The Supreme Court Upholds Christian Therapist’s Challenge to Colorado’s Ban on Conversion Therapy

What has become one of the most powerful and demanding forces of our time?  Identity. We live in a nation wherein an insatiable demand for recognition of various forms of identity multiplies. In 2019, in response to the prevailing mood of many voters and political interest groups,  the state of Colorado adopted a law—Colo. Rev. Stat. section 12-0245-224(1)(t)(V)—prohibiting licensed counselors from engaging in “conversion” therapy with minors.

Colorado law defines conversion therapy to include “any practice or treatment  . . . that attempts . . . to change an individual’s sexual orientation or gender identity.” On the other hand, largely consistent with what author Mary Eberstadt labels the nation’s Primal Scream, Colorado law explicitly allows counselors to provide acceptance and support for identity exploration and development. Previously, we have plumbed the depths of these trends in a series of posts that raise a cascading series of questions.

Against this backdrop, Ms. Kaley Chiles, a licensed counselor, filed suit in federal court seeking a preliminary injunction against the law. She raised a First Amendment challenge to the law as it applied to her talk therapy practice. Last week, the Supreme Court issued an 8-1 decision in her favor. This means Ms. Chiles is not only entitled to her day in court but will likely prevail.

As a licensed counselor, she declines to begin counseling in various arenas, including mental health, trauma, addiction, eating disorders, gender dysphoria, and sexuality, with predetermined goals in mind. Instead, she concentrates on her clients' goals. Notably, her clients often have varying goals regarding questions of identity. Chiles seeks to help clients reach their goals. But of course, that approach—giving her clients the freedom to choose—is at odds with the objectives of the state of Colorado, particularly in the areas of gender and sexuality.

Apparently, the state of Colorado prefers that minors move toward a “new” identity (either sexual or gender). From the state’s perspective, the goal of its anti-conversion therapy law is to ensure that counselors non-neutrally express acceptance and support for clients’ desire to explore their new identity or undergo gender transition.

More specifically, the state law outlaws “any practice or treatment  . . . that attempts  . . . to change an individual’s sexual orientation or gender identity.”  Colorado deploys viewpoint regulation that forbids Kaley Chiles from attempting to change a client’s sexual orientation or gender identity via affirmative speech, even if both Ms. Chiles and her client believe it is in the client’s best interest.

On the Supreme Court’s view, Colorado is engaged in a naked application of its power in a way that shrinks Chiles’ viewpoint and diminishes her speech rights in contravention of the First Amendment of the Constitution. Put differently, Colorado regulates Ms. Chiles' expression while declining to regulate the speech of counselors with which the state agrees.

Nor can the state defend its regulatory intrusion by claiming that Ms. Chiles' speech constitutes a form of substandard care that violates “professional standards.” Instead, the state’s attempt to muzzle Ms. Chiles voice amounts to an effort to defend viewpoint orthodoxy that reflects the state’s preference for what those professional standards ought to be.

The state’s effort constitutes a direct attack on the free marketplace of ideas—including unpopular ideas issuing forth from Christianity. It is difficult to see how such an attack can withstand First Amendment scrutiny since “the First Amendment does not protect the right of some to speak freely; it protects the right of all.”

 Despite this difficulty, Colorado insists that its law falls within a long tradition of permissible content regulation rather than impermissible viewpoint discrimination. This claim faces daunting odds since it must withstand scrutiny under the Court’s “strict scrutiny” test.

The Supreme Court is confident that Ms. Chiles had alleged a “credible threat” that Colorado would enforce its law against her if she continued to speak freely in the future. Hence, she can show a clear and present danger to her free speech rights despite the state’s attempt to clothe its apparent violation of the First Amendment in the garments of professional standards and professional speech.

The Supreme Court’s analysis indicates, on remand, that a careful review of Colorado law under the “strict scrutiny” standard will show that the state of Colorado is not wearing any clothes. Instead, its viewpoint discrimination fails long-established First Amendment standards.