Justices hear faith-driven free speech challenge to Colorado conversion therapy ban

WASHINGTON (OSV News) -- The Supreme Court heard oral arguments Oct. 7 in Chiles v. Salazar, a First Amendment challenge to a Colorado law banning professional counseling services that practice "conversion therapy" for minors, efforts intended to change a minor's gender identity that differs from the young person's biological sex or to change their sexual orientation.

Colorado's law on conversion therapy for minors, which passed in 2019, prohibits licensed physicians or other licensed mental health care providers from providing "conversion therapy" to minors, which the state defined as "efforts to change an individual's sexual orientation, 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."

Opponents of the law argue it restricts their ability to provide counseling to minors experiencing same-sex attraction or gender dysphoria, the feeling of distress that one's biological sex and gender identity are not aligned. But supporters of the law argue such treatments are discredited and so the ban shields children from treatments they might otherwise be forced to undergo by their parents or guardians.

Colorado licensed counselor Kaley Chiles filed a First Amendment challenge to the law, arguing it could impact her work with her clients, which Chiles said she considers an extension of her Christian faith.

Jim Campbell, chief legal counsel with Alliance Defending Freedom, the legal group representing Chiles, argued the counselor's one-on-one conversations with clients count as speech protected under the First Amendment.

"This is an ongoing, active dialogue," Campbell said. "That absolutely has to be protected by the First Amendment."

Justice Sonia Sotomayor questioned whether Chiles had standing to sue over the law, a legal term meaning ability to bring a case, as the talk therapy she provides differs from what the state has suggested it considers harmful conversion therapy, like electric shock treatment.

"The state is actively investigating our client," Campbell said, arguing, "Over the last few weeks, there have been anonymous complaints filed against my client, and those complaints are now being investigated by the state of Colorado for allegations that she's violating the very law that we're challenging. So we had a credible threat of enforcement."

During oral argument, Colorado Solicitor General Shannon W. Stevenson argued that there is a lack of evidence that conversion therapy has any effectiveness.

"People have been trying to do conversion therapy for 100 years with no record of success. There is no study -- despite the fact that people tried to advance this practice -- that has ever shown that it has any chance of being efficacious," Stevenson said.

Justice Elena Kagan did raise a hypothetical concern that the Colorado law could lead to the state improperly regulating speech, which she suggested would conflict with existing court precedent.

"If a doctor says, 'I know you identify as gay, and I'm going to help you accept that,' and another doctor says, 'I know you identify as gay, and I'm going to help you to change that,' and one of those is permissible, and the other is not, that seems like viewpoint discrimination," Kagan said.

Stevenson argued that was not the case and that "medical treatment has to be treated differently."

In a joint amicus brief filed on Chiles' behalf in the case, the U.S. Conference of Catholic Bishops, the Colorado Catholic Conference, and The Catholic University of America argued, "Counseling would be impoverished without a sphere of protection for speech."

"If the freedom of speech guaranteed by the First Amendment protects anything, it surely must protect the right to seek and provide advice on these critical questions of human existence," it said.

Twenty-three states and the District of Columbia prohibit licensed providers from doing conversion therapy, according to data from the Movement Advancement Project, an LGBTQ+ policy group, while another four states and Puerto Rico restrict it without an outright ban.

The case was among the first of the high court's new term, which started Oct. 6. A decision is expected by the end of the court's term, which typically ends in June.