The Supreme Court announced on Monday that it will hear Chiles v. Salazar, a challenge to a Colorado law preventing most mental health professionals from offering “conversion therapy” — a discredited method of counseling that attempts to turn LGBTQ patients cisgender and heterosexual (or at least make patients act that way) — to people under age 18.
The Colorado law at issue in Chiles prohibits licensed therapists from engaging in “any practice or treatment … that attempts or purports to change an individual’s sexual orientation or gender identity,” and it includes an exemption for counselors “engaged in the practice of religious ministry.”
According to a 2023 dissent by Justice Samuel Alito, 20 states plus the District of Columbia have laws restricting conversion therapy. As a federal appeals court that upheld Washington State’s law targeting this practice explained, “every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.”
The American Psychological Association, for example, says that conversion therapy “‘puts individuals at a significant risk of harm’ and is not effective in changing a person’s gender identity or sexual orientation.”
The Chiles case raises difficult questions under the First Amendment (if you want to read a deeper dive into these questions, I explore them here). In short, however, the central question is whether a restriction on what people can talk about with their therapist violates constitutional free speech protections.
The First Amendment, as many states with conversion therapy laws have argued, historically has not been understood to protect malpractice or similar misconduct by licensed professionals, even if that misconduct only involves speech. A lawyer cannot tell their client “nothing will happen to you if you go rob a bank” without risking professional sanction. Nor can a physician cite the First Amendment to avoid a murder trial if they tell a patient to “go drink a jug of arsenic.”
Much of the case will likely rest on the Court’s decision in NIFLA v. Becerra (2018), which provides ammunition to both sides of the Chiles case. NIFLA held that “speech is not unprotected merely because it is uttered by ‘professionals,’” so that’s certainly helpful language for proponents of conversion therapy. But NIFLA also said that “[s]tates may regulate professional conduct, even though that conduct incidentally involves speech,” and it added that regulations of professional malpractice “fall within the traditional purview of state regulation of professional conduct.”
It’s always a little dangerous to predict how the Supreme Court may decide a particular case, but this Supreme Court has a 6-3 Republican majority, and it has not been a strong defender of LGBTQ youth. Last December, the Court heard oral arguments in a case asking if states may ban many medical treatments for transgender people under the age of 18, and the Court’s Republicans appeared eager to uphold these bans.
Should the Court strike down Colorado’s law, it will need to wrestle with how to do so without eviscerating every state’s ability to sanction malpractice. If a state cannot prevent licensed therapists from engaging in controversial practices that are rejected by all of the relevant professional organizations, why can it sanction doctors who promote quack treatments for Covid-19? Or who spread false information about vaccines to their patients?
Colorado’s best shot at defending its law, in other words, is likely to point to the intolerable consequences of stripping states of their ability to sanction malpractice, at least when that malpractice results from a conversation between a patient and a client. But it is far from clear whether this Supreme Court will care about those consequences.
