- The Supreme Court ruled 8-1 that states cannot restrict therapists’ speech based on viewpoint, sending Colorado’s conversion therapy law back to lower courts for further review.
- Utah’s conversion therapy law may be more legally defensible, but it could still face legal challenges.
- Some religious groups and organizations are celebrating the Supreme Court’s decision.
As of Tuesday, states cannot ban “conversion therapy,” a practice intended to change someone’s sexual orientation or gender identity.
In an 8-1 decision, the Supreme Court ruled that the First Amendment prohibits states from limiting what therapists and other professionals can discuss with clients.
Justice Ketanji Brown Jackson delivered the only dissenting opinion.
A Colorado therapist, Kaley Chiles, filed the lawsuit in 2022, challenging her state’s 2019 law. The law prohibits licensed counselors from engaging in conversion therapy with minors.
The issue stems from Colorado’s definition of conversion therapy. The state defined the term as “any practice or treatment ... that attempts ... to change an individual’s sexual orientation or gender identity” as well as any “effort to change behaviors or gender expressions to eliminate or reduce sexual or romantic attractions toward individuals of the same sex.”
In the Supreme Court’s decision, the justices wrote, “A law regulating the content of speech cannot avoid searching First Amendment review just because it mostly regulates non-expressive conduct. What matters is whether, in fact, the law regulates speech in the case at hand.”
“As applied to Ms. Chiles, Colorado’s law regulates the content of her speech and goes further to prescribe what views she may and may not express, discriminating on the basis of viewpoint,” they ruled.
The court’s decision does not strike down Colorado’s law. However, lower courts will now review the law again by applying judicial scrutiny.
A nonprofit law firm, the Becket Fund for Religious Liberty, released a statement on Tuesday celebrating the Supreme Court’s decision.
“Kids who want help accepting their bodies should be able to get it,” said Adèle Keim, senior counsel at Becket. “We’re glad the Court protected the right of counselors to help them.”
Becket said faith-based counselors help their young clients using a “cautious approach.”
“Colorado lets kids smoke medical marijuana and pays for mastectomies for teens who want them,” said Keim. “Now kids in Colorado who just want to keep the bodies they have can finally get the help they need.”
What does the ruling mean for Utah?
Shortly after Colorado passed its conversion therapy ban, Utah passed a similar law, which was signed into law by former Gov. Gary Herbert in 2020.
This law “looked just like the Colorado law that got struck,” Robin Wilson, a legal consultant for the Utah Senate, told the Deseret News.
In 2023, Rep. Michael Petersen, R-North Logan, sought to replace the law with something that would respect verbal therapy, based on his own experiences as a therapist.
The state needed a law that allowed therapists to “help [minors] think things through clearly,” he told the Deseret News.
“We didn’t want to squelch free speech in either direction,” he said.
His changes to the law passed unanimously. Based on that 2023 law, Utah defines conversion therapy as any practice or treatment intended to change a minor’s sexual orientation or gender identity.
It prohibits therapists from subjecting minor clients to physical discomfort, electric shocks, touching themselves or another individual, and engaging in physical self-harm or physical self-inflicted pain.
The state’s law also sets guidelines on what health care professionals can do. Without violating Utah law, they may:
- Be “neutral with respect to sexual orientation and gender identity.”
- Provide “a minor client with acceptance, support and understanding.”
- Provide “treatment to a minor client who is considering a gender transition in any direction, including exploration of the timing.”
- Facilitate “a minor client’s social support, ability to cope or the exploration and development of the minor client’s identity, including sexual orientation or gender identity.”
- Address “unlawful, unsafe, premarital or extramarital sexual activities in a manner that is neutral with respect to sexual orientation and gender identity.”
- Discuss “moral, philosophical or religious beliefs or practices.”
- Address “body-image issues, social pressures or sex or gender stereotypes.”
- Address “co-occurring mental health, neurological, developmental, trauma or family issues.”
- Help “a minor client to understand and assess the stages and timing of identity development.”
- Discuss “with a minor client’s parent or guardian the mental health or development of the child,” consistent with other laws, rules and orders.
- Assist “the minor client to understand the medical, social or other implications of decisions related to sexual orientation or gender identity.”
When asked if Wilson and Petersen were worried the law would be challenged given the Supreme Court’s recent ruling, Petersen and Wilson said they weren’t.
“In fact, we talked about whether the Supreme Court would ever have an issue with what we did, and we kept that in mind as we wrote this,” Petersen said. “We wanted to make sure that we protected people’s rights and that this wasn’t going to be struck down.”
Equality Utah, an LGBTQ civil rights organization that helped draft the state’s legislation, said they “remain optimistic” that Utah’s law can “withstand legal scrutiny,” in a statement to the Deseret News.
“Because Utah chose not to adopt copycat legislation and instead enacted a viewpoint-neutral framework, we believe it is well-positioned to remain in force following today’s ruling,” they said.