Do ‘Conversion Therapy’ Bans Violate Free Speech?

The Supreme Court will hear oral arguments on Tuesday, Oct. 7 in Chiles v. Salazar, which concerns a challenge to Colorado’s ban on “conversion therapy” – treatment intended to change a client’s sexual orientation or gender identity – for young people. Kaley Chiles, a therapist in Colorado Springs and a practicing Christian, argues that the ban violates her right to free speech because it imposes “a gag order on counselors.” But Colorado counters that the ban merely regulates the treatments that mental health professionals can provide because conversion therapy has been found to be “unsafe and ineffective.”

The law at the center of the case is known as Minor Conversion Therapy Law. Passed in 2019, it prohibits mental health professions from providing clients under the age of 18 with conversion therapy, although that bar does not apply to someone who is “engaged in the practice of religious ministry.”

Chiles, a licensed professional counselor, went to federal court in 2019, seeking to block the state from enforcing the law against her. Chiles says that she does not try to “convert” her clients but instead only tries to help them “with their stated desires and objectives in counseling, which sometimes includes clients seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body.”

The district court rejected Chiles’ request to prohibit the state from enforcing the law against her while her challenge proceeded through the courts, and a divided three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld that ruling.

The 10th Circuit concluded that the state’s ban on conversion therapy regulates conduct – treatment of a client by a licensed mental health professional – that “incidentally involves speech.” Therefore, it reasoned, the law should be reviewed under the “rational basis” test, the least stringent form of review in constitutional challenges, and it passed that relatively low bar.

Judge Harris Hartz dissented. He wrote that although “the result reached by the majority—upholding the Colorado prohibition on Chiles—may ultimately be correct,” his colleagues had made “several fundamental errors.” In particular, he emphasized, “the majority opinion treats speech as conduct.”

Chiles came to the Supreme Court last fall, and in March the justices agreed to weigh in.

In her brief on the merits, attorneys for Chiles push back against the suggestion by the court of appeals and the state that the ban on conversion therapy merely regulates conduct, with any effect on speech merely a by-product of that regulation. She emphasizes that speech is not “incidental” to her treatment, contending that her “counseling conversations involve no conduct. The only tool she uses is speech.”

Because Chiles uses only talk therapy, she continues, the application of the ban hinges solely on the message that she conveys during her therapy. For example, she writes, she can help her clients to “embrace a transgender identity. But if those clients choose to align their sense of identity with their sex by growing comfortable with their bodies, Chiles must remain silent or risk losing her license, her livelihood, and the career she loves.” This, she argues, amounts to discrimination based on the content of her speech or the viewpoint that she expresses, which in turn means that the Colorado ban must be subject to strict scrutiny, the most stringent form of constitutional review, rather than rational basis review, the test that the lower courts used.

If strict scrutiny is applied, she contends, the conversion therapy ban fails as applied to her. First, Colorado cannot show that it has a compelling government interest in maintaining the ban because

“no study shows that this type of counseling causes harm.” To the contrary, Chiles suggests, Colorado “is actually inflicting harm through its” ban, because the law “cuts off distressed kids and their families from the counseling they seek.”

Second, the law is not narrowly tailored – that is, carefully written to place as few restrictions as possible on speech. Colorado’s ban is both over- and underinclusive, Chiles writes. For example, it prohibits “all caring counseling conversations when a client seeks change for any behavior, feeling, or identity connected with gender identity or sexual orientation.” At the same time, it allows other people who are not licensed counselors “to have the same conversations it bans for Chiles, and it even permits licensed counselors to have the same conversations with adults.” Colorado’s “true aim,” she concludes, is “to silence and marginalize views it dislikes by gagging the professionals best equipped to speak on the issues.”

Chiles warns that if the Supreme Court upholds the 10th Circuit’s ruling and allows the state to apply its ban to her, it would allow states “to interfere with countless conversations between professionals and their clients” – by, for example, prohibiting “doctors from discussing birth control or counselors from encouraging (or discouraging) options like divorce.”

In a “friend of the court” brief supporting Chiles, the federal government acknowledges that the Colorado law “reaches conduct that has no First Amendment protection because it is not carried out through speech, such as using negative stimuli to create an aversive response.” But in Chiles’ case, U.S. Solicitor General D. John Sauer says, the state is simply regulating her messages to her clients, “and the State is doing so because it disagrees with the viewpoint conveyed—in short, the law regulates speech as speech.”

Sauer tells the justices that they should send the case back for the lower courts to apply strict scrutiny. But based on the record in the case, he continues, the state is unlikely to prevail if that test is applied. “While Colorado has compelling interests in protecting minors from harmful or ineffective treatments provided by licensed mental-health professionals,” Sauer writes, “the State appears to lack persuasive evidence that the … ban on conversion therapy substantially advances those interests, raising the inference that the State is merely seeking to suppress a disfavored viewpoint.”

In its brief at the Supreme Court, Colorado stresses that it “enacted its conversion therapy law in response to a growing mental health crisis among Colorado teenagers and mounting evidence that conversion therapy is associated with increased depression, anxiety, suicidal thoughts, and suicide attempts.” The actual sweep of the conversion therapy ban, the state insists, “is exceedingly narrow.” “The only thing that the law prohibits therapists from doing is performing a treatment that seeks the predetermined outcome of changing a minor’s sexual orientation or gender identity because that treatment is unsafe and ineffective.” And indeed, the state suggests, even Chiles does not contend that she intends to violate the law. Instead, she concedes that she “does not seek to ‘cure’ clients of same-sex attractions or to ‘change’ clients’ sexual orientation.”

The state also echoes the 10th Circuit’s conclusion that the ban on conversion therapy merely regulates a form of treatment, rather than speech. States have long regulated health care, it notes, “to protect patients from substandard treatment.” In light of the state’s findings that conversion therapy “is unsafe and ineffective,” it writes, that is precisely what Colorado is doing here: the ban “prohibits a specific healthcare treatment that violates the standard of care. Colorado’s law is no different, for First Amendment purposes, from barring doctors from urging lung cancer patients to take up smoking.”

During the time that states have regulated health care, Colorado continues, “the First Amendment has never barred states’ ability to prohibit substandard care, regardless of whether it is carried out through words.” Colorado urges the Supreme Court to maintain that status quo. If the court were to agree with Chiles, it suggests, states would no longer be able to “ensure mental healthcare professionals comply with the standard of care.” And more broadly, it cautions, “because so much health care—regardless of the field—is delivered exclusively through words,” a ruling for Chiles “would destabilize longstanding and sensible healthcare regulation.”

Because the conversion therapy ban regulates treatments, rather than speech, the state concludes, rational basis review – rather than strict scrutiny – should apply. But in any event, the state insists, its ban can survive even strict scrutiny. Colorado’s “interest in protecting minors from ineffective and harmful healthcare practices is of the highest possible order,” it argues. And the ban “is narrowly tailored to regulate only the one specific discredited practice of conversion therapy. It does so without limiting any other communication that licensed professionals wish to have with their patients or others about sexual orientation, gender identity, or their views on conversion therapy.”

–Amy Howe, Scotus Blog