Supreme Court Holds that Colorado’s Law Banning Conversion Therapy Infringed on Counselor’s First Amendment Rights
The Supreme Court’s 8-1 decision in Chiles v. Salazar addressed a constitutional challenge to a Colorado law that prohibited licensed mental health counselors from engaging in “conversion therapy” with minors. The case centered on Kaley Chiles, a licensed counselor who practices talk therapy—without medicine, medical devices, or physical methods—and whose approach assists clients to pursue self-determination goals, including on matters of sexual orientation and gender identity.
In 2019, Colorado enacted a law that prohibited licensed counselors from administering conversion therapy to minors. Conversion therapy was defined to the Court as a practice or treatment that attempts to change an individual’s sexual orientation or gender identity, and any efforts to alter same-sex attraction, behavior, or gender expression. The law did not ban counselors from providing “acceptance, support and understanding” for those exploring their identity and development.
After Colorado enacted its statute, Ms. Chiles challenged it in federal court, arguing the law violated her First Amendment rights by restricting what she could say to clients during counseling sessions. Both the district court and Tenth Circuit upheld the law, applying a “rational basis” level of review to determine whether the state had infringed on speech. Those courts reasoned that the ban regulated professional conduct and that the regulation of speech was merely incidental.
The Supreme Court accepted the case to resolve a conflict between the appellate court that heard Chiles and other federal courts that had considered talk therapy in the context of any First Amendment infringement. Depending on a law’s effects on speech, this informs which legal standard of review a court should apply.
The Court began its review by discussing First Amendment principles governing content-based and viewpoint-based regulations of speech. It reiterated that laws regulating speech based on content are presumptively unconstitutional and are ordinarily subject to strict scrutiny, since viewpoint discrimination is a strongly disfavored form of regulation.
Colorado argued the law regulated professional conduct with incidental effects on speech and was within a long tradition of state regulation of medical practice, informed consent, and malpractice. The Court rejected Colorado’s argument that the statute regulated professional conduct with only incidental effects on speech. As applied to Ms. Chiles, the Court concluded that Colorado’s law directly governed the content and viewpoint of what she could say to clients, drawing distinctions between speech that allowed her to express support and acceptance for clients exploring their identities or undergoing gender transitions, but prohibiting her from saying anything that attempted to change client gender expressions or romantic behaviors.
The Court further explained that speech does not lose First Amendment protection simply because it is delivered by a licensed professional. Relying on prior First Amendment cases, the Court held that professional speech is generally entitled to the same constitutional protections as other speech, absent a recognized historical exception. It found that Colorado’s law did not fall within any established category where content-based regulations are traditionally permitted within professions, such as disclosure requirements for factual and noncontroversial information or laws regulating conduct that only incidentally burden speech. In this case, the Court reasoned the statute targeted speech itself, comparing it to speech for teaching or protesting, and regulated it in a way that favored certain viewpoints over others. The Court rejected the state’s arguments, concluding that the historical record did not support using a lower standard of review for Colorado’s law. It emphasized that licensing laws traditionally regulate qualifications rather than dictate viewpoints, that informed-consent laws are tied to physical procedures and factual disclosures, and that malpractice liability requires proof of harm.
Because Colorado failed to establish a comparable tradition justifying this form of speech restriction, the Court held the law, as applied to Ms. Chiles, could not withstand strict scrutiny, the heightened level of First Amendment review. Therefore, the lower courts had erred in not applying strict scrutiny to determine if the state ban infringed on speech. The Supreme Court ultimately reversed the judgment of the Tenth Circuit and sent the case back for further proceedings consistent with its opinion.
Justice Jackson dissented, supporting the state’s interest in using its powers to regulate licensed healthcare providers from practices that can be ineffective or harmful, a fact that Ms. Chiles conceded can be true in certain circumstances. She concluded that “Colorado’s decision to restrict a dangerous therapy modality that, incidentally, involves provider speech [should not be] presumptively unconstitutional.”
Ultimately, this case does not strike down conversion therapy laws, which are on the books in 25 states. Rather, it is informative of the level of review courts should apply when determining whether – and to what degree – a law infringes on First Amendment speech rights.
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