A Supreme Court Win For Free Speech And Biological Reality

The Supreme Court on Tuesday delivered a major win for the free speech rights of counselors and therapists, ruling in an 8-1 decision that a Colorado law prohibiting licensed counselors from engaging in talk therapy to help a person "reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their bodies" unconstitutionally violated the First Amendment right to freedom of speech. FRC President Tony Perkins called the decision "A Supreme Court win for free speech and biological reality."

"Colorado's law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety," the court concluded in Chiles v. Salazar. "But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth."

Alliance Defending Freedom (ADF), who argued the case, said the ruling "will help protect counselors from similar laws in more than 20 states and over 100 localities across the country."

The Colorado law in question was a 2019 statute "prohibiting licensed counselors from engaging in 'conversion therapy' with minors," the justices described. The term "conversion therapy" can refer to "physical techniques such as electric shock therapy aimed at changing an individual's sexual orientation or gender identity," but the Colorado law "reaches further, forbidding 'any practice or treatment ... that attempts ... to change an individual's sexual orientation or gender identity,'" including simply talk therapy.

On the other hand, "the law explicitly allows counselors to engage in 'practices' that provide 'acceptance, support, and understanding for the facilitation of an individual's . . . identity exploration and development'" and "to provide 'assistance to a person undergoing gender transition,'" the court observed. This double standard constituted "viewpoint discrimination" so obvious that even Justices Elena Kagan and Sonia Sotomayor had to agree.

"'Viewpoint discrimination,' as we have put it, represents 'an egregious form' of content regulation, and governments in this country must nearly always 'abstain' from it," declared the opinion, written by Justice Neil Gorsuch.

The Colorado ban on counselors helping clients navigate their way out of same-sex attraction or gender confusion through talk therapy was challenged by Kaley Chiles, a credentialed and licensed counselor in Colorado. "Chiles 'does not begin counseling' on any topic 'with any predetermined goals'" but "seeks to help her clients reach their own stated objectives," the court cited from the record.

Furthermore, Chiles "does not prescribe any medicines, perform any physical treatments, or engage in any coercive or aversive practices," the court recorded. "All Ms. Chiles offers is talk therapy." In fact, Chiles does not object to Colorado's prohibition on "what she herself calls 'long-abandoned, aversive' physical interventions" like electric shock therapy.

Nevertheless, "Both the district court and the Tenth Circuit ... read Colorado's law as prohibiting licensed counselors like Ms. Chiles from engaging in any attempt -- including through speech -- to help a minor client change his gender identity or sexual orientation," the Supreme Court said, adding its own approval.

"Ms. Chiles's as-applied challenge ran this way. With respect to gender identity, she claimed, the law permits her to speak in ways that encourage a client 'undergoing gender transition,' but the law prohibits her from speaking in ways that help a client 'realign his identity with his sex.' ... With respect to sexual orientation, Ms. Chiles continued, Colorado's law similarly allows her to affirm a client's sexual orientation, but prohibits her from speaking in any way that helps a client 'change' his sexual attractions or behaviors," the court summarized. "These constraints strip her of her First Amendment right to speak freely with her clients in ways she believes might help them meet 'their own goals.'"

The justices' own analysis broadly concurred with this challenge. "The spoken word is perhaps the quintessential form of protected speech. ... Colorado seeks to regulate the content of Ms. Chiles's speech," they reasoned.

"The State insists, and the Tenth Circuit agreed, that its law does not 'regulate expression' at all, only 'conduct,' 'treatment,' or a 'therapeutic modality,'" added the court. "But the State's premise is simply mistaken. ... Her speech does not become conduct just because the State may call it that. Nor does her speech become conduct just because it can also be described as a 'treatment,' a 'therapeutic modality,' or anything else. The First Amendment is no word game. And the rights it protects cannot be renamed away or their protections nullified by 'mere labels.'"

As mentioned above, eight out of nine justices agreed with this decision by Justice Gorsuch.

In a brief concurrence, Justices Kagan and Sotomayor wrote that if Colorado had instead enacted a content-based but viewpoint-neutral law, "it would raise a different and more difficult question." But, since Colorado's law clearly "regulates speech based on viewpoint," it left the politically sympathetic liberal justices no sympathetic legal rationale on which to justify Colorado's conduct.

The lone dissenter in the case was Justice Ketanji Brown Jackson. She argued that "'There is no right to practice medicine which is not subordinate to the police power of the States,'" and that "the majority has failed to appreciate the crucial context in which Chiles's constitutional claims have arisen. Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional. The Tenth Circuit was correct to observe that 'there is a long-established history of states regulating the healthcare professions.'"

Justice Jackson has notably dissented from other Supreme Court decisions affirming the right of states to regulate the health care professions, such as the Skrmetti decision last summer, allowing Tennessee to protect minors from transgender puberty blockers, cross-sex hormones, and surgeries.

A transgender activist group, Lambda Legal, criticized the decision. "LGBTQ+ youth do not need to be changed. Rather, like all youth, they need to be supported and celebrated for the unique and important people they are becoming."

"When my young clients come to me for counsel, they often want to discuss issues of gender and sexuality. I look forward to being able to help them when they choose the goal of growing comfortable with their bodies," Chiles said after the decision. "Counselors walking alongside these young people shouldn't be limited to promoting state-approved goals like gender transition, which often leads to harmful drugs and surgeries. The Supreme Court's ruling is a victory for counselors and, more importantly, kids and families everywhere."

"I'm encouraged to see the muzzle removed from therapists seeking to help willing patients come to terms with, and be at peace with, how God created them," reflected Perkins in a statement to The Washington Stand. "The Left is using the levers of government to block families and individuals seeking help. Under Colorado law, a girl could legally seek a therapist's help to change her gender but could not seek help from that same therapist to align her identity with her biological sex. Where is the fairness or logic in that? I commend the court for striking down this deeply invasive and unjust law."

Originally published at The Washington Stand