The Supreme Court on Tuesday found that a Colorado law banning “conversion therapy” for gay and transgender minors probably violates free speech rights, the latest in a string of decisions by the high court rolling back protections for LGBTQ+ people and expanding the rights of the religious.
In an 8-1 ruling, an ideologically diverse majority ruled for an evangelical therapist who argued the state prohibition infringed on her First Amendment rights. Kaley Chiles said she wanted to counsel religious teens dealing with sexual orientation issues and gender dysphoria in ways consistent with biblical teachings.
The decision casts doubt on similar statutes in nearly 30 states that prohibit attempts to change the expressed sexual orientation or gender identity of youths. Many states passed the laws over the last decade as evidence grew that the treatment was harmful. Colorado argued it was not regulating free speech but outlawing substandard medical care — something courts have long allowed.
The justices reversed an appeals court ruling upholding Colorado’s law and sent the case back to the lower courts to apply a stricter standard that government restrictions on speech usually don’t survive.
Justice Neil M. Gorsuch wrote the opinion for the majority. Gorsuch said the Colorado law “censors speech.”
“Colorado may regard its policy as essential to public health and safety,” Gorsuch wrote. “Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”
Liberal Justices Elena Kagan and Sonia Sotomayor filed a concurring opinion saying that the Colorado law impermissibly regulates one particular viewpoint on gay conversion therapy for minors. “Because the State has suppressed one side of a debate while aiding the other, the constitutional issue is straightforward,” Kagan wrote for the pair.
Justice Ketanji Brown Jackson, the only justice to dissent, read her opinion from the bench in an indication of her strong disagreement with the majority. She said research shows that conversion therapy is bad medicine and that the court’s holding that it is protected by the First Amendment “opens a dangerous can of worms.”
“Ultimately, because the majority plays with fire in this case, I fear that the people of this country will get burned,” Jackson said from the bench.
She added in her written dissent, “Before now, licensed medical professionals had to adhere to standards when treating patients: They could neither do nor say whatever they want. Largely due to such State regulation, Americans have been privileged to enjoy a long and successful tradition of high-quality medical care. Today, the Court turns its back on that tradition.”
The ruling is the first of several this term that are expected to be consequential for gay and transgender rights.
Chiles, a licensed therapist from Colorado Springs, sued Colorado in 2022 over its Minor Conversion Therapy Law, which was passed in 2019. The law prohibits physicians or mental health professionals from providing therapy to young people that is intended to change “behaviors or gender expressions” or “eliminate or reduce sexual or romantic attraction” to the same sex.
Violating the law can result in a penalty of up to $5,000 and loss of a counseling license. Colorado officials say no one has been disciplined to date under the law.
In previous decades, conversion therapy has included techniques including talk, hypnosis, electric shocks and chemically induced nausea to try to change sexual orientation, gender identity or behavior.
Chiles said she does not want to convert gay and transgender teens but use talk therapy to help those who want to reduce unwanted attractions or change sexual attractions.
As she put it in a court filing, her potential clients “believe their faith and their relationships with God supersede romantic attractions and that God determines their identity according to what He has revealed in the Bible rather than their attractions or perceptions determining their identity.”
Chiles said she had to turn away a family whose child was struggling with sexual identity issues for fear of running afoul of Colorado’s conversion therapy ban. The family, which she said was struggling, had little recourse.
Chiles hailed the ruling at a news conference on Monday, saying it would give families more options.
“This ruling means Colorado cannot insert itself into the counseling room and silence important views that clients want to hear,” she said. “Colorado’s law hurts kids struggling with their gender most of all. …[It] encouraged counselors to push them down a path of so-called gender transition.”
Jaymes Black, CEO of the Trevor Project, which provides suicide prevention services to gay youths, said in a statement that the ruling will have devastating consequences for LGBTQ+ people.
“The Supreme Court’s decision to treat the dangerous practice of conversion therapy as constitutionally protected speech is a tragic step backward for our country that will put young lives at risk,” Black wrote. “These efforts, no matter what proponents call them, no matter what any court says, are still proven to cause lasting psychological harm.”
The American Medical Association, the American Psychiatric Association and other major medical groups oppose conversion therapy, and studies have linked it to depression, post-traumatic stress disorder, and higher rates of suicide among gay and transgender people.
Colorado Attorney General Phil Weiser denounced the ruling on Monday and said in an interview last year that he worries a ruling for Chiles on free-speech grounds could lead others to mount similar challenges to professional standards and consumer protections in other fields.
“It is a dangerous Pandora’s box,” Weiser said. “That same point could apply to lawyers who offer advice to clients through speech. It could apply to those who are certified investment advisers.”
The Williams Institute at UCLA estimates that as of 2019, about 700,000 LGBTQ+ people had undergone conversion therapy. About half received the treatment as adolescents. One report found about 1,300 practitioners nationwide employing the therapy in states where it remains legal.
A federal judge denied Chiles’s motion for a preliminary injunction in the case, before 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. Chiles then appealed to the Supreme Court.
The Supreme Court created a test for laws regulating speech by medical professionals in a 2018 case dealing with “crisis pregnancy” centers. The justices ruled the government must show a compelling interest to impose content-based regulation on professional speech and must narrowly tailor any such law.
The high court did find that the government could regulate professional conduct in a way that “incidentally” treads on free-speech rights.
Conversion therapy has split the lower courts. Some have found that conversion therapy laws violate free-speech rights, while others have ruled they are allowable regulations of professional conduct.
The case sits at the intersection of key lines of jurisprudence by the court in recent years. The justices have pushed to increase religious liberties, while rolling back protections for gay and transgender people.
In another high-profile case this term, the justices appeared ready to uphold state bans on transgender athletes playing on girls’ and women’s sports teams at schools and universities. The justices heard the case in January.
It came months after the justices ruled Tennessee could ban gender-transition treatments for minors in a major ruling. Last term, the justices also upheld the rights of religious parents to remove their children from public school lessons using LGBTQ+ books.
In a 2023 case, also from Colorado, the high court ruled the state could not force a web designer to create wedding websites for 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.
Julian Mark contributed to this report.
The post Supreme Court rules against ban on ‘conversion therapy’ for LGBTQ+ minors appeared first on Washington Post.
