Split decision shows division over legality of state bans on conversion therapy
Split decision shows division over legality of state bans on conversion therapy
Supreme Court last year declined to hear case challenging Washington state law
Courts seem to be tilting in the direction of deciding that states are constitutionally able to impose bans on conversion therapy — a therapeutic attempt to change a person’s sexual orientation or gender identity — but the issue remains legally unsettled, as a split decision earlier this month by the Denver-based Tenth Circuit U.S. Court of Appeals in Chiles v. Salazar shows.
In a case involving Kaley Chiles, described in court papers as a “practicing Christian,” the court ruled 2-1 to uphold Colorado’s Minor Conversion Therapy Law (MCTL), which prohibits mental health professions from providing conversion therapy to minors. Chiles is a licensed professional counselor who had filed a lawsuit to prevent enforcement of the law, claiming that it violates the free-speech and free-exercise-of-religion clauses of the First Amendment.
But two members of a three-member panel — Joe Biden appointee Veronica Rossman and Barack Obama appointee Nancy Moritz — disagreed. Most significantly, the judges found that the MCTL only incidentally affects speech — that the purpose of the law is to regulate professional conduct. The justices pointed out that there “is a long-established history of states regulating the healthcare professions,” and that the “the police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.”
The majority further found:
Ms. Chiles may, in full compliance with the MCTL, share with her minor clients her own views on conversion therapy, sexual orientation, and gender identity. She may exercise her First Amendment right to criticize Colorado for restricting her ability to administer conversion therapy. She may refer her minor clients to service providers outside of the regulatory ambit who can legally engage in efforts to change a client’s sexual orientation or gender identity. ... And once a minor client reaches the age of majority, Ms. Chiles may provide conversion therapy to that client. The only conduct prohibited is providing what the dissent agrees is a treatment to minor clients.
The court rejected the freedom-of-religion claim by pointing out that the law did not target any specific religious practice and was “generally applicable” to all health professionals regardless of their religious beliefs.
A third panelist, George W. Bush appointee Harris Hartz, sharply dissented. He suggested that calling the work of a counselor involved in talk therapy as something other than speech was arbitrary:
[A]ccording to the majority all the government needs to do to regulate speech without worrying about the First Amendment is put it within a category (“a therapeutic modality”) that includes conduct and declare that any regulation of speech within the category is merely incidental to regulating the conduct.
Quoting a 2014 Third Circuit Court of Appeals case, King v. Governor of the State of New Jersey, Hartz went on to say:
But to “classify some communications as ‘speech’ and others as ‘conduct’ is to engage in nothing more than a ‘labeling game.’ ... Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment.”
Because Hartz found that Chiles could provide conversion therapy under the free-speech clause of the First Amendment, he said it was not necessary to rule specifically on her freedom-of-religion claims.
The majority’s reasoning that the law regulates professional conduct, not speech, is similar to that of the decision in Tingley v. Ferguson, a case upholding a similar law in Washington state. A counselor who lost that case in the Ninth Circuit Court of Appeals tried to get the U.S. Supreme Court to accept an appeal but was turned down late in 2023. In a highly unusual move, two members of the high court — Clarence Thomas and Samuel Alito — issued written dissents objecting to the denial of certiorari, arguing that laws banning conversion therapy are clearly denials of free speech. (Justice Brett Kavanaugh also would have granted a hearing, although he did not explain why.) Because justices at the top court can decide not to accept cases for almost any reason, it is unknown how the majority would have ruled on the merits of the case.
Lawyers for Chiles have not indicated any plans for an appeal, either to a full appeals court or the Supreme Court. Most likely, any decision to appeal will be a strategic one, trying to successfully guess when the Supreme Court might be willing to tackle the issue.