Majority of court appears skeptical of Colorado’s “conversion therapy” ban

The Supreme Court on Tuesday morning appeared largely sympathetic to a Colorado licensed counselor who is challenging the state’s ban on conversion therapy – that is, treatment intended to change a client’s sexual orientation or gender identity – for young people. In Chiles v. Salazar, a majority of the justices seemed to agree with the counselor, Kaley Chiles, that the ban discriminates against her based on the views that she expresses in her therapy. But several justices suggested that, rather than striking the law down outright, the court should send the case back to the lower courts for them to take a closer look at whether the law passes constitutional muster.

Colorado passed the law at the center of the dispute, known as the Minor Conversion Therapy Law, in 2019 in response to what it describes as “a growing mental health crisis among Colorado teenagers and mounting evidence that conversion therapy is associated with increased depression, anxiety, suicidal thoughts, and suicide attempts.” The law bars mental health professionals from providing clients under the age of 18 with conversion therapy, although it carves out an exception for anyone “engaged in the practice of religious ministry.”

Chiles, who is a practicing Christian, contends that although she does not try to “convert” her clients, she does try to help them with objectives that may include “seeking to reduce or eliminate unwanted sexual attractions” or becoming more comfortable with their bodies. Chiles filed a lawsuit in Colorado, asking a federal court to block the state from enforcing the conversion therapy ban against her.

A federal trial judge turned down a request for an order that would temporarily bar the state from implementing the ban against Chiles while her lawsuit continued. The U.S. Court of Appeals for the 10th Circuit upheld that ruling. It reasoned that the conversion therapy ban merely regulates conduct – the treatment that Chiles, as a mental health professional, provides – even if it has an “incidental” effect on Chiles’ speech. As a result, the court of appeals concluded, the ban should be reviewed under the least stringent test for constitutional challenges, known as “rational basis” review, and it meets that relatively low bar.

Chiles then came to the Supreme Court, which agreed in March to take up her case.

Representing Chiles in the Supreme Court on Tuesday, lawyer James Campbell urged the justices to hold that the law is unconstitutional. He told them that the ban prohibits counselors “from helping minors pursue state-disfavored goals on issues of gender and sexuality.” If the ban and others like it are only subject to rational basis review, he suggested, it “would allow states to silence all kinds of speech,” and could “transform counselors into mouthpieces for the government.”

Principal Deputy Solicitor General Hashim Mooppan, representing the Trump administration, also argued that the court should strike down the law. There is no long tradition of state regulation of medical treatment that – like Chiles’ talk therapy – is based solely in speech, he emphasized.

But Shannon Stevenson, Colorado’s solicitor general, stressed that the ban was a “bipartisan law passed by 25 different states.” The ban regulates just one narrow medical treatment, which “carries great risk of harm,” she said. It does not stop a health care professional from expressing a viewpoint to a patient or to anyone else. States can’t lose the power to regulate health care professionals, she continued, just because those professionals are using words.

The justices grappled with several different issues over the course of the argument, which lasted just under 90 minutes – and during which Justice Brett Kavanaugh did not ask any questions at all. One issue was whether Chiles could even bring her case, when Colorado has not sought to enforce the ban against her and says that it won’t do so. Justice Sonia Sotomayor contended that there was no “credible threat of prosecution,” as the Supreme Court’s cases require for a party to have standing. During the six years since the law had been enacted, she observed, there had not been any enforcement, “and we have the entity charged with administering the law saying we’re not going to apply it to your kind of … therapy.”

A second question arose from the state’s assertion that the ban regulates medical treatment, rather than speech. Justice Ketanji Brown Jackson noted that there is a long historical tradition of regulating medical treatments, and she suggested that it would be “very odd” to think that two different medical professionals can provide different kinds of treatment for the same condition – one with talk therapy and one with medication – but the two kinds of treatment would receive different protection under the Constitution.

Justice Samuel Alito pushed back against Stevenson’s contention that the ban is intended to enforce “the professional standard of care.” The “standard of care,” he said, is defined by a consensus among medical experts. “Have there been times,” he queried, “when medical consensus has been … taken over by ideology?” Alito cited an era in which medical professionals believed that children with Down syndrome should be placed in an institution shortly after birth.

Alito also seemed convinced that the Colorado law amounted to discrimination against Chiles based on the views that she wants to express during therapy, calling it “blatant viewpoint discrimination.”

One question that may have remained open at the end of the argument was whether, even if a majority of the justices conclude that the law does discriminate against Chiles and strict scrutiny should therefore apply, the Supreme Court should apply strict scrutiny itself or instead send the case back to the lower courts for them to do so. Sotomayor and Jackson both suggested that the lower courts should consider the question for the first time rather than the justices. Justice Amy Coney Barrett seemed to indicate that she might agree, as she asked Stevenson about the submission of additional evidence if the case “went back.”

A decision is expected by summer.