Justices uphold family therapist’s free speech rights

Summary

• U.S. Supreme Court rules strict scrutiny applies to conversion therapy speech ban
• Court finds Colorado law regulates speech based on viewpoint
• Lower courts erred by applying rational-basis review
• Case remanded after resolving circuit split on therapy speech laws

The U.S. Supreme Court in an 8-1 decision has held that strict scrutiny analysis applies to a First Amendment challenge to a state law barring “conversion therapy” of minors brought by a family therapist whose practice included counseling clients on issues regarding sexual orientation and sexual identity.

The petitioner in the case, Kaley Chiles, holds a master’s degree in clinical mental health as well as a counseling license issued by the state of Colorado. As alleged in her complaint, her practice includes counseling young people on their sexual orientation and gender identity. While some of her clients seek help with social issues or family relationships, others seek assistance on reducing or eliminating unwanted sexual attractions.

Chiles’ counseling on such matters is limited to talk therapy. Moreover, Chiles asserts that she respects her clients’ fundamental right of self-determination and only seeks to help them reach their stated objectives.

In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in “conversion therapy” with minors. Under Colorado Revised Statutes §12-245-224(1)(t)(V), conversion therapy is defined as including “any practice or treatment . . . that attempts … to change an individual’s sexual orientation or gender identity” and efforts “to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions toward individuals of the same sex.”

On the other hand, the law permits counselors to provide “[a]cceptance, support, and understanding for … identity exploration and development,” as well as assisting persons undergoing gender transition.

Chiles sued in federal court for injunctive relief, asserting the Colorado law infringed on her First Amendment right to free speech insofar as it applied to her talk therapy.

Both a federal judge and the 10th U.S. Circuit Court of Appeals rejected her challenge, concluding the Colorado law regulates professional conduct and only incidentally regulates speech. Applying rational-basis review, the lower courts denied Chiles her requested relief.

The Supreme Court reversed and remanded upon granting certiorari to resolve a circuit conflict concerning application of laws like Colorado’s statute to talk therapy. The court held that Colorado’s law banning conversion therapy, as applied to Chiles’ talk therapy, regulates speech based on viewpoint, and the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny.

Click here to read the full text of the U.S. Supreme Court’s March 31 decision in Chiles v. Salazar.

BULLET POINTS: “Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express. For a gay client, Ms. Chiles may express ‘[a]cceptance, support, and understanding for the facilitation of … identity exploration.’ §12–245–202(3.5)(b)(I). For a client ‘undergoing gender transition,’ Ms. Chiles may likewise offer words of ‘[a]ssistance.’ §12–245–202(3.5)(b)(II). But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it. The law forbids her from saying anything that ‘attempts … to change’ a client’s ‘sexual orientation or gender identity,’ including anything that might represent an ‘effor[t] to change [her client’s] behaviors or gender expressions or … romantic attraction[s].’ §12–245–202(3.5)(a). Colorado disputes none of this; neither does the dissent. …

“We do not doubt that the question ‘how best to help minors’ struggling with issues of gender identity or sexual orientation is presently a subject of ‘fierce public debate.’ But Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

— Justice Neil M. Gorsuch, joined by Chief Justice John G. Roberts Jr., and Justices Clarence Thomas, Samuel A. Alito Jr., Sonia Sotomayor, Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett, opinion of the court

“The Court today decides that the Colorado law challenged here, as applied to talk therapy, conflicts with core First Amendment principles because it regulates speech based on viewpoint. I agree. I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question. …

“Medical care typically involves speech, so the regulation of medical care (which is, of course, pervasive) may involve speech restrictions. And those restrictions will generally refer to the speech’s content. But laws of that kind may not pose the risk of censorship — of ‘official suppression of ideas’— that appropriately triggers our most rigorous review. And that means the ‘difference between viewpoint-based and viewpoint-neutral content discrimination’ in the health-care context could prove ‘decisive.’ Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one.”

— Justice Elena Kagan, joined by Justice Sonia Sotomayor, concurring

“[Chiles] does not dispute that conversion therapy can be harmful to minors in certain circumstances. Nor does she contest that Colorado has a significant interest in protecting minors from harm. Chiles complains nevertheless that, because the particular form of conversion therapy she wants to offer clients utilizes only speech, the First Amendment prevents Colorado from prohibiting that treatment. But ‘[t]he power of government to regulate the professions is not lost whenever the practice of a profession entails speech.’ And ‘[m]edical professionals do not, generally speaking, have a right to use the Constitution as a weapon allowing them rigorously to control the content of … reasonable conditions’ that a State imposes on licensed healthcare providers for the protection of its residents.

“So, I respectfully dissent. Stated simply, the majority has failed to appreciate the crucial context in which Chiles’s constitutional claims have arisen. Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional. The Tenth Circuit was correct to observe that ‘[t]here is a long-established history of states regulating the healthcare professions.’ And, until today, the First Amendment has not blocked their way. For good reason: Under our precedents, bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.”

—Justice Ketanji Brown Jackson, dissenting