, claims that she does not go into therapy sessions with a specific intention but instead plans treatment after hearing what clients are looking for, even if that includes conversion practices. The counselor has stated that she is against the outdated physical conversion practices, including shock therapy. Chiles’ attorneys argue that the 2019 Colorado law makes it hard for therapists to discuss gender identity with minors unless the counseling affirms transition or sexuality.

Related: Supreme Court Seems Skeptical About Bans On Conversion Therapy

Colorado contends that therapy is different from other types of speech because it is a type of health care, which the state has historically had the responsibility to regulate. The state also says that the law does not ban conversation about gender identity and sexuality but instead bars using therapy to try to “convert” minors to traditional gender identities and heterosexuality.

The Supreme Court, in its opinion, stated that this law raises free speech concerns and sent the law back to the lower courts for extensive judicial review—a process that laws typically do not survive. It is unclear, due to how specific this decision is to the wording of the Colorado ban, how it will affect other conversion bans throughout the country.

Conservative Justice Neil Gorsuch wrote the majority opinion, explaining that the Court does not hold “professional speech” as a category of speech that is subject to diminished constitutional protection. “The Constitution does not protect the right of some to speak freely; it protects the right of all. It safeguards not only popular ideas; it secures, even and especially, the right to voice dissenting views,” Gorsuch wrote.

Liberal-leaning Justices Elena Kagan and Sonia Sotomayor wrote a concurring opinion outlining that the Colorado law was flawed because it was a viewpoint-based restriction that worked to suppress certain ideas—the exact type of restriction that the First Amendment protects against. “A law drawing a line based on the ‘ideology’ of the speaker—disadvantaging one view and advantaging another—skews the marketplace of ideas our society depends on to discover truth. And such a law suggests an impermissible motive—that the government is regulating speech because of its own ‘hostility’ toward the targeted messages,” Justice Kagan wrote.

The concurring opinion was importantly a narrow one. Kagan and Sotomayor reasoned that this law is unconstitutional not because it is based on the content of therapists’ speech but because it was not neutral to the viewpoint of the therapists. This signals that both justices might not be averse to regulating medical speech just as long as it’s done in a way that doesn’t prefer one viewpoint over another.

Justice Ketanji Jackson, the sole dissenter, wrote a 35-page dissent outlining the harmful nature of conversion therapy that she believes the court overlooked. “First, conversion therapy stigmatizes the patient, telling them that their gender identity or sexual orientation is something to be fixed, rather than accepted. This rejection can lead to shame and guilt, which in turn can cause long-term emotional distress. Second, conversion therapy sets patients up to fail by giving them an unattainable goal,” Justice Jackson wrote.

Additionally, Justice Jackson underscored the long-standing responsibility of the court to regulate the medical profession, which includes ‘medical speech’ “for the protection of public health.” In her dissent, Justice Jackson warned that this ruling lessens state power to regulate medical practices, which have always reflected the current medical scientific findings of the time. “Ultimately, 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. Largely due to such State regulation, Americans have been privileged to enjoy a long and successful tradition of high-quality medical care.”

Without the ability to regulate practices, such as talk therapy, to adhere to medical findings, Justice Jackson warns that this decision could trigger an avalanche of deregulation in the medical field. “We are on a slippery slope now: For the first time, the Supreme Court has interpreted the First Amendment to bless a risk of therapeutic harm to children by limiting the State’s ability to regulate medical providers who treat patients with speech. What’s next?”