Update: Trump administration sides with counselor in conversion therapy dispute
Case pits therapist’s free-speech rights against legal rules on standard of care
The Donald Trump administration’s Justice Department has formally sided with Kaley Chiles, a Christian mental-health counselor who is challenging Colorado’s law prohibiting professional counselors from employing “any practice or treatment” that “attempts or purports to change” a minor’s “sexual orientation or gender identity.”
Chiles and her attorneys see the law as a type of unconstitutional censorship, while Colorado authorities see the law as needed to ensure that minors receive a standard of care consistent with the best scientifically supported practices. Legally, the issue largely centers on whether talk therapy is speech protected by the First Amendment or whether it is a type of professional conduct that can be carefully regulated.
The U.S. Supreme Court will hear Chiles v. Salazar during its term that begins in October. The Justice Department aligned itself with Chiles with a friend-of-the-court brief submitted earlier this month, and last week the administration petitioned the court to allow a U.S. attorney to participate in oral arguments yet to be scheduled.
In his legal brief, Solicitor General D. John Sauer calls the Colorado law a “sharp break from historical counseling regulations” and “a viewpoint-based speech restriction on counselors.” Sauer calls the law harmful to minors:
Many families and adolescents want to address gender dysphoria by aligning identity and sex. But in Colorado, they cannot choose a licensed counselor to help them pursue that goal. Instead, counselors may engage with those clients only if they push them down the path of transition — potentially to a lifetime of medical interventions, starting with puberty blockers and proceeding to cross-sex hormones and even surgeries. Through a gag order on counselors, Colorado increases the likelihood that kids will go down that road.
Colorado has yet to file its legal briefs in the case. In earlier court papers, attorneys for Patty Salazar, executive director of the Colorado Department of Regulatory Agencies, said that Colorado’s law came about because of “overwhelming evidence that efforts to change a child’s sexual orientation or gender identity are unsafe and ineffective.”
A decision in favor of Chiles, the attorneys wrote, would threaten state laws regulating not only counselors but also other types of professionals:
Adopting Petitioner’s position would undermine states’ longstanding authority to regulate professional conduct, a power essential for ensuring patients’ ability to trust health care providers to deliver safe and effective treatment consistent with the standard of care. First established and provided by colonial governments, these protections have been continued by state legislatures ever since.
Original article (March 10, 2024): Supreme Court agrees to decide legality of Colorado’s ban on ‘conversion therapy’
A professional mental-health counselor has persuaded the U.S. Supreme Court to hear her challenge against Colorado’s ban on so-called “conversion therapy,” the practice of attempting to change a client’s sexual orientation or gender identity. The counselor, Kaley Chiles, describes herself as a practicing Christian and says that many of her clients come to her for the specific purpose of reconciling their religious faith with their feelings and desires as they relate to sexual identity.
The high court accepted the appeal of Chiles v. Salazar1 today without comment and without indicating which of the justices wanted to hear the case. The case mostly likely will be heard during the term that starts in October, with a ruling not coming until 2026.
Chiles and her attorneys, who come from the Alliance Defending Freedom, a conservative legal organization known for working on high-profile religious-freedom cases, are basing their case on free-speech rather than religious-freedom grounds. In that way the case is similar to 303 Creative v. Elenis, in which the high court ruled in 2023 in favor a Colorado website designer who refused to create websites featuring photos of same-sex weddings. The court based its decision in that case on free-speech grounds without considering whether the designer’s religious rights were violated.
Chiles’s main argument is that any decision she makes in talking to a client dealing with sexual orientation or gender identity issues is protected by the First Amendment free-speech clause. As Kristen Waggoner, the head of ADF explained in statement today:
The government has no business censoring private conversations between clients and counselors, nor should a counselor be used as a tool to impose the government’s biased views on her clients. ... We are eager to defend Kaley’s First Amendment rights and ensure that government officials may not impose their ideology on private conversations between counselors and clients.
