In an 8-1 decision, the U.S. Supreme Court ruled a Colorado law banning so-called conversion therapy for minors “regulates speech based on viewpoint,” likely violating counselors’ First Amendment rights.
The Court’s almost-unanimous decision in Chiles v. Salazar was written by Justice Neil Gorsuch, with Justice Ketanji Brown Jackson offering the lone dissent. Liberal Justice Elena Kagan filed a separate concurring opinion, joined by fellow liberal Justice Sonia Sotomayor.
The case was brought by Kaley Chiles, a practicing Christian and licensed professional counselor who helps clients with a variety of issues – including unwanted sexual identity confusion and same-sex attractions.
But Colorado passed a ban on “conversion therapy” for minors in 2019, censoring Chiles’ speech. Therapists in Colorado were only allowed to help minors move toward homosexuality or transgenderism, even when this conflicted with their deeply held religious beliefs.
Chiles does not impose her beliefs on clients but helps them work toward their own goals. The ban locked minors out of voluntary counseling conversations that could help them live according to their faith and embrace their bodily reality.
Alliance Defending Freedom (ADF) allied attorney Barry Arrington filed a lawsuit on Chiles’behalf in 2022, fighting this unwarranted violation of her First Amendment rights.
After a district court failed to stop Colorado’s therapy ban, Arrington and ADF attorneys appealed to the U.S. Court of Appeals for the 10th Circuit in 2024. When that court ruled against Chiles, she appealed to the Supreme Court, and ADF Chief Legal Counsel Jim Campbell presented oral arguments before the U.S. Supreme Court last October.
ADF called the victory a “monumental” decision for free speech, saying, “The U.S. Supreme Court affirmed that counseling conversations are speech and that states cannot silence viewpoints in the counseling room.”
Campbell, in a statement from ADF, pointed out the damage to children from counseling censorship laws that prohibit help for those struggling with sexual identity confusion:
Kids deserve real help affirming that their bodies are not a mistake and that they are wonderfully made. The U.S. Supreme Court’s decision today is a significant win for free speech, common sense, and families desperate to help their children.
States cannot silence voluntary conversations that help young people seeking to grow comfortable with their bodies.
The ruling affects laws in 23 states, along with executive orders or regulations in four states and more than 100 municipalities, that censor talk therapy for minors with unwanted homosexuality or transgenderism. It also affects similar court cases across the country.
In his opinion, Gorsuch noted that Colorado’s law forbade “any practice or treatment … that attempts … to change an individual’s sexual orientation or gender identity,” including any effort “to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex” (his emphasis).
Chiles had argued that the prohibition applied to her use of normal, therapeutic talk therapy with clients, and it mandated speech that encouraged them toward homosexuality or transgenderism.
Colorado argued that the law regulated “professional conduct,” not speech. But the Supreme Court rejected this, saying talk therapy “involves no physical interventions or medications, only the spoken word.”
The opinion acknowledged the vital role of free speech in America:
The First Amendment “envisions the United States as a rich and complex place” where all enjoy the “freedom to think as you will and to speak as you think.”
Gorsuch added:
This Court has long held that laws regulating speech based on its subject matter or “communicative content” are “presumptively unconstitutional.” …
We have recognized, as well, the even greater dangers associated with regulations that discriminate based on the speaker’s point of view.
“While the First Amendment protects many and varied forms of expression, the spoken word is perhaps the quintessential form of protected speech,” the Court opined.
In her lengthy 35-page dissent – longer than Gorsuch’s opinion and Kagan’s concurring opinion combined – Jackson stated that Colorado was only regulating “medical professionals and their treatment-related speech.”
She added, “Chiles insists … she has a constitutional right to flout Colorado’s statute and the standard of care it incorporates if a client asks her to do so.”
Jackson tried to make a distinction between “talk therapy” and “medical treatment,” saying Chiles had the right to oppose Colorado’s law and “freely promote conversion therapy” but “she cannot practice that therapy.”
The rest of the Court adamantly disagreed with that baseless argument.
Gorsuch made several key points in the Court’s emphatic rejection of Jackson’s distinction between “speech” and “therapeutic “practice.” First, he wrote:
Licensed professionals “have a host of good-faith disagreements” about the “prudence” and “ethics” of various practices in their fields. … Medical consensus, too, is not static; it evolves and always has. A prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow.
Far from a test of professional consensus, the First Amendment rests instead on a simple truth: “[T]he people lose” whenever the government transforms prevailing opinion into enforced conformity.
He went on to make a statement that captures the crux of this case:
We do not doubt that the question “how best to help minors” struggling with issues of gender identity or sexual orientation is presently a subject of “fierce public debate.” …
But Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censoriousgovernments 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. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an “egregious” assault on both of those commitments.
Colorado’s “censorious government” believed it had the right to stifle free speech and only allow the viewpoint of LGBT activists and their allies to reign in counseling offices.
Kaley Chiles celebrated the freedom to work with minors and their families who want to live according to the Bible’s guidance for sexuality and relationships. She said:
When my young clients come to me for counsel, they often want to discuss issues of gender and sexuality. I look forward to being able to help them when they choose the goal of growing comfortable with their bodies.
Counselors walking alongside these young people shouldn’t be limited to promoting state-approved goals like gender transition, which often leads to harmful drugs and surgeries. The Supreme Court’s ruling is a victory for counselors and, more importantly, kids and families everywhere.
The case is Chiles v. Salazar.
If you or someone you know is struggling with homosexuality or transgenderism, Focus on the Family offers a one-time complimentary consultation with our ministry’s professionally trained counseling staff. The consultation is free due to generous donor support.
To reach Focus on the Family’s counseling service by phone, call 1-800-A-Family (232-6459) weekdays 6:00 a.m. to 8:00 p.m. (Mountain Time). Please be prepared to leave your contact information for a counselor or chaplain to return a call to you as soon as possible. Alternatively, you can fill out our Counseling Consultation Request Form.
We also offer local referrals for licensed counselors who align with the mission and values of Focus on the Family.
Related articles and resources:
Alliance Defending Freedom: Chiles v. Salazar
Daily Citizen:
Appeals Court Permits Colorado’s Counseling Censorship Law to Stand
Colorado Counselor Asks U.S. Supreme Court to Hear Free Speech Case
Colorado Lurches to the Far Left
Is Therapy to Leave Homosexuality Damaging? New Review Says, ‘No Proof of Harm’
Therapy Bans Threaten Religious Freedom, Free Speech and Parental Rights
Why We Support Therapy for Unwanted Homosexuality
Focus on the Family:
Counseling for Sexual Identity Concerns: A Measured, Careful, and Compassionate approach.
