Supreme Court sharply questions law banning conversion therapy
The Supreme Court sounded deeply skeptical Tuesday about a Colorado law banning conversion therapy for gay and transgender minors, suggesting the justices may scuttle the statute and similar restrictions in nearly 30 states.
A majority of the high court appeared sympathetic to an evangelical therapist whose attorney argued that the state ban infringes on the therapist’s free speech rights. She wishes to counsel religious teens dealing with their sexual orientation and gender dysphoria in ways she says are consistent with biblical teachings on identity.
“It’s like blatant viewpoint discrimination,” Justice Samuel A. Alito Jr. said of the law.
Most of the court’s conservative justices expressed doubts that the law could avoid colliding with the free speech rights of therapists. So, too, did Justice Elena Kagan, who echoed Alito’s concern about discriminating among different views, which the First Amendment generally prohibits the government from doing.
The case is the first major one of a new term that promises to be consequential for gay and transgender rights. In the coming months, the justices will weigh the legality of state laws banning transgender people from playing on girls’ and women’s sports teams at schools and universities. The Supreme Court has steadily rolled back protections for gay and transgender people in recent terms after legalizing same-sex marriage in 2015.
Kaley Chiles, a licensed therapist, filed a lawsuit in 2022 against Colorado’s ban on treatment intended to change the identity or behavior of gay and transgender people. The law was one of a wave that placed restrictions on the therapy in the 2010s as evidence mounted it was harmful.
Chiles said she does not want to convert gay and transgender teens, but wants to help those who wish to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body.”
She argues Colorado’s law discriminates against the views of Christian therapists like herself because it bars the therapy Chiles would like to offer, while allowing care that encourages gender transition. James A. Campbell, the chief legal counsel for the Alliance Defending Freedom, which is representing Chiles, said the law transforms “counselors into mouthpieces of the government.”
“States should not manipulate private conversations between counselors and private clients,” Campbell said.
Colorado Solicitor General Shannon W. Stevenson said the state is not restricting Chiles’s speech, but regulating her medical treatment. States have long been able to block substandard care to protect residents from harm, she said.
Most studies have shown conversion therapy is unsafe and ineffective, Stevenson said. Research has linked the treatment to depression, post traumatic stress disorder and higher rates of suicide among gay and transgender people. The American Medical Association, American Psychiatric Association and other major medical groups oppose its use.
“People have been trying to do conversion therapy for 100 years with no record of success,” Stevenson told the justices.
Stevenson’s emphasis on that medical consensus drew a sharp rejoinder from Justice Samuel Alito, who asked if there have “been times when the medical consensus has been politicized, has been taken over by ideology?”
In the 20th century, there was “a time when many medical professionals thought that certain people should not be permitted to procreate because they had low IQ,” Alito noted, harking back to a 1927 case in which the high court upheld a Virginia law that provided for involuntary sterilization of people considered intellectually impaired.
Liberal Justice Ketanji Brown Jackson, by contrast, appeared to back Colorado’s position that it was regulating Chiles’s professional conduct, saying “speech is the tool that is being used, just like in other medical treatments you have scalpels.”
She also pointed out that last term the court had deferred to Tennessee’s judgment that it could ban gender transition care for minors, but now, many on the court were questioning Colorado’s decision to regulate conversion therapy. She questioned whether that represented a double standard.
Her liberal colleague, Sonia Sotomayor, questioned whether Chiles had standing to sue over Colorado’s law, since neither she or anyone else had been found in violation of it.
The Supreme Court laid out a test for state laws regulating speech by medical professionals in a 2018 case that struck down a California law that required antiabortion “crisis pregnancy” centers to provide information about access to contraception and abortion.
The government must show a compelling interest to impose content-based regulation on professional speech and must narrowly tailor any such law, the court ruled. Nevertheless, the high court found the government could regulate professional conduct that “incidentally” treads on free speech rights.
Some lower courts have found conversion therapy laws violate First Amendment rights; others have ruled they are allowable regulations of professional conduct. Chief Justice John G. Roberts Jr. suggested a position bridging that divide.
“Just because they’re engaged in conduct doesn’t mean that their words aren’t protected,” Roberts said.
Hashim M. Mooppan, principal deputy Solicitor General, arguing on behalf of the Trump administration, said “professional medical treatment is not exempt” from the First Amendment. Colorado’s law clearly violated free speech rights, he said.
In Chiles’s case, a federal court denied her motion for a preliminary injunction, and a divided U.S. Court of Appeals for the 10th Circuit affirmed that ruling. The 10th Circuit concluded Chiles’s therapy is “undoubtedly … professional conduct,” not pure speech.
The case comes after recent setbacks for gay and transgender protections at the high court.
Over the summer, the justices ruled Tennessee could ban gender-transition treatments for minors. In another case last term, the high court ruled religious parents could pull their children from public school lessons involving storybooks on gay and transgender themes that conflict with their beliefs.
At the same time, the justices have expanded the rights of the religious.
In a 2o23 case, also from Colorado, the Supreme Court ruled free-speech protections shield some businesses from having to provide services to same-sex couples.
A year earlier, the justices found Washington state infringed on the First Amendment rights of a high school football coach whom it disciplined for praying on a school field.
The justices are expected to rule in the case by the end of the term this summer.
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