Court appears sympathetic to counselor’s fight against conversion therapy ban
Arguments pit right to free speech against therapy’s alleged harm to minors
Colorado’s law banning conversion therapy for minors appeared unlikely to survive U.S. Supreme Court scrutiny intact after oral arguments today in the Chiles v. Salazar case.
Kaley Chiles, a mental-health counselor, is challenging the law on the grounds that it violates her First Amendment right to free speech; in essence, her lawsuit claims that her one-on-one private conversations with clients are protected by the Constitution and should not be considered to be the type of professional conduct that states have the ability to regulate. Although Chiles is an evangelical Christian whose views on homosexuality and gender identity are influenced by her faith, her lawsuit is not based on religious-freedom grounds.
Conversion therapy is the practice of attempting to change a person’s sexual orientation or gender identity, typically from gay to straight or from transgender to cisgender. The 2019 law prohibits licensed counselors from offering “any practice or treatment ... that attempts or purports to change an individual’s sexual orientation or gender identity,” specifically including any effort to “change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” The law does not apply to pastors or life coaches, whose services are not regulated by the state. Nor does it apply to therapy for adult patients.
Although the court’s conservative justices appeared most skeptical of the Colorado law, Chiles’s position also gained some sympathy from the court’s liberal justices. Discussion during oral arguments left unclear whether the high court might simply invalidate the Colorado law or send the legal dispute back to a lower court for further review to reconsider the facts of the case.
Part of the legal problem is that while the justices did not openly question the right of a states to prohibit direct efforts to change sexual orientation, the wording of the law is much broader in that its definition includes attempts to “change behaviors” and reduce certain feelings — goals that are common with many types of mental-health treatment. Attorney James Campbell, representing Chiles, honed in on this aspect of the law during at the beginning of his argument, saying this is the type of treatment Chiles hopes to provide.
Shannon Stevenson, representing the Colorado and its director of the Department of Regulatory Agencies, Patty Salazar, acknowledged that as long as Chiles isn’t trying to change orientation or identity, Colorado has no problem with Chiles’s planned therapy. Stevenson said that the specifics of Chiles’s plans for administering therapy has been a “persistent issue” in the case.
Campbell also emphasized that the only type of treatment Chiles offers is speech based — she isn’t authorized to and has no plans to be provide any kind of shock treatment or medicinal treatment designed to affect sexual orientation or gender identity.
To some extent, Campbell and Stevenson were talking past each other in the oral arguments, lasting about an hour and a half, with Campbell emphasizing the right to free speech and Stevenson pointing to the harm caused by conversion therapy. Campbell talked about “viewpoint discrimination,” while, according to Stevenson, “People have been trying to do conversion therapy for 100 years with no record of success.”
The high court will almost certainly announce its decision during the first half of next year.