Conversion Therapy Case

Introduction  

The United States Supreme Court has begun hearing arguments in a landmark case that will determine how far states can go in regulating what licensed therapists say to their patients. This case, known as Chiles v. Salazar, centers on Colorado's 2019 law that prohibits conversion therapy for minors. The decision will have far-reaching consequences for both free speech protections and the government's ability to regulate professional conduct in healthcare and counseling fields. 

Does the Colorado Law Violate Free Speech Rights? 

• The central question before the Supreme Court is whether Colorado's ban on conversion therapy violates the First Amendment right to free speech.  
• More specifically, the Court must decide whether the law restricts speech, which receives strong constitutional protection, or whether it regulates professional conduct, which states can regulate more broadly.  
• This distinction is crucial because it determines the level of protection the law receives under constitutional review. 

What did the Lower Courts Decide? 

• Lower courts have already examined this case twice. A federal district court initially ruled in 2022 that Colorado's law regulates conduct rather than speech. 
• When Kaley Chiles, a licensed counselor, appealed this decision, the United States Court of Appeals for the Tenth Circuit upheld the lower court's ruling.  
• The appellate court stated that the ban "regulates professional conduct that only incidentally involves speech." However, this decision has created confusion among different federal courts across the country. 

What is Conversion Therapy? 

• Conversion therapy refers to psychological or behavioral treatments that attempt to change a person's sexual orientation or gender identity.  
• Historically, these practices have included harmful methods such as electric shocks, deprivation, and forced institutionalization. Major medical organizations in the United States, including the American Medical Association, have rejected these practices as ineffective and harmful.  
• Medical research has shown no scientific basis for these treatments. Additionally, studies have linked conversion therapy to serious mental health problems in young people, including increased depression, anxiety, and suicide risk. 

What does Colorado's Conversion Therapy Law Provide? 

• Colorado enacted the Minor Conversion Therapy Law in 2019. The law specifically defines conversion therapy as treatment by a licensed physician that attempts to change a person's sexual orientation or gender identity.  
• The law makes it unprofessional conduct for any licensed therapist to engage in conversion therapy with patients under eighteen years of age.  
• Violations can result in license suspension or fines up to five thousand dollars per violation. However, the law contains an important exception: it does not apply to treatment that helps individuals explore their identity or undergo gender transition, provided the goal is not to change the person's identity.  
• The law also does not apply to religious leaders or unlicensed counselors. 

What Arguments are Being Made Before the Supreme Court? 

• Kaley Chiles argues that the Colorado law violates her First Amendment rights because it restricts what she can say during counseling sessions. She contends that her practice involves only conversation, with no coercion or harmful physical methods.  
• Chiles claims the law discriminates based on the content and viewpoint of her speech by allowing some conversations about identity but banning others. She further argues that the law infringes on her religious beliefs and forces her to self-censor.  
• Chiles relies on a previous Supreme Court case, NIFLA v. Becerra from 2018, which established that professional speech is not automatically less protected than other types of speech. 
• Colorado, in response, maintains that the law regulates professional medical conduct, not speech. The state argues it has a legitimate responsibility to protect minors from harmful, discredited practices.  
• Colorado points to professional standards of care and references the Supreme Court's 1992 decision in Planned Parenthood v. Casey, which allowed states to regulate professional conduct that involves communication. 

How are Federal Courts Divided on this Issue? 

• The disagreement reflects a split among federal courts. The Tenth Circuit and Ninth Circuit have ruled that conversion therapy bans regulate conduct. However, the Eleventh Circuit and Third Circuit have determined that counseling constitutes protected speech. This division among courts, called a "circuit split," is a primary reason the Supreme Court accepts cases for review. Previous cases establishing this split include Otto v. City of Boca Raton and King v. Governor of New Jersey. 
• The Supreme Court's decision, expected next year, will provide clarity on this important constitutional question and determine the fate of similar laws in over twenty states across the nation.