SCOTUS Skeptical Of Colorado ‘Conversion Therapy’ Ban In First Amendment Challenge
The Supreme Court on Tuesday appeared poised to rule in favor of a Christian counselor challenging Colorado’s ban on “conversion therapy,” with several justices expressing concern that the law may constitute viewpoint discrimination in violation of the First Amendment.
The case centers on Kaley Chiles, a counselor who seeks to help minors feel comfortable with their biological sex rather than affirming their gender dysphoria.
Her legal challenge targets the Colorado Minor Conversion Therapy Law (MCTL), passed in 2019, which defines “conversion therapy” as efforts to “change an individual’s sexual orientation or gender identity,” including behaviors and gender expressions. Similar bans are in place in nearly half of all U.S. states.
Arguments before the court focused heavily on whether the counseling is protected speech or regulatable conduct.
Alliance Defending Freedom Chief Legal Counsel James Campbell, representing Chiles, argued that the law effectively silences counselors aiming to help minors pursue “state-disfavored goals on gender and sexuality.” Campbell emphasized that the law “undermines the well-being of kids” by hindering counseling that aligns with the fact that “up to 90% of kids who struggle with [gender dysphoria] before puberty will work their way through it and realign their identity with their sex.”
Conversely, Colorado Attorney General Phil Weiser and Solicitor General Shannon Stevenson defended the MCTL, arguing that “conversion therapy” is “unsafe and ineffective.” Weiser warned that a First Amendment exception could be “dangerous,” stressing that the practice is “telling young people that who they are is not ok, leaving lasting harm.” Stevenson maintained that “conversion therapy” should be considered regulatable conduct, not protected speech, comparing it to “say[ing] the wrong advice to their patient.”
Several justices appeared troubled by the implications of the state’s position.
- Justice Neil Gorsuch pointed out that in the 1970s, homosexuality was professionally considered a mental health disorder, prompting Stevenson to concede that a state at that time could have banned talk therapy affirming homosexuality based on the then-prevailing “standard of care.”
- Justice Amy Coney Barrett questioned whether states can simply “pick a side” in a scenario of medical uncertainty, noting there are “competing strands” in the medical community on gender identity treatment. Stevenson repeatedly deferred to the “standard of care” but conceded that true medical uncertainty would “raise more significant questions.”
- Stevenson struggled to explain how a hypothetical law banning talk therapy that affirms a child’s gender identity—the inverse of Colorado’s law—would not infringe on free speech protections, which seemed to underscore the court’s concern about viewpoint discrimination.
State Enforcement and Medical Claims
The Department of Justice’s Principal Deputy Solicitor General Hashim Mooppan emphasized that the case is straightforward because “All that is happening here is speech,” and claimed there is “no evidence” for Colorado’s assertion that the practice is “unsafe and ineffective.”
Despite the state now claiming it does not intend to enforce the statute against Chiles, her counsel confirmed she has faced anonymous complaints alleging violation of the law in recent weeks.
Following the arguments, Campbell told reporters the court seemed “very receptive” to their points and “bothered by the law,” suggesting a likely favorable ruling for the petitioner.
Meanwhile, Weiser reiterated the state’s position, stressing that the harms from conversion therapy come from telling a young person, “‘You can change this innate thing about yourself,’ And they try and they try, and they fail, and they have shame, and they’re miserable.”
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