(Reuters) – The U.S. Supreme Court heard arguments on Tuesday in a challenge on free speech grounds to a Colorado law banning psychotherapists from conducting “conversion therapy” that aims to change a minor’s sexual orientation or gender identity.
The dispute pits Colorado’s authority to forbid a healthcare practice it considers unsafe and ineffective against the rights of Christian licensed counselor Kaley Chiles, who challenged the law under the U.S. Constitution’s First Amendment protections against government abridgment of free speech.
Chiles appealed a lower court’s decision rejecting her claim that the 2019 statute unlawfully censors her communications with clients in violation of the First Amendment. The state has said it is regulating professional conduct, not speech.
“Colorado forbids counselors like Kaley Chiles from helping minors pursue state-disfavored goals on issues of gender and sexuality. This law prophylactically bans voluntary conversations censoring widely held views on debated moral, religious and scientific questions,” James Campbell, a lawyer for Chiles, told the justices during the arguments.
Lawyers for Chiles have pushed for Colorado’s measure to be assessed under the most stringent form of judicial review, known as strict scrutiny.
Colorado insists that its law is subject only to a lesser type of legal review, Campbell said. “Yet that would allow states to silence all kinds of speech in the counseling room such as disfavored views on divorce or abortion,” Campbell added.
At issue in the case, Campbell said, is “voluntary speech between a licensed professional and a minor.” If heightened scrutiny does not apply, Campbell told the justices, “states can transform counselors into mouthpieces for the government.”
Many people have experienced life-changing benefits from the kind of counseling that Chiles wants to provide, Campbell said.
“The First Amendment doesn’t permit Colorado’s censorship,” Campbell added.
Democratic Colorado Governor Jared Polis, the first openly gay man to be elected as a U.S. state governor and a critic of conversion therapy, signed the measure into law in 2019. Republican President Donald Trump‘s administration is backing Chiles in the dispute.
Colorado has urged the justices to uphold its law, citing the state’s interest in ensuring that minors receive safe and effective mental healthcare and arguing that states routinely regulate healthcare practices, including talk therapy, to guard against “substandard” care.
Shannon Stevenson, Colorado’s solicitor general, told the justices, “People have been trying to do conversion therapy for a hundred 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.”
Medical groups such as the American Psychological Association in court papers cited studies showing that the practice has been associated with a range of harms including an increased likelihood of transgender minors running away from home or attempting suicide.
Liberal Justice Elena Kagan told Campbell that this was an unusual case because there have been six years of no enforcement of the law – three before and three after the legal challenge was brought, and that the state entity charged with administering the law has said it would not apply the restrictions to the kind of therapy that Chiles conducts.
Kagan asked Campbell that, in light of that, how does Chiles have the legal standing to bright the lawsuit.
“They have not disavowed enforcement,” Campbell said.
‘IRREPARABLE HARM’
Hashim Mooppan, a Justice Department lawyer, also told the justices that the law must be subject to strict scrutiny.
Some of the justices asked Campbell and Mooppan about the possibility of the Supreme Court sending the case back to a lower court to apply that heightened level of legal scrutiny to the Colorado law.
Liberal Justice Ketanji Brown Jackson said applying strict scrutiny would not necessarily be fatal to the law.
“So why wouldn’t we give the lower courts a chance to evaluate whether there’s sufficient evidence here for the state to actually go forward with this regulation,” Jackson asked.
Campbell objected to that approach, saying that “there is irreparable harm going on right now.” He said Chiles “is being silenced. The kids and the families who want this kind of help that she’ll offer are being left without any support.”
The case thrusts the Supreme Court back into the U.S. culture wars and gives its 6-3 conservative majority another opportunity to elevate the interests of a conservative Christian litigant at the expense of protections for LGBT people.
Colorado is among more than two dozen states and the District of Columbia that restrict or prohibit conversion therapy for patients younger than 18.
Chiles has said she “believes that people flourish when they live consistently with God’s design, including their biological sex.” Colorado’s true aim with this law, Chiles has argued, is “to silence and marginalize views it dislikes.”
Colorado’s law prohibits licensed mental healthcare providers from seeking to change a minor’s sexual orientation or gender identity according to a predetermined outcome, with each violation punishable by a fine of up to $5,000. This includes attempts to reduce or eliminate same-sex attraction or change “behaviors or gender expressions.”
The law does permit treatments that provide “assistance to a person undergoing gender transition,” as well as therapies centered on “acceptance, support and understanding” for “identity exploration and development.”
Chiles sued Colorado officials in 2022 in an attempt to block the statute.
U.S. District Judge Charlotte Sweeney in 2022 ruled against Chiles, deciding that Colorado’s ban was a permissible regulation of professional conduct, not speech. The judge also found that conversion therapy is “ineffective and harms minors who identify as gay, lesbian, bisexual, transgender or gender nonconforming.”
The Denver-based 10th U.S. Circuit Court of Appeals upheld the judge’s ruling, prompting Chiles to appeal to the Supreme Court, whose ruling is expected by the end of June.
