WASHINGTON, D.C. — The U.S. Supreme Court has reversed a lower court ruling that upheld Colorado’s ban on conversion therapy for minors, sending the case back for further review and prompting renewed debate among legal scholars over the decision’s broader implications for LGBTQ+ rights and First Amendment law.
In Chiles v. Salazar, the Supreme Court reversed a ruling by the U.S. Court of Appeals for the 10th Circuit upholding Colorado’s ban on conversion therapy practices for minors as applied to a licensed mental health counselor, according to an article by Justia.
The case arose when licensed counselor Kaley Chiles filed suit in federal court against a law adopted by Colorado in 2019 prohibiting licensed counselors from engaging in conversion therapy with minors, as stated in a syllabus from the Supreme Court. Chiles raised a First Amendment challenge to the law as it applies to her talk therapy.
Colorado’s law defines conversion therapy to include “any practice or treatment . . . that attempts . . . to change an individual’s sexual orientation or gender identity,” as well as any “effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions toward individuals of the same sex.”
Chiles, who holds a master’s degree in clinical mental health and a state counseling license in Colorado, employs only talk therapy. Therefore, the justices regarded the law, as applied to someone like her, as a regulation of speech triggering strict scrutiny, according to Justia.
However, the court did not specify any First Amendment violations regarding the Colorado law, holding only that the U.S. Court of Appeals for the 10th Circuit used a too-deferential standard in reviewing the law.
The article’s author, Cornell Law Professor Michael C. Dorf, pointed out that the Chiles ruling, an 8-1 decision, was unusually lopsided, with two of the court’s three Democratic appointees voting alongside all of its Republican appointees.
Dorf noted that less than a year ago, the Supreme Court had divided fully on ideological lines in United States v. Skrmetti, a case in which all of the Republican appointees voted to permit Tennessee to ban gender-affirming medical treatment for minors, while all of the Democratic appointees dissented.
Dorf questioned why historically staunch liberal justices Sonia Sotomayor and Elena Kagan joined the Chiles ruling, asking whether they had softened in their support for LGBTQ+ rights. He said he does not believe that is the case.
“Instead, they appear to have been worried about an issue that figured prominently in the oral argument and that Justice Kagan (joined by Justice Sotomayor) flagged in a concurrence in Chiles: If a blue-state ban on conversion therapy for minors does not trigger strict scrutiny when applied to talk therapy, then neither would a red-state ban on talk therapy that supports LGBTQ+ minors in accepting their identity,” Dorf wrote.
Further, he explained, “A win for Colorado in Chiles could have given the Court’s blessing for those states to expand their prohibitions on gender-affirming care for minors to include talk therapy.”
“It is understandable that Justices Sotomayor and Kagan would join the majority in Chiles to avert the potentially greater evil of permitting red states to ban supportive talk therapy for LGBTQ+ minors, but what happened to their concern about turning the First Amendment into a deregulatory blunderbuss?” Dorf remarked.
Justice Kagan suggested a limited principle in her concurrence. According to her, Colorado’s conversion therapy ban is not merely content-based but viewpoint-based.
Kagan stated that professional speech regulations that are content-based are distinguished from those that are viewpoint-based, with the latter being more egregious.
Regulations that are content-based thus could be upheld under a different set of precedents that “recognize complexity and nuance.”
However, Dorf pointed out that content lines can blur into viewpoint lines, stating that “a facially viewpoint-neutral but content-based line may be viewpoint-based in operation or intention.”
As a practical matter, Dorf said he does not believe anything of major magnitude is immediately at stake. However, he said the core worry that motivated Colorado to adopt the challenged law in the first place was that socially conservative parents would pressure their children into conversion therapy.
“The law leaves open substantial opportunities for them to do so,” Dorf stated.
He continued, “State approval via licensure carries some weight. With or without pressure from parents, LGBTQ+ minors seeking treatment should be able to assume that anyone certified by the state as a healthcare professional follows best practices, and conversion therapy is not a best practice.”
Dorf noted that a remand of the case might show that the Colorado law satisfies the strict scrutiny imposed by petitioners such as Chiles.
However, he stated that “the overall tone of the opinion strongly indicates that a lower court decision to uphold the conversion therapy ban would result in yet another reversal by the Supreme Court.”
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