Health and Fitness : Supreme Court justices skeptical of free speech limits in Colorado case

By Lindsey Toomer

Justices of the U.S. Supreme Court appeared skeptical of a Colorado law banning conversion therapy for minors, which a counselor in the state says violates her First Amendment right to free speech.

The court heard oral arguments in the case Tuesday. Conversion therapy is the practice of trying to change a person’s sexual orientation, such as to eliminate same-sex attraction, or gender identity. Conservative religious law firm Alliance Defending Freedom represents the plaintiff, Kaley Chiles, a Colorado Springs counselor who argues the Colorado law violates her right to free speech by prohibiting certain conversations related to gender and sexuality.  

The Supreme Court has a 6-3 conservative majority. Most of the justices in their questions appeared to doubt that Colorado’s law satisfies the free speech provision of the First Amendment, noting that a counselor who would affirm a minor’s sexuality or gender identity would not be subject to the same restrictions as a counselor looking to change them. 

Jim Campbell, chief legal counsel for Alliance Defending Freedom, said the talk therapy Chiles wants to offer is not considered conduct subject to regulation by the state because speech is the only aspect of the treatment. The state discriminates against Chiles based on her viewpoint because it would not prohibit a counselor from affirming a minor’s sexual orientation or gender identity, but it prohibits efforts to change them, Campbell said. 

“Aside from this law and recent ones like it, Colorado hasn’t identified any similar viewpoint-based bans on counseling,” Campbell said to the court. “These laws are historic outliers.” 

The court has deemed viewpoint discrimination a violation of free speech rights. 

Chiles’ petition to the Supreme Court says she is a practicing Christian who “believes that people flourish when they live consistently with God’s design, including their biological sex.” It says she views her career “as an outgrowth of her faith” and that many clients come to her because of her Christianity.

Chiles’ legal team frequently cited a 2018 case, National Institute of Family and Life Advocates v. Becerra, known as NIFLA, in which the court found that governments cannot require crisis pregnancy centers to post information about access to abortions under the First Amendment’s free speech clause. The case is the key precedent the team relies on, citing it about 30 times in its main Supreme Court filing. Alliance Defending Freedom represented the plaintiff in that case, too. 

“In this case, Colorado is violating the promise that this court laid out in NIFLA, which is that states should not manipulate private conversations between licensed professionals and clients,” Campbell said. 

About 25 states have laws in place that ban or restrict the practice of conversion therapy, and a ruling in favor of Chiles could upend enforcement of those laws. 

Hashim Mooppan, an attorney with the U.S. Department of Justice, which requested to participate in the case, also spoke in support of the plaintiff’s arguments before the Supreme Court. He reiterated the argument that the talk therapy Chiles wants to engage in is strictly speech protected by the First Amendment and not conduct subject to regulation. 

Denounced by medical organizations

The 2019 Colorado law in question prohibits licensed psychiatrists and mental health care providers from “engaging in conversion therapy” with patients under 18 years old. Providers who conduct conversion therapy are subject to disciplinary action from the appropriate licensing board, though Colorado Attorney General Phil Weiser said the state hasn’t taken disciplinary action against any providers since the law went into effect. 

The named defendant in the case is Patty Salazar, executive director of the Colorado Department of Regulatory Agencies. 

Conversion therapy has been denounced by major medical organizations including the American Medical Association, the American Psychological Association, the American Psychiatric Association and the American Academy of Child and Adolescent Psychiatry.

Colorado Solicitor General Shannon Stevenson argued before the justices that the law regulates medical conduct by a licensed therapist and concerns circumstances more narrowly defined than the professional conduct considered in NIFLA.

“The state cannot lose its power to regulate the very professionals that it licenses just because they are using words,” Stevenson said. “A health care provider cannot be free to violate the standard of care just because they are using words, and a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.” 

Chiles’ team offered no record of studies about, or mental health professionals willing to endorse, conversion therapy, Stevenson said. Unlicensed professionals like religious ministers and life coaches are permitted to conduct conversion therapy, Stevenson said, but therapists are not, because they offer a medical treatment regulated by the state.

But even liberal Justice Elena Kagan suggested the state law comes across as viewpoint discrimination.  

“If a doctor says, ‘I know you identify as gay, and I’m going to help you accept that,’ and another doctor says, ‘I know you identify is gay, and I’m going to help you to change that,’ and one of those is permissible, and the other is not, that seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination,” Kagan said. 

Stevenson pushed back on Justice Clarence Thomas’ notion that the state’s regulation is an illegal prior restraint on speech because, she said, it is not enforced unless someone files a complaint with the state licensing board. She said it “calls out a specific practice that violates the standard of care,” which she said has been done since the late 1800s. 

Several court cases related to LGBTQ+ discrimination in Colorado have made their way to the nation’s highest court. That includes one in which the Supreme Court said a Colorado web designer, who was also represented by Alliance Defending Freedom, does not have to make websites for same-sex couples, and another in which the court said a cake shop owner could deny a same-sex couple a wedding cake based on religious beliefs.

The court is expected to issue a ruling in the Chiles case in June.