SCOTUS to Determine if Colorado “Conversion Therapy” Ban Violates First Amendment

SCOTUS to Determine if Colorado “Conversion Therapy” Ban Violates First Amendment

On Monday, March 10, the U.S. Supreme Court agreed to review a case that could have blockbuster repercussions.

The case, Chiles v. Salazar, concerns a Colorado licensed professional counselor who wishes to provide services to Colorado youth suffering from gender dysphoria. But Colorado law forbids that counselor, Kaley Chiles, from providing any counseling (i.e. speaking) if it concerns the concept of a young person NOT seeking to affirm their transgender status. For example, if a young person who has transitioned from one sex to another is questioning that decision and approaches Chiles for guidance about potentially detransitioning, she is legally forbidden from providing that guidance.

The Christian Post has the story: Supreme Court agrees to hear legal challenge to Colorado’s ‘conversion therapy’ ban:

The United States Supreme Court has agreed to hear a legal challenge to Colorado’s law prohibiting licensed counselors from providing sexual orientation change efforts therapy for clients seeking their help.

In an orders list released Monday morning, the high court agreed without comment to hear the case of Kaley Chiles v. Patty Salazar et al., which challenges Colorado’s Minor Conversion Therapy Law.

The Alliance Defending Freedom, a religious freedom legal nonprofit representing Chiles, celebrated the court’s decision to hear oral arguments in the case.

ADF CEO Kristen Waggoner said in a press release on Monday that she believes state officials have “no business censoring private conversations between clients and counselors.”

“Colorado’s law prohibits what’s best for these children and sends a clear message: the only option for children struggling with these issues is to give them dangerous and experimental drugs and surgery that will make them lifelong patients,” stated Waggoner.

“We are eager to defend Kaley’s First Amendment rights and ensure that government officials may not impose their ideology on private conversations between counselors and clients.”

In 2019, Colorado passed the Minor Conversion Therapy Law, which prohibits what critics derisively call “gay conversion therapy” for minors, after multiple similar bills had failed in past years…

In September 2022, Chiles filed a legal challenge against the law, claiming that it violated the Free Speech Clause and Free Exercise Clause of the First Amendment of the U.S. Constitution.

A three-judge panel of the 10th U.S. Circuit Court of Appeals ruled 2-1 against Chiles last September, upholding an earlier district ruling in favor of Colorado’s therapy ban.

So, Kaley Chiles asked the Supreme Court to review the case, and now they have agreed to do so.

Chiles’ Petition to the Court, available for review here, makes the following arguments:

1. “[O]ver 20 states and 100 locales have enacted laws that silence counselors’ ability to express views their clients seek on a topic of ‘fierce public debate’—’how best to help minors with gender dysphoria.’ The Eleventh and Third Circuits have rightly concluded that such laws regulate speech. But the Tenth Circuit has now joined the Ninth in blessing censorship by labeling counseling speech ‘conduct.’ The Court should not allow this conflict to persist. Otherwise, counselors like Kaley Chiles and countless other professionals ‘who provide personalized services to clients’ or ‘who are subject to a … licensing and regulatory regime’ will have First Amendment protections in some states but not others. Constitutional rights should not depend on geographical happenstance.”
2.  “The decision below also conflicts with this Court’s decision[s], which [have] held that states lack the ‘unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.’ Nor can governments ‘say that just because a broadly applicable law that restricts speech also restricts conduct, the restriction on speech is merely incidental to the regulation of conduct.’ Here, the Tenth Circuit did just that and upheld censorship.”
3. “A growing body of research reveals how critical Chiles’s counseling is, especially for young people. Most minors who experience gender dysphoria become comfortable with their biological sex if they are not affirmed in a transgender identity. Some studies say 98 percent of gender dysphoric children will identify with their biological sex before adulthood…Other nations that initially adopted an ‘affirm only’ approach now caution against it—and, in some cases, ban the practice of affirming young peoples’ gender dysphoria…[But] many counselors won’t take clients struggling with gender dysphoria ‘because any topic but ‘affirming’ can be said to violate’ laws like Colorado’s…Chiles wants to provide that emotional support in an evidence-based manner that aligns with her and her clients’ shared convictions.”

Apparently, SCOTUS found these arguments convincing enough for them to take the case, which will now proceed to briefing “on the merits” and oral argument, probably in the fall.

One thing of note is that the dissent in the Tenth Circuit case (remember that case was decided 2-1) makes some good points:

The majority opinion holds, in essence, that speech by licensed professionals in the course of their professional practices is not speech, but conduct. Because, says the majority opinion, engaging in the practice of a profession is conduct (even if the practice consists exclusively of talking), any restriction on professional speech is just incidental to the regulation of conduct. In my view, and, more importantly, in the view of the United States Supreme Court, such wordplay poses a serious threat to free speech…

We are fortunate to belong to a society in which the freedom of speech protected by the First Amendment allows us to speak our minds free of government interference, to do so in every context, absent powerful reasons supported by historical practice and trustworthy study and experience. The issue in this case is whether to recognize an exception to freedom of speech when the leaders of national professional organizations declare certain speech to be dangerous and demand deference to their views by all members of their professions, regardless of the relevance or strength of their purported supporting evidence. As I understand controlling Supreme Court precedent, the answer is clearly no.

[emphasis in original]

Read the whole dissent. It is very good. Hopefully the Supreme Court will think so too.

We will keep you updated as this the case proceeds to merits briefing, oral argument, and ultimate disposition.

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