“There is irreparable harm going on right now,” attorney James Campbell, who argued on behalf of Chiles, said in response to a question from Justice Ketanji Brown Jackson. “Miss 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 Supreme Court now appears skeptical of bans on the practice. The conservative justices in the majority appeared to sympathize with a counselor who claimed that Colorado’s ban on conversion therapy violates her First Amendment rights to free speech. Among them was Justice Samuel Alito, who suggested that the state must treat therapists who practice conversion therapy on equal terms with those who help LGBTQ youth come to terms with their identity and/or orientation.
“It seems to me your statute dictates opposite results in those two situations based on the viewpoint expressed,” he concluded. Viewpoint discrimination rarely survives judicial scrutiny when challenged under the First Amendment. Alito’s framework, if adopted by the court, would effectively decide the case in Chiles’s favor. It is also based on an impractical and unrealistic view of the issue.
If the Supreme Court strikes down conversion-therapy bans, the results will be dire for gay and transgender Americans who will feel pressured by their families and/or communities to engage in dangerous and unscientific “treatments.” More ominously, such a ruling could also form the spear tip of a much broader assault on LGBTQ rights as they currently stand.
Among those whom Chiles treats are, in her words, “young people with various mental-health struggles, including issues related to trauma, personality disorders, addiction, eating disorders, gender dysphoria, and sexuality.” Some of those young clients “desire counseling—sometimes based on their faith—‘to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] physical body,’” she told the court, and she helps them pursue those “desires and objectives.”
Chiles sued the state in 2022 with the support of Alliance Defending Freedom, or ADF, a right-wing Christian legal organization. A federal district court and the Tenth Circuit Court of Appeals both rejected her claims, concluding that Colorado acted well within its authority to regulate medical practices in the state. Chiles and ADF then urged the high court to intervene, framing her as a victim of government censorship.
The state of Colorado strenuously opposed Chiles’s appeal. “If adopted, [Chiles’s] position would gut states’ power to ensure mental healthcare professionals comply with the standard of care,” the state warned in its brief for the court. “Moreover, because so much health care—regardless of the field—is delivered exclusively through words, [her] efforts to distinguish substandard treatment involving words from substandard treatment that does not involve words would destabilize longstanding and sensible healthcare regulation.”
In Skrmetti, the court said that the challenged law only had to survive the extremely lenient standard of rational-basis review, which would doom Chiles’s challenge in this case. “Can a state pick a side?” Barrett asked Stevenson. “I want to be clear, it’s not that the medical community says we just don’t know. It’s that there are competing strands, and some states like, say, Tennessee, which was the state at issue in Skrmetti, picks one side, [and] Colorado picks another side.”
Justice Brett Kavanaugh notably asked no questions during Thursday’s roughly 90-minute session. Justices Clarence Thomas and Neil Gorsuch appeared to lean in favor of siding with Chiles in full. But it was Alito who was the most forceful justice when it came to challenging Colorado’s law. Along the way, he also seemed to implicitly reject the notion of deferring to medical professionals’ expertise.
“Was there a time when many medical professionals thought that certain people should not be permitted to procreate because they had low IQs?” he asked. When Stevenson brushed off the question, he continued. “Was there a time when there were many medical professionals who thought that every child born with Down syndrome should be immediately put in an institution?” Alito asked.
The Supreme Court’s ruling in Buck encouraged eugenicists to pursue similar strategies nationwide; the Virginia law in question even influenced Nazi racial policies. One could read Buck as a warning for the court to not endorse pseudoscientific medical treatments with a proven track record of harmful effects on ideological grounds. Alito’s implication appears to be that the court should avoid deferring to state officials on these medical questions as well if it implicates a fundamental right.
The overwhelming medical consensus is that sexual orientation is an immutable characteristic. To suggest otherwise, ADF paraphrased from an academic paper to assert that “respected researchers of LGBT issues have long observed that ‘longitudinal, population-based studies’ show ‘changes in the same-sex attractions of some individuals over time.’” Those scholars filed a friend-of-the-court brief to accuse ADF of profoundly misinterpreting and misquoting their work.
The problem goes beyond merely misrepresenting academic research to the court. While the Supreme Court delivered multiple victories for LGBTQ rights over the past quarter-century, it never took the step of recognizing sexual orientation as a “suspect classification” under the Fourteenth Amendment’s equal protection clause. Laws targeting other suspect classifications, like race and religion, receive the highest level of judicial scrutiny when challenged in court.
If ADF gets the court’s conservative majority to say that sexual orientation isn’t an immutable characteristic, even in passing, then it would be a significant reversal for LGBTQ rights in future cases. Congress and the states would still be able to enact antidiscrimination protections for gay and lesbian Americans by statute, but the doors of the courts would close in places where lawmakers took no such steps.
The Supreme Court can resolve this case on other grounds, and it most likely will. The question is whether it will lose sight of the real stakes in this case—the well-being of the LGBTQ youth who will be pressured by unsympathetic families and communities to “change” their sexual orientation or gender identity through unproven and unscientific “treatments”—or the broader implications that a ruling for the plaintiff could have for LGBTQ rights in general. A decision will likely come in the first half of next year.
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