The Supreme Court is taking up yet another case that threatens to roll back the clock for gay and transgender Americans. The justices announced on Monday that they would hear a First Amendment challenge to Colorado’s ban on conversion therapy, the first lawsuit of its kind to reach the high court.
More than 20 states currently forbid medical professionals from offering corrective “treatments” for gay and transgender youth that seek to change their sexual orientation and/or gender identity. Major medical organizations have unanimously condemned conversion therapy as unscientific and potentially dangerous for patients. If the justices strike down such laws, states would have far fewer tools to protect gay and transgender Americans from harmful and often coercive treatments.
This particular case does not directly involve any LGBTQ patients. Instead it centers on Kaley Chiles, a licensed professional counselor in Colorado Springs. Chiles told the courts that she often focuses on clients who are struggling with addiction and other serious issues. Her religious views often inform how she counsels her patients.
“Like Chiles, these clients ‘believe their faith and their relationships with God’ inform ‘romantic attractions and that God determines their identity according to what He has revealed in the Bible,’” her lawyers told the court in their petition for review. “These clients believe their lives will be more fulfilling if aligned with the teachings of their faith, and they want to achieve freedom from what they see as harmful self-perceptions and sexual behaviors.”
Chiles does not currently practice conversion therapy. In the past, however, she told the lower courts that she “helped clients freely discuss sexual attractions, behaviors, and identity by talking with them about gender roles, identity, sexual attractions, root causes of desires, behavior and values.” That approach ended in 2019 when Colorado became one of nearly two dozen states to ban conversion therapy by enacting the Minor Conversion Therapy Law, or MCGL.
The law forbade licensed medical professionals and counselors from utilizing “any practice or treatment” that “attempts or purports to change an individual’s sexual orientation or gender identity” or “eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” While Chiles only practices talk therapy, conversion therapy providers in other states have tried to use aversion therapy, hypnosis, and even electric shocks to try to change their clients’ orientations and identities.
Since Colorado’s ban went into effect, Chiles told the lower courts, she “has been unable to fully explore certain clients’ bodily experiences around sexuality and gender and how their sensations, thoughts, beliefs, interpretations, and behaviors intersect.” In 2022, she filed a lawsuit against the state and its licensing boards, arguing that the ban on conversion therapy amounted to viewpoint-based “censorship” and thus violated the First Amendment.
The lower courts rejected her argument. States generally have the power to regulate professional conduct, especially in the medical field. In recent years, however, the Supreme Court’s conservative majority has been more receptive to challenges to those regulations on free speech grounds. In the 2018 case NIFLA v. Becerra, for example, the justices struck down a California law that required crisis pregnancy centers—anti-abortion clinics that try to deter sometimes unknowing patients from obtaining the procedure—to inform patients about their options to obtain an abortion.
California defended the law by arguing that it could require medical practitioners and counselors to give medically relevant information to pregnant clients. Justice Clarence Thomas, writing for the court, still held that such a requirement violated the First Amendment. The required notices and disclaimers amounted to compelled speech that could not be constitutionally justified on the grounds of professional regulations, he wrote.
In striking down the law, the court’s conservatives limited states’ ability to regulate “professional speech,” a category of speech that had been widely recognized by the lower courts. Federal judges had long recognized that there were limits to what lawyers and doctors could ethically tell their clients. But that approach was treated with some skepticism by the majority in NIFLA, opening the door to challenges like the one brought by Chiles.
Another issue in Chiles v. Salazar is that the court appears to have taken up yet another case featuring a phantasmal injury to a plaintiff in order to achieve a predetermined outcome. The Supreme Court has an unfortunate habit in recent religious freedom disputes (or religious-adjacent free speech ones, as in this instance) of taking up cases with either underdeveloped records or nonexistent ones.
Two years ago, in 303 Creative v. Elenis, the conservative majority held that a Colorado state law that prohibited anti-LGBT discrimination in public accommodations could not be used against a Christian website designer in the state. The plaintiff said that she wanted to be able to design wedding websites without offering them to same-sex couples, even though she had never designed wedding websites before the lawsuit.
The Supreme Court duly ruled in the litigant’s favor along the usual ideological lines. 303 Creative does not list weddings as one of its offered services to this day. The clients in both that case and this one were represented by Alliance Defending Freedom, a conservative Christian legal organization that has won multiple victories in the Supreme Court against abortion rights and LGBT rights.
Chiles’s claim against Colorado is similarly preemptive and emphemeral. “Neither of the respondent Boards has received a complaint about [Chiles], much less taken any disciplinary action against her,” the state of Colorado told the justices. “[Chiles] has never alleged that she intends to practice conversion therapy as defined by the MCTL. She nonetheless filed a pre-enforcement challenge in 2022, more than three years after the MCTL took effect.”
This is not to say that litigants shouldn’t file pre-enforcement challenges to allegedly unconstitutional laws. But the tactic can be used to obscure the underlying issues. In its brief urging the justices to not take up the case, the state of Colorado noted that the pre-enforcement nature of the challenge meant that the justices were not getting the full picture on conversion therapy and its harms.
“[Chiles] offered no expert declarations or affidavits and now invokes unvetted and irrelevant non-record material to suggest that young people’s health is at risk if health care professionals are unable to engage in conversion therapy—when the evidence indicates nothing of the sort,” the state argued. “Her failure to develop a record also makes this an especially poor vehicle for considering her pre-enforcement, facial challenge.”
Every major medical organization in the United States has condemned conversion therapy as pseudoscientific and dangerous. The American Medical Association noted that the tactic’s underlying assumptions about sexual orientation and gender identity are “not based on medical and scientific evidence.” The American Psychiatric Association and other groups have also criticized it by pointing to studies that show conversion therapy may increase suicidal ideation among LGBTQ youth.
By taking up this case, the court’s conservative majority could either narrow or strike down bans on conversion therapy by elevating the hypothetical harms done to counselors such as Chiles instead of the scientifically proven harms done to LGBTQ patients by such treatments. The justices are already considering a case this term on whether the Fourteenth Amendment’s equal protection clause protects transgender Americans from discrimination. In short, the court is poised to do tremendous damage to LGBTQ rights by the time its term ends this summer.
