U.S. Supreme Court to hear arguments in First Amendment challenge to Colorado’s conversion therapy ban

A Colorado case going before the U.S. Supreme Court this week could set nationwide precedent for whether states can bar licensed medical professionals from performing the widely discredited practice of conversion therapy on LGBTQ+ kids.

On Tuesday, the conservative-majority court will hear oral arguments in Chiles v. Salazar, a case brought by Colorado Springs counselor Kaley Chiles, who alleges the state’s ban on conversion therapy for minors violates her First Amendment rights.

The Colorado Attorney General’s Office will argue that trying to change a young patient’s sexual orientation or gender identity is substandard medical care, and that greenlighting such care under the umbrella of free speech would “open Pandora’s box” to a litany of licensed professional malpractice.

Nearly half of U.S. states have prohibited the practice of conversion therapy on minors.

But the Alliance Defending Freedom, an Arizona-based conservative legal organization that is representing Chiles, contends Colorado’s 2019 conversion-therapy ban is an attack on licensed medical therapists’ free speech and religious freedoms.

Should the Supreme Court rule in Chiles’ favor, constitutional law expert Scott Skinner-Thompson said not only would the nation’s queer youth be vulnerable to harmful psychological practices, but licensed professionals of all kinds could use the First Amendment as a shield for malpractice, too.

“There are legal malpractice laws that hold lawyers accountable when they give clearly erroneous legal advice,” said Skinner-Thompson, a law professor at the University of Colorado Boulder. “There’s medical malpractice when doctors give negligent medical advice. All those things involve communication, and it’s never been controversial or a violation of the First Amendment to regulate that. But that’s exactly what Chiles is asking the Supreme Court to conclude here.”

Jake Warner, senior counsel with the Alliance Defending Freedom, said Chiles’ argument is laser-focused on free speech. He argued that she experienced “viewpoint discrimination” by being forbidden from counseling conversations aimed at helping a client feel “more consistent with their biological sex.”

“These are conversations that clients want and need,” Warner said.

Practice denounced by health groups

Health organizations around the world — including the American Psychological Association, the American Academy of Child and Adolescent Psychiatry and the National Alliance on Mental Health — have denounced the practice of conversion therapy and spoken of the harms of trying to alter a person’s sexual orientation or gender identity, including increased risks of depression, sexual problems, low self-esteem and suicide.

Alex Floyd, health equity director at LGBTQ advocacy organization One Colorado, said anyone struggling to understand the impacts of conversion therapy should listen to the stories of those who have endured it.

“I worked with many people who have been through conversion therapy, and the damages of that are lifelong and deeply sit in someone’s soul and psyche,” Floyd said. “I hope folks can understand that and listen to folks that have been harmed. We all deserve therapy where we feel safe and heard and get a chance to heal and grow. We shouldn’t have to go to therapy because of our therapy.”

Colorado Attorney General Phil Weiser argues that conversion therapy practices are so discredited that they fall under the banner of substandard medical care. To argue that a doctor has the right to provide substandard medical care under the First Amendment would set a dangerous precedent, he said.

For example, if a doctor recommended a child with leukemia skip chemotherapy and instead take Vitamin C, that advice would be substandard care, Weiser said. Shielding poor medical advice under First Amendment protections could mean ill-informed care for anyone, he said.

“We’re about protecting patients,” Weiser said. “Therapists can’t just do things that lack medical basis.”

Warner countered that bans on conversion therapy are what’s harming the nation’s youth.  “Colorado hasn’t identified any study that proves these conversations cause harm,” he said.

In a video posted by the Alliance Defending Freedom, Chiles said Colorado’s conversion therapy ban censors her speech in a way that interferes with her ability to do her job.

“When I am actively having my speech chilled, then I can’t be transparent and honest and genuine with my client, and that’s a real disservice to them,” Chiles said in the video.

Colorado in front of the high court

Colorado has played a notable role in Supreme Court litigation over LGBTQ rights, CU’s Skinner-Thompson said.

In 1996, the court ruled in Romer v. Evans that Colorado’s voter-approved Amendment 2 — which barred municipalities from establishing anti-discrimination laws protecting LGBTQ people — was unconstitutional. The majority opinion noted that passage of the amendment, which earned Colorado the “Hate State” nickname, was born out of a “desire to harm a politically unpopular group.”

In 2018, the Supreme Court ruled on a case in which a Lakewood baker refused to make a cake for a same-sex wedding, citing his religious objections. The ruling, Masterpiece Cakeshop v. Colorado Civil Rights Commission, reversed the state’s findings that the baker had discriminated against the couple, instead finding that Colorado was hostile toward him because of his religious beliefs.

And in 2023, the high court ruled that the First Amendment allowed a Colorado graphic designer to refuse to make wedding websites for LGBTQ couples.

“Now, Colorado has elected representatives who have taken a different tack and tried to protect LGBTQ people, and, as a result, Colorado’s laws are being targeted by groups trying to use the First Amendment to create exceptions for and carve-outs against LGBTQ nondiscrimination,” Skinner-Thompson said. “It’s part of a pattern of using the First Amendment to deregulate government more generally speaking, but strike down protections for LGBTQ people, specifically.”

Warner, the Alliance Defending Freedom attorney, said Colorado is the state the organization has seen the most “coercion” from in recent flare-ups between free speech and LGBTQ rights.