A Colorado law banning so-called conversion therapy to “cure” minors of being gay or transgender was struck down Tuesday by the U.S. Supreme Court, which determined that the law violates the First Amendment.
“Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things,” Justice Elena Kagan wrote in a concurring opinion. “Because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.”
Only one of the justices, Ketanji Brown Jackson, dissented. The court has a 6-3 conservative-majority. Justice Neil Gorsuch, formerly of the U.S. Court of Appeals for the Tenth Circuit based in Denver, wrote the majority opinion.
Justices had a spirited debate about the law for about 90 minutes in October. The case was initiated by a Christian counselor in Colorado Springs who “believes that people flourish when they live consistently with God’s design, including their biological sex,” according to court filings.
Kaley Chiles offers talk therapy and said she had the right to continue under the First Amendment. She does not offer aversion therapy, which is a controversial, psychological therapy that attempts to associate unwanted thoughts or feelings with negative consequences. In aversion therapy, therapists might use shock treatments or induced vomiting.
Chiles is not attempting to “cure” people who do not want to be LGBTQ, but many people come to her for help because they struggle with gender dysphoria or sexual orientation that does not align with their religious values, her attorney, James A. Campbell with the Alliance Defending Freedom, argued before the court.
Colorado’s law bans “these consensual conversations,” Chiles’ attorney argued, saying in court records that patients “seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires.”
In Tuesday’s majority opinion, Gorsuch focused on the rights of free speech.
“While the First Amendment protects many and varied forms of expression, the spoken word is perhaps the quintessential form of protected speech. And that is exactly the kind of expression in which Ms. Chiles seeks to engage,” Gorsuch wrote. “As a talk therapist, all Ms. Chiles does is speak with clients; she does not prescribe medication, use medical devices, or employ any physical methods … and nearly as clear to our eyes, Colorado seeks to regulate the content of Ms. Chiles’s speech.”
Colorado banned conversion therapy for minors in 2019 in response to a youth mental health crisis and “overwhelming evidence” that attempts to change a child’s sexual orientation or gender identity can lead to increased depression and suicide. More than 20 states have similar laws preventing conversion therapy for children, which means the ruling in the Colorado case will affect nearly half of the nation.
During the October hearing, liberal Justice Sonia Sotomayor noted that Colorado, six years since passing the law and three years since the legal challenge was filed, had not enforced it, and questioned whether the type of talk therapy Chiles provides would even be prohibited by the state ban. In response, Chiles’ attorney said Colorado was investigating anonymous allegations against Chiles’ practice.
Sotomayor also voted to overturn the ban.
The justices wrote that the Colorado law fails at being neutral — therapists could affirm children’s gay or trans identity, but were prohibited from helping them try to change it.
“The law prevents a therapist from saying she can help a minor change his same-sex orientation, but permits her to say that such a goal is impossible and so she will help him accept his gay identity,” the majority opinion states. “Colorado does not dispute that point.”
In her dissenting opinion, Jackson argued that Colorado has the “power to regulate the medical treatments that state-licensed professionals provide to patients,” and that it can decide to restrict what is a “dangerous therapy modality.”
“Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional,” Jackson wrote.
While some free-speech groups were applauding the ruling, gay and trans advocacy groups, including from the National Center LGBTQ Rights, were speaking out against it.
“This decision is narrowly about how conversion therapy can be regulated. It does not mean that conversion therapy is safe or legal,” the center’s legal director, Shannon Minter, said in an emailed statement. “Conversion therapy is still medical malpractice and consumer fraud. Every major medical organization in this country condemns it.”
At least 12 research studies have found that conversion therapy causes harm, Colorado argued in the case. One study, including 27,000 transgender adults, found that receiving conversion therapy at any time in their life led to higher levels of psychological distress and suicide attempts, as well as a loss of faith in religious institutions.
The law was previously upheld by the 10th U.S. Circuit Court of Appeals in Denver.
Colorado has been a battleground for other LGBTQ rights, including the case of a baker who refused to make a wedding cake for a gay couple. The U.S. Supreme Court sided with the baker in 2018. And in 2023, the Supreme Court determined the First Amendment protected a Colorado web designer who refused to design websites for gay couples.