The Supreme Court on Tuesday heard a challenge to a Colorado state law that bans “conversion therapy” for minors that hinges on whether the state’s ban is so broad that it limits speech and religious expression, or if it is protecting vulnerable minors.
The case, Chiles v. Salazar, is a challenge to the state law by Christian therapist Kaley Chiles. She’s a licensed professional counselor in Colorado and said the law restricts her ability to communicate with clients.
The Minor Conversion Therapy Law, passed in 2019, banned state-licensed mental health professionals from providing conversion therapy to minors. The ban does not apply to someone who is engaged in “religious ministry.”
Chiles argues that the law violates her First Amendment free speech and religious exercise rights by controlling the language she uses to communicate with clients over sexual orientation or gender identity. She said she does not try to “convert” clients, but tries to help them with their “desires and objectives” for counseling, which can sometimes be to change sexual attractions and behaviors or to experience “harmony with one’s physical body.”
Oral arguments for the case were Tuesday. Lawyers presented conflicting arguments over whether therapy should be considered speech or conduct. If it’s considered speech, then a therapist’s views should be protected under the First Amendment. If therapy is considered as a treatment or conduct, it is subject to regulation by the state.
Here’s what was discussed:
Chiles’ argument
James A. Campbell, an attorney for Alliance Defending Freedom representing Chiles, argued that the state law bans minors from having voluntary conversations and censoring “widely held views on debated moral, religious and scientific questions.”
Campbell pointed to the Supreme Court’s 2018 decision in NIFLA v. Becerra, which ruled that California’s reproductive health state law violated the First Amendment and ruled in favor of protecting “professional speech.”
Campbell said the First Amendment depends on the “difference between speech and conduct, not the difference between treatment and non-treatment.”
He also said the law should be subject to strict scrutiny, a legal standard which requires the government to prove a policy is narrowly tailored to serve a compelling state interest.
Campbell argued Colorado does not believe the law should be subject to strict scrutiny, but if it were to only be subject to rational basis review, it would allow states to silence “all kinds of speech in the counseling room,” including other topics like divorce or abortion.
“If heightened scrutiny doesn’t apply, states can transform counselors into mouthpieces for the government,” he said.
Campbell also said the state cannot entirely say that conversion therapy or talk therapy about sexual expression and gender identity is harmful. The state can’t deny that some people have experienced “life changing benefits” from the kind of counseling Chiles wants to provide, he said.
Colorado’s response
Shannon Stevenson, Colorado’s state solicitor general, argued on behalf of the state. She noted that the Supreme Court has throughout history allowed states to regulate health care.
“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,” Stevenson said in her opening remarks.
Stevenson argued the law does not interfere with the First Amendment and does not stop a professional from expressing a view about treatment to the client or others. The state maintained the law only bans treatment and should not be overturned considering it is “reasonable regulation of professional conduct.”
The state pointed to a number of studies showing the harms of conversion therapy and said the plaintiffs didn’t present any evidence that it actually works. There is a “mountain of evidence” that it causes harm, she argued.
The state also argued that therapy should be considered conduct.
“The state cannot lose its power to regulate the very professionals that it licenses just because they are using words,” Stevenson said. “A health care provider cannot be free to violate the standard of care just because they are using words. And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.”
Strict scrutiny and free speech
Chiles and her lawyers say that she experiences discrimination since she changes the content of her speech with clients or must remain silent on certain issues under the law.
Under strict scrutiny, Colorado would have to show that the law furthers a compelling government interest, is narrowly tailored to achieve that interest, and uses the least restrictive means to achieve it.
Chiles and her lawyers argue that the state can’t prove that, but lawyers for the state said the case shouldn’t fall under strict scrutiny review. The state also said the law banning conversion therapy was written to be the least restrictive as possible.
Justice Sonia Sotomayor questioned Chiles’ lawyers why the high court should apply strict scrutiny to the case when the lower courts didn’t.
“Because there is ongoing harm every day. Mrs. Chiles is being silenced and the kids and families who want her help are unable to access it,” Campbell replied.
Other state laws
California was the first state to ban licensed health professionals in the state from conversion therapy practices in 2012. Since then, more than 20 other states have followed suit.
According to a July analysis from LGBTQ advocacy organization The Trevor Project and Movement Advancement Project, 23 states and the District of Columbia have banned conversion therapy for minors. Four states have restrictions on conversion therapy, while 18 states have no laws about the practice and five states prohibit laws from being created over conversion therapy.
The organizations noted that historically there has been widespread, bipartisan support against conversion therapy. Republican lawmakers have supported and helped pass legislation in 23 states.
In Utah, for example, where Republicans have a supermajority in the House and Senate, the state codified its conversion therapy ban in 2023. It was the first bill to pass both chambers unanimously and it enshrined the state’s existing administrative rule banning conversion therapy ban in 2020, but it also provided clarity to reduce ambiguity for therapists.
An earlier draft of the bill would have loosened the 2020 ban by saying “verbal or written communication” should not be included in the definition of conversion therapy. LGBTQ advocates opposed that draft, voicing similar concerns to Colorado’s ban, that it would allow talk therapy as forms of conversion for minors.
There are several other cases that include challenges to state bans, similar to Chiles’ challenge, based on free speech or religious grounds.
If the justices strike down Colorado’s law and find it unconstitutional, it would create a national precedent that lower courts would be required to follow.
Justices signal future decision
While the court doesn’t have to hand down a decision in the case until the end of its term in June 2026, the justices seemed to show their thoughts through their questions on Tuesday.
Sotomayor and the other liberal justices suggested during arguments that if the court decided the law should be subject to strict scrutiny, then it should be sent back to the lower courts for reevaluation.
Justice Ketanji Brown Jackson questioned how the case is different, or if it is “really just the functional equivalent” of the recent U.S. v. Skrmetti case involving Tennessee’s ban on transgender treatments. Jackson said she wanted to ensure that in both the Chiles and Skrmetti case, there is an “equivalence with respect to these things.”
The justices spent the bulk of their time questioning Stevenson and the state.
While Justice Brett Kavanaugh did not ask a question of either party, a majority of the court seemed to signal during arguments that it is prepared to rule against the ban and side with Chiles over the matter of free speech.
Chief Justice John Roberts pointed to previous rulings from the court that protected free speech in professional settings. He argued that just because professionals are engaged in conduct, “doesn’t mean that their words aren’t protected.”
Justice Amy Coney Barrett questioned the state about the evidence that talk therapy in this case causes harm, Justice Samuel Alito questioned Stevenson about the medical consensus Colorado says is behind its ban and asked if the medical advice had been politicized or “taken over by ideology.”
The court has, in recent years, sided with plaintiffs opposed by the LGBTQ community. Last term, the justices ruled 6-3 along ideological lines, to confirm in the Skrmetti case that a Tennessee law banning puberty blockers and hormone therapy for minors did not violate the 14th Amendment’s Equal Protection Clause and the care should be left up to states.
The justices will hear arguments in two more cases involving the treatment of transgender individuals this term.