The U.S. Supreme Court on Tuesday sided with a conservative Christian counselor who argued that Colorado’s 2019 law banning “conversion therapy” for LGBTQ+ minors may violate her First Amendment right to free speech.
The court’s 8-1 opinion, authored by Justice Neil Gorsuch, holds that the Colorado law seeks to “regulate speech based on viewpoint,” and therefore a legal standard known as “strict scrutiny” must be applied to it. The decision sends the case back to a lower court to apply that standard and determine the law’s constitutionality.
“The First Amendment stands as a bulwark against any effort to prescribe an orthodoxy of views, reflecting a belief that each American enjoys an inalienable right to speak his mind and a faith in the free marketplace of ideas as the best means for finding truth,” Gorsuch wrote. “Laws like Colorado’s, which suppress speech based on viewpoint, represent an egregious assault on both commitments.”
Gov. Jared Polis, who signed House Bill 19-1129 into law in 2019, said in a statement Tuesday that he was “evaluating the U.S. Supreme Court ruling and working to figure out how to better protect LGBTQ youth and free speech in Colorado.” Polis is the first openly gay man elected governor of a U.S. state.
States that protect youth from “conversion therapy”:
California Colorado Connecticut Delaware Hawaii Illinois Maine Maryland Massachusetts Michigan Minnesota Nevada New Hampshire New Jersey New Mexico New York Oregon Rhode Island Utah Vermont Virginia Washington Wisconsin“Colorado is for everyone, no matter who you are,” Polis said. “Conversion therapy doesn’t work, can seriously harm youth, and Coloradans should beware before turning over their hard-earned money to a scam.”
Therapist Kaley Chiles sued Colorado’s Department of Regulatory Agencies over the ban in 2022. According to a report from The Trevor Project and the Movement Advancement Project, at least 22 other states and the District of Columbia have passed laws to protect minors from conversion therapy, which could face similar legal challenges after the Supreme Court’s ruling.
HB-1129 banned licensed mental health professionals from engaging in any practice “that attempts or purports to change an individual’s sexual orientation or gender identity.” In federal court proceedings, Colorado had argued that such regulations fell within the state’s well-established authority to license and regulate the “professional conduct” of health practitioners.
For decades, major medical associations in the U.S. and around the world — including the American Psychological Association, the American Academy of Pediatrics and dozens of others — have concluded that conversion therapy is not effective in changing sexual orientation or gender identity, while worsening patients’ mental health and increasing rates of depression and suicidal ideation.
The Supreme Court ruling does not affect prohibitions on physical interventions like electroconvulsive therapy, the use of which on minors remains banned or regulated by Colorado and many other states.
But Chiles, a Colorado Springs resident, argued that the law’s attempt to regulate what she could tell her clients in talk therapy runs afoul of the First Amendment. She characterized the therapy she offered as “consensual conversations” responding to the voluntary “goals, desires and objectives” communicated by her minor clients.
Chiles was represented in the case by the Alliance Defending Freedom, the national conservative Christian group that has also successfully challenged two other Colorado laws that sought to ban anti-LGBTQ+ discrimination, in the Supreme Court cases 303 Creative v. Elenis and Masterpiece Cakeshop v. Colorado Civil Rights Commission.
“Like Chiles, these clients ‘believe their faith and their relationships with God’ inform ‘romantic attractions and that God determines their identity according to what He has revealed in the Bible,’” the plaintiffs’ petition said. “These clients believe their lives will be more fulfilling if aligned with the teachings of their faith, and they want to achieve freedom from what they see as harmful self-perceptions and sexual behaviors.”
Lone dissent
Gorsuch rejected Colorado’s argument that the law, in being applied to talk therapy, regulates “conduct, not speech.”
“In many applications, the State’s law banning ‘conversion therapy’ may address conduct — such as aversive physical interventions,” Gorsuch wrote. “But here, Ms. Chiles seeks to engage only in speech, and as applied to her the law regulates what she may say. Her speech does not become conduct just because the State may call it that.”
Conservatives hold a 6-3 majority on the nation’s highest court. Two liberal justices, Elena Kagan and Sonia Sotomayor, joined the majority in a concurring opinion, raising the specter of a law that instead sought to ban mental health care affirming gender identity changes.
“Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things … The First Amendment would apply in the identical way,” Kagan wrote. “Because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.”
In the court’s lone dissenting opinion, Justice Ketanji Brown Jackson wrote that under Colorado’s law, “treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.”
“It is not at all clear how, or to what extent, state regulation of medical care involving practitioner speech can survive this holding,” Jackson wrote. “What’s next? In the worst-case scenario, our medical system unravels as various licensed healthcare professionals — talk therapists, psychiatrists, and presumably anyone else who claims to utilize speech when administering treatments to patients — start broadly wielding their newfound constitutional right to provide substandard medical care.”
In a statement, Colorado Attorney General Phil Weiser said he strongly disagreed with the court’s ruling and that his office is “carefully reviewing the decision to assess its full impact on Colorado law and on our responsibility to protect consumers and patients.”
“To LGBTQ youth in this state and beyond: you are valued, you are worthy, and your health and dignity matter,” Weiser said. “We will continue to stand up for care grounded in science and for the rights of all children to grow up safe, supported, and respected.”
This story was originally produced by Colorado Newsline, which is part of States Newsroom, a nonprofit news network which includes NC Newsline, and is supported by grants and a coalition of donors as a 501c(3) public charity.
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