Colorado government officials see things differently. They argue that the state can legitimately regulate how a licensed professional deals with her clients in order to assure that the treatment is provided consistent with the standard of care expected of mental-health professionals. As the legal brief that Colorado officials filed with the Supreme Court put it:
Central to Petitioner’s position is her claim that mental health professionals’ counseling of their patients is no different from a chat with one’s college roommate, such that both interactions receive the same First Amendment protection. Not so. Indeed, as the Court of Appeals recognized, Petitioner’s argument misunderstands the reality of professional health care as well as this Court’s precedent. A professional’s treatment of her patients and clients is fundamentally different, for First Amendment purposes, from laypersons’ interactions with each other. Unlike laypersons, those who choose to practice as health professionals are required, among various other responsibilities, to provide treatment to their patients consistent with their field’s standard of care. Petitioner’s claim would undercut states’ longstanding ability to protect patients and clients from harmful professional conduct.
The Colorado law, which applies to the treatment of minors, was enacted in 2019. It 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 legal dispute is primarily over whether that law prohibits a type of professional conduct in the same way that other laws might prohibit certain medical treatments, or whether the counselor’s discussions with the client are protected by the free-speech clause in the same way that a non-professional’s conversations or the same subject material might be.
The trial court that first faced the dispute adopted the position that the method of treatment could be regulated as a type of conduct. Chiles appealed that ruling to the Tenth Circuit Court of Appeals, which upheld the lower court’s ruling. It is that appeals ruling that is now before the Supreme Court.
While the case will in all likelihood be decided based on the requirements of the First Amendment, a subtext of the case is a dispute over what is the best approach to take when dealing with minors who are troubled with issues involving sexual orientation or gender identity, especially where religious values are involved. According to Chiles and her attorneys, it only makes sense to help people explore their actions and feelings in context of their religious views if that it what they want to do.
Chiles’s petition to the high court explained her approach like this:
Like Chiles, these clients “believe their faith and their relationships with God” inform “romantic attractions and that God determines their identity according to what He has revealed in the Bible.” ... These clients believe their lives will be more fulfilling if aligned with the teachings of their faith, and they want to achieve freedom from what they see as harmful self-perceptions and sexual behaviors. Chiles works only “with voluntary clients who determine the goals that they have for themselves.” ... If clients are content with their sexual orientation or gender identity, Chiles does not “try to help [them] change their attractions, behavior, or identity” but instead helps them develop other therapeutic goals. ...
Chiles’s clients seek a counselor who respects and shares their values. ... After a client communicates his or her “goals, desires and objectives,” Chiles “provides counseling that aligns with the client’s self-determined choices.” ... Together, Chiles and her clients “freely” and “fully explore” issues about “gender roles, identity, sexual attractions, root causes of desires, behavior and values.” ... Though Chiles never promises that she can solve these issues, she believes clients can accept the bodies that God has given them and find peace.2
But the state doesn’t see this approach as helpful. As it argued in its petition:
That conversion therapy inflicts harm has been confirmed by at least twelve research studies, four systematic reviews of that research, and two independent evaluations of conversion therapy and the attendant research. ... Conversion therapy’s documented harms include depression, anxiety, loss of sexual feeling, negative self-esteem, negative changes in family relationships, loss of faith, and suicidality. ... A cross-sectional survey of over 27,000 transgender adults found that exposure to conversion therapy at any time in a transgender person’s life was associated with adverse mental health outcomes in adulthood that included severe psychological distress, suicidal thoughts, and suicide attempts. The studies of adults who underwent voluntary conversion therapy also found that they experienced harms including shame, a loss of faith in religious institutions, and suicidal thoughts. ...
In short, “[s]tudies dating across two decades have evaluated [conversion therapy] and identified it as a potentially harmful treatment.” ... A systematic review of this evidence led the American Psychiatric Association, American Psychological Association, and other professional health care providers’ associations to recommend against the use of conversion therapy due to the evidence that it harms young people.
Patty Salazar is the executive director of the Colorado Department of Regulatory Agencies.
Ellipses are used in this excerpt, and in the excerpt from the state’s petition below, only to eliminate citations to court cases.