Supreme Court to Hear Challenge to Colorado’s Conversion Therapy Ban
The Supreme Court has agreed to hear a case challenging Colorado’s ban on "conversion therapy" for LGBTQ+ minors, raising questions about the scope of First Amendment protections and the government’s power to regulate therapeutic practices. The case, brought by a counselor who argues the ban violates her right to free speech, marks a renewed interest by the court in these types of laws, which have been enacted in over 20 states, primarily led by Democrats.
The court’s decision to take up the case comes as it is widely expected to rule in favor of Republican-led states seeking to ban gender-affirming care for minors, suggesting a potential shift in the court’s approach to issues concerning LGBTQ+ rights and medical interventions.
Alliance Defending Freedom’s Argument
The counselor in the Colorado case is represented by Alliance Defending Freedom, a conservative legal organization that argues the ban infringes on First Amendment rights by censoring conversations between therapists and their clients. Cody Barnett, an attorney with the group, asserted that "All Americans should be allowed to speak freely and seek the best possible help they desire." Their argument centers on the idea that the law restricts the counselor’s ability to express her professional opinions and offer guidance to clients seeking help with their sexual orientation or gender identity.
Colorado’s Justification for the Ban
Colorado officials defend the ban, which was passed in 2019, by citing what they describe as "overwhelming evidence" that conversion therapy is harmful to young people. They point to studies linking the practice to increased risks of depression, suicide, and other mental health issues. Colorado Attorney General Phil Weiser stated that the state is "committed to protecting professional standards of care so that no one suffers unscientific and harmful so-called gay conversion therapy."
The state defines conversion therapy as attempts to "change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex." The state contends that the ban is a necessary measure to protect vulnerable youth from a practice that lacks scientific support and has been widely condemned by medical and mental health organizations.
Ambiguity in the Law’s Application?
Attorneys for Colorado have argued that it is not even clear that the law applies to the counselor, Kaley Chiles, who is challenging it. They argue that the practices she has described do not fall under the law’s definition of conversion therapy, as she states she is not trying to "cure" same-sex attractions or "change" sexual orientation.
Chiles’ attorneys, however, argue that Colorado is engaging in semantics and that she justifiably fears prosecution if she tries to help clients who "want to achieve freedom from what they see as harmful self-perceptions and sexual behaviors." This argument highlights the potential ambiguity of the law and the chilling effect it could have on therapists who work with LGBTQ+ clients.
Lower Court Rulings
A U.S. District court in Colorado dismissed Chiles’ challenge in 2022. The U.S. Court of Appeals for the 10th Circuit upheld that decision last year, with a split decision of 2-1. Judge Veronica Rossman wrote for the majority that "The (law) does not regulate expression. It is the practice of conversion therapy – not the discussion of the subject by the mental health provider – that is a `prohibited activity’ under the (law)."
In his dissent, Judge Harris Hartz called the majority’s conclusion "wordplay" that "poses a serious threat to free speech." This dissent underscores the core disagreement in the case: whether the law regulates conduct or speech, and whether the state’s interest in protecting minors outweighs the counselor’s First Amendment rights.
Supreme Court’s Previous Rejection of Similar Cases
In 2023, the Supreme Court rejected a similar challenge to Washington state’s law, brought by a Christian marriage and family counselor represented by Alliance Defending Freedom. Three conservative justices, Clarence Thomas, Samuel Alito, and Brett Kavanaugh, said they would have granted that appeal. The court’s previous refusal to hear these types of cases makes its decision to take up the Colorado case all the more significant. The fact that three justices publicly expressed their disagreement with the decision to deny the Washington case suggests a growing interest among some members of the court in revisiting the issue of conversion therapy bans and their constitutionality.
Implications of the Supreme Court’s Decision
The Supreme Court’s decision in this case could have significant implications for the future of conversion therapy bans across the country. If the court rules in favor of the counselor, it could invalidate similar bans in other states, potentially opening the door for the practice to continue. A ruling against the counselor, on the other hand, would likely solidify the legality of these bans and encourage other states to enact similar legislation.
The case also raises broader questions about the relationship between free speech rights and the regulation of medical or therapeutic practices. The court’s decision could have implications for other areas of law, such as the regulation of abortion counseling or the provision of medical information.
The Supreme Court’s decision to hear this case underscores the ongoing legal and political battles surrounding LGBTQ+ rights and the role of government in protecting vulnerable populations. The outcome of the case could have a profound impact on the lives of LGBTQ+ youth and the ability of therapists to provide care to their clients. It also highlights the tension between religious freedom and the separation of church and state, which is an argument often raised by proponents of religious beliefs that are anti LGBTQ+
