Washington — The Supreme Court is set to convene Tuesday to consider a legal battle involving a Colorado law banning “conversion therapy” treatment for minors brought by a licensed counselor in the state, which she argues unconstitutionally censors her conversations about gender dysphoria and sexuality with young clients.
The plaintiff, Kaley Chiles, is a licensed counselor who performs “faith-informed” counseling when her clients seek it. Chiles, who is Christian, says she seeks to engage in talk therapy with young patients who want to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] physical body.” But she fears that doing so will put her in violation of Colorado’s law.
“They’re peering into the counseling room and intruding on these private counseling conversations,” Chiles told CBS News.
Chiles’ case is one of several raising hot-button issues that the Supreme Court will hear in its new term, which began Monday. In addition to weighing Colorado’s ban, the high court will also consider state laws banning transgender athletes from participating in girls’ and women’s sports, as well as a major voting rights dispute and where people with concealed-carry permits can bring handguns.
Colorado is one of at least 20 states that prohibit mental health professionals from engaging in “conversion therapy” with minors. Colorado defines “conversion therapy” as any practice or treatment, including talk therapy, that attempts to change an individual’s sexual orientation or gender identity, including efforts to “change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” Violators face fines of up to $5,000 per violation and may be suspended from practicing or stripped of their license.
The law took effect in 2019, and in 2022, Chiles filed a lawsuit against Colorado and its licensing officials, arguing that the law violates her free speech rights by censoring her conversations based on viewpoint and the content of them. She sought a court order preventing Colorado from enforcing the ban against her.
Colorado has not taken any disciplinary action against Chiles or any other licensed therapist for violating the ban, it said in court papers, and the state asserts that the talk therapy Chiles’ aims to provide wouldn’t defy its law because she expressly doesn’t seek to change a patient’s gender identity or sexual orientation.
A federal district court allowed Chiles’ suit to go forward but ruled against her, finding that Colorado’s law regulates the professional conduct of mental health professionals, not speech. The court also found that the state has legitimate interests in protecting young people from what it says is a “harmful and ineffective” treatment.
A divided federal appeals court upheld that decision, ruling that Colorado’s law only prohibits a mental health professional from engaging in the practice of conversion therapy. The court said the measure is a regulation of professional conduct that incidentally burdens speech.
In seeking the Supreme Court’s review, Chiles argued that her speech is being chilled because she has been forced to turn away clients seeking counseling that explore sexuality and gender identity. She is represented by the Alliance Defending Freedom, a conservative legal advocacy group.
“In general, the adolescents who are reaching out, asking for therapy might have a variety of concerns and issues that counseling can be helpful with. Many people who are struggling with issues of sex and sexuality also have co-occurring disorders all the way from suicidality to any other mental health challenge like anxiety, depression, et cetera,” Chiles said. “When I’m having to turn them away, they don’t get help that is helpful for any of those issues. They are just without a course to be able to offer true help to them from a professional.”
Chiles’ lawyers have argued that Colorado’s law prevents families and teens who want to address gender dysphoria by aligning identity and sex from working with a licensed counselor to help reach that goal. But under the measure, practices that provide assistance to patients undergoing gender transition are allowed, they said.
“It’s not the government’s role to peer into the counseling room and say some goals are permitted. Some goals are forbidden. Some speech is allowed. Some speech is forbidden,” Jonathan Scruggs, senior counsel at the Alliance Defending Freedom, said. “In this country, we let the people decide what information they want. We don’t let government bureaucrats decide. That’s really the choice before the court.”
Chiles’ lawyers also warned that if the law as applied to talk therapy is allowed, it could open the door to states imposing regulations on licensed professionals that could sweep up speech on all types of topics, like doctors discussing birth control or therapists encouraging divorce.
“Colorado’s principle is really like a government censorship free-for-all,” Scruggs said. “Their theory is any time you have professionals giving advice, the government has total discretion to either ban or compel speech in that context. Would some states ban counselors from encouraging divorce? Or using contraception or the reverse?”
But Colorado officials said there is a long history of states regulating the health care profession to protect patients from substandard treatment, and the First Amendment has never barred states from doing that. Colorado pointed to medical malpractice laws and other licensing regimes, which lawyers said have long covered mental health and other treatments performed with words.
“This is because these words are used by a professional in a fiduciary relationship, to provide individualized treatment based on specialized knowledge, for the sole purpose of promoting the patient’s health,” officials wrote.
Additionally, they have argued conversion therapy is ineffective and associated with depression, anxiety, loss of faith and suicidality, regardless of how it is performed. Major medical associations have warned that efforts to change a patient’s sexual orientation or gender identity are potentially harmful to young people and not supported by credible scientific evidence.
Colorado officials have also pushed back on Chiles’ claim that it is trying to tamp down on certain speech — discouraging gender transition — that it disfavors.
“The only thing that the law prohibits therapists from doing is performing a treatment that seeks the predetermined outcome of changing a minor’s sexual orientation or gender identity because that treatment is unsafe and ineffective,” they said in court papers.
Shannon Minter, legal director for the National Center for LGBTQ Rights, said the law leaves room for legitimate therapy.
“What’s prohibited by these laws is a very specific, very narrow set of practices, with the therapist trying to impose their own agenda on a minor patient, trying to seek a predetermined outcome,” he said.
Colorado lawyers and those backing the state warned that if Chiles’ prevails, it would destabilize longstanding health care regulation and gut states’ power to ensure mental health professionals adhere to the standard of care.
“If the court were to accept Chiles’ argument that any time there’s a professional regulation of medical care that applies to what a provider can and cannot say, that that’s a free speech issue, that those laws are automatically subject to strict scrutiny under the First Amendment, that would be a very revolutionary, dramatic change in the current legal landscape. It would put countless other types of medical and mental health regulations into jeopardy,” Minter said.
Both sides have cited the Supreme Court’s 2018 decision in a case involving a California law that required “crisis pregnancy centers” to provide certain notices to patients, which the high court found likely violated the First Amendment. In the majority opinion authored by Justice Clarence Thomas, the court wrote “speech is not unprotected merely because it is uttered by ‘professionals,’” and warned that regulating the content of professionals’ speech risks suppression of unpopular ideas.
The Trump administration is backing Chiles in the case, but told the Supreme Court in a filing that it should send the case back to lower courts for further proceedings. The Justice Department will participate in oral arguments Tuesday.
“Colorado is muzzling one side of an ongoing debate in the mental-health community about how to discuss questions of gender and sexuality with children,” Solicitor General D. John Sauer wrote in a filing. “Under the First Amendment, the State bears a heavy burden to justify that content-based restriction on protected speech.”
Federal appeals courts that have weighed state bans on conversion therapy have divided over their legality. The U.S. Court of Appeals for the 11th Circuit invalidated local restrictions in Florida in 2020, finding that “the First Amendment has no carveout for controversial speech.” But appeals courts in Philadelphia and San Francisco have upheld bans in New Jersey and Washington.
The Supreme Court in 2023 turned away a challenge to Washington’s law, leaving the ruling from the U.S. Court of Appeals for the 9th Circuit in place. Three justices, Clarence Thomas, Samuel Alito and Brett Kavanaugh, said they would have taken up the case.
In a dissenting opinion, Thomas wrote there is “little question” that Washington’s law regulates speech and implicates the First Amendment. He argued that under the measure, licensed counselors can only convey a “state-approved message of encouraging minors to explore their gender identities.”
A decision from the Supreme Court in Chiles’ case is expected by the end of June or early July.
Melissa Quinn is a politics reporter for CBSNews.com, where she covers U.S. politics, with a focus on the Supreme Court and federal courts.
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