Supreme Court Seems Skeptical Of Colorado’s Ban On Conversion Therapy

The Supreme Court appears inclined to strike down a Colorado law that bars physicians and counselors from using talk therapy to try to change a minor’s sexual orientation or gender identity.

During 90 minutes of oral arguments Tuesday, most of the court’s conservatives and at least one liberal, Justice Elena Kagan, seemed to view the case as primarily one about free speech rather than regulation of how health care professionals interact with their patients.

Several justices also wondered whether a ruling allowing Colorado to ban so-called conversion therapy would amount to a green light to conservative states to ban similar counseling that encourages young people to affirm feelings about their gender identity, even if it differs from the one they were assigned to at birth.

“It's pretty important that we think about how this would apply to cases down the road. … Can a state pick a side?” Justice Amy Coney Barrett asked.

The case before the court was brought on behalf of Kaley Chiles, a licensed counselor and a practicing Christian who sometimes provides counseling informed by her faith. Chiles says she wants to provide talk therapy to minors who want to reduce feelings of same-sex attraction or feel more comfortable in their bodies. Chiles isn’t licensed to prescribe medication, conduct physical exams or perform surgery.

Chiles’ attorney, James Campbell of the Alliance Defense Fund, argued that upholding Colorado’s law “would allow states to silence all kinds of speech in the counseling room, such as disfavored views on divorce or abortion.”

Campbell said Chiles is entitled to the “full robust protection” of the First Amendment.

However, Justice Sonia Sotomayor said research into decades of practice of conversion therapy showed it to be harmful, prompting Colorado and 25 other states to ban it. “There are studies that say that this advice does harm the child … emotionally and physically,” she said.

That prompted Campbell to concede that states can stop licensed professionals from giving some sorts of advice.

“If what the state is getting at is a statement by a professional that's telling someone to harm their body, that's a different category,” Campbell said. But he argued that states shouldn’t be able to control professionals’ speech “in a situation like this, where there is debated science.”

Colorado Solicitor General Shannon Stevenson told the court that much of physicians’ interaction with patients involves speech, yet almost everyone seems to agree that states can regulate it. She gave the example of a doctor offering several suggestions for how to reduce cholesterol.

But Kagan signaled she saw that sort of medical advice as somewhat different from the talk therapy Chiles is seeking to offer.

“If the doctor said you can lower your cholesterol by going out and eating dessert every meal, we would think that was not a good thing for a doctor to say. And we wouldn't say, ‘Oh, the First Amendment has something to do with this.’ I have this feeling that that's a different kind of case,” Kagan said. She indicated she viewed the cholesterol advice example as speech “incidental” to the conduct involved in medical practice, while the gender and sexuality counseling Chiles wants to provide is speech alone.

Stevenson disagreed.

“Colorado's law regulates treatments only, and because it enforces the professional standard of care, the law falls squarely into the reasonable regulation of professional conduct that does not trigger First Amendment scrutiny,” she said.

Two of the court’s liberals, Sotomayor and Justice Ketanji Brown Jackson, seemed broadly skeptical about Chiles’ case.

Sotomayor suggested Chiles couldn’t show she was at imminent risk of being punished by the state for providing the therapy she says she wants to offer. “This is an unusual case because we have basically six years of no enforcement of this law,” Sotomayor said, indicating that Chiles may lack legal standing to bring the kind of preemptive suit she did.

Jackson repeatedly questioned whether the First Amendment should come into play in regulation of medical or psychological treatment.

“I understand if Ms. Chiles here were writing an article about conversion therapy or writing or giving a speech about it,” Jackson said. “I'm just trying to understand how the First Amendment protects that doctor from providing therapy that is outside the standard of care.”

While all the major medical associations to opine on the issue reject conversion therapy, Justice Samuel Alito stressed that those pronouncements can sometimes be “overtaken by ideology.”

Speaking for the Trump administration, Deputy Solicitor General Hashim Mooppan urged the justices to strike down the Colorado law as an intrusion on free speech. Adopting a mode of analysis very much in vogue at the moment with the court’s conservatives, Mooppan pointed to the past.

“This is an easy case because there is no conduct,” Mooppan said. “There is a long history and tradition in this country of licensing and even licensing for people who engage in speech.”

But, he added, there is no similar historical tradition of “imposing a prior restraint on the types of speech they engage in” as a condition of a professional license.