Can the government prohibit what a therapist says to a client behind closed doors? March 31, in an 8-1 opinion, the U.S. Supreme Court answered that question with a firm “No.” But the fact of an overwhelming majority of the court—eight justices—also suggests the narrowness of the opinion itself.
Indeed, Justice Neil Gorsuch’s majority opinion recognized that the “question before us is a narrow one,” blocking only the application of the state law as applied to a therapist counseling her patients. Thus, while this is a welcome decision, the court stopped well short of anything expansive.
The First Amendment of the Constitution states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech.” Generally, content-based and viewpoint-based restrictions on free speech are reviewed under strict scrutiny—the most demanding standard for judicial review. But when Kaley Chiles challenged Colorado’s law that prohibited licensed counselors from engaging in “conversion therapy” with minors, the lower courts applied a far more lenient standard—rational basis review—that basically guaranteed a win for the state.
Chiles is a licensed mental-health counselor in Colorado Springs. Throughout her career, she has worked with clients to address addiction, trauma, and personality disorders. Additionally, she counsels individuals experiencing eating disorders, gender dysphoria, and concerns related to sexuality.
Chiles is a Christian whose practice is informed by her faith. This involves counseling clients who feel same-sex attraction or are at a crossroads regarding their current gender identity. But Chiles does not predetermine how to counsel any particular patient. As Gorsuch’s opinion pointed out in detail, Chiles does not impose her values or beliefs on her patients. Instead, she lets her patients guide her approach to care.
Despite her wealth of experience, Chiles’ practice met resistance from the Colorado state Legislature. In 2019, Colorado passed HB19-1129, or the Mental Health Practice Act, a law that bans mental health practitioners from engaging in conversion therapy with minor patients.
The bill defines “conversion therapy” broadly to include “efforts to change an individual’s sexual orientation, including efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attraction or feelings toward individuals.” Since the passage of this law, Chiles avoided conversations with minors that could be interpreted as conversion therapy, effectively limiting the services that she could provide.
In September 2022, Chiles challenged Colorado’s law. She sought a preliminary injunction under 42 U.S. Code § 1983, arguing that the state’s censoring of private counseling conversations violated the First Amendment’s guarantees of free speech and religious exercise. Chiles, however, lost in the district court.
Chiles subsequently appealed to the 10th U.S. Circuit Court of Appeals, but her claim was struck down again. The appellate court reasoned that Chiles’ practice represented professional conduct rather than purely free speech. Because of the court’s determination that Chiles’ work was not speech, it applied rational basis review, a lower legal standard that allows courts to uphold a law so long as it is rationally related to a legitimate government interest. The court accepted Colorado’s asserted interests to protect minors, maintain professional standards, and mitigate harmful treatments.
Judge Harris Hartz, however, disagreed with the majority and issued a scathing dissent. Arguing that talk therapy is speech protected by the First Amendment, Hartz accused the majority of inconsistency bordering on hypocrisy, stating, “What if the shoe were on the other foot? It was not terribly long ago that the mental-health establishment declared homosexuality to be a mental disorder.” Hartz concluded that perhaps the pendulum of the psychiatric community had swung too drastically in the opposite direction.
Chiles remained undeterred and petitioned the Supreme Court. During oral argument, there was heated debate among the justices about whether rational-basis review was appropriate. Justice Ketanji Brown Jackson expressed doubt that Chiles’ conduct fell under the protection of free speech, analogizing a therapist’s services to the prescription of medicine. But Chiles’ counsel fired back that protected speech could not be relabeled as conduct in service of censoring specific viewpoints and ideologies.
Justices Samuel Alito, Elena Kagan, Clarence Thomas, and Gorsuch repeatedly raised concerns about viewpoint discrimination, especially given that the law permits counseling that affirms a minor’s identity but prohibits counseling that questions or redirects it. The state maintained that counseling is a form of treatment subject to professional standards of care, and that the First Amendment does not protect a licensed professional’s right to provide harmful or ineffective treatment simply because it is delivered through words.
The proverbial handwriting on the wall during oral argument was borne out in today’s opinion, with Jackson as the lone dissenter.
Gorsuch’s majority opinion held that Colorado’s law was a classic case of viewpoint discrimination. And even Kagan, in a short concurrence joined by Justice Sonia Sotomayor, labeled it as a “textbook” example.
But at the same time, today’s opinion will have a limited, practical effect. Colorado’s broad law will remain on the books for application in future examples, while licensed healthcare professionals will be immune from prosecution, fines, or other adverse state action when discussing issues of gender or sexuality with consenting patients.
The door remains open, however, for Colorado to try again. Gorsuch’s majority opinion notes that today’s case is limited to “talk therapy,” and not any other activity, such as surgery, physical treatment, or prescription medicine. And further, Kagan’s concurrence seems to call for a state to fix Colorado’s shortcomings by crafting a “content based” but “viewpoint-neutral” statute that could survive strict scrutiny. One can expect Colorado, California, and other states of that ilk to look to Kagan’s concurrence as a future road map.
But back to today’s opinion. We all can celebrate Gorsuch’s majority opinion for as far as it goes. We can be thankful that the overwhelming majority of the court (minus Jackson) recognized that Colorado’s blatant viewpoint discrimination could not stand. But this case is likely not the end of efforts to enforce state-approved gender ideology.