Supreme Court Considers Overturning Colorado’s “Conversion Therapy” Ban On First Amendment Grounds

The Supreme Court heard oral arguments last week regarding a “conversion therapy” ban in Colorado and its alleged violation of the First Amendment, including the freedom of religion. The law, passed in 2019, prohibits mental health professionals from providing minors under 18  “conversion therapy,” which is defined as “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 of the same sex.”

Kaley Chiles, a licensed counselor in Colorado Springs, and practicing Christian, pre-emptively brought the case, arguing that the law causes self-censorship by mental health professionals like herself and stifles free speech. Chiles said she does not try to “change” an individual’s sexual orientation or gender expression, but does assist clients with their state counseling goals. Sometimes those goals include the reduction or elimination of “unwanted sexual attractions,” to change sexual behaviors, or to “grow in the experience of harmony with one’s physical body.”

The state of Colorado has stated it has not used the law against therapy like Chiles provides and has no intention of doing so. A federal trial judge and the U.S. Court of Appeals ruled that conversion therapy regulates conduct and not speech, even though it may have an “incidental” effect on her speech. The court of appeals ruled that the law should be evaluated under the “rational basis” review, which is the lowest bar for constitutional challenges.

Attorney James Campbell argued the law is unconstitutional on behalf of Chiles, his client. Campbell said states would be allowed to “silence all kinds of speech” if this law is only subject to the rational basis review. He also suggested it would “transform counselors into mouthpieces for the government.”

Colorado’s solicitor general, Shannon Stevenson, argued that states should have the power to regulate health care professionals even if those professionals only use speech. This law, Stevenson said, only regulates one specific medical treatment that “carries great risk of harm.” She emphasized that it does not prevent professionals from expressing a viewpoint.

Justice Alito said it sounds like the law is “blatant viewpoint discrimination” on the basis that it would allow an adolescent male to receive counseling to help him feel more comfortable as a gay young man, but it would not be allowable for him to seek counseling to lessen his feelings of same-sex attraction. Stevenson said she believes both cases would be permissible because the intent is not to change sexual orientation.

Stevenson also argued that the intention of the ban is to enforce the “standard of care” and that similar statutes have existed since the late 1800s to regulate health care professionals. Justice Samuel Alito asked Stevenson if the standard of care is defined by medical consensus, to which Stevenson replied, “Yes.”

Justice Alito suggested that while medical consensus is usually very reasonable and important, there are times when it is ideologically driven. Alito also provided examples of medical consensus in the past, reflecting that low-IQ people should not procreate and that every individual with Down syndrome should be institutionalized. Alito suggested that because of the potential ideological motivations behind medical consensus and examples of changing consensus over time, the current case should be reviewed on a First Amendment basis.

Stevenson referred to a Colorado provision that says medical doctors who prescribe anabolic steroids for sports performance are engaging in unprofessional conduct. She said that cultural pressures still drive people to seek out this treatment even though it is harmful. “Although every theory that it’s relied on has been debunked and debunked and debunked, people continue to seek it and to want it and to believe that they can make this change,” Stevenson said. “And I think that’s understandable. It’s a challenge to find out that you’re a gay or transgender person.”

When asked for evidence that speaking to minors about sexual orientation and gender identity in a way that does not align with the “standard of care” is harmful, Stevenson referenced the Green and Turban studies that showed increased suicidality and adverse mental health outcomes for adults who received this therapy as a child.

Campbell, in his closing argument, argued that these studies are not reliable. “All of those studies relied on biased sampling, self-reporting,” Campbell said. “They conflated aversive techniques with voluntary counseling. They did not isolate licensed counselors. And they did not purport even in their own study to prove causation.”

Campbell said his client “wants to have full conversations exploring issues of identity and gender, and that includes considering change.” Campbell also referenced

Cambell said, “This law harms gender-dysphoric kids because the statistics that we’ve cited in our verified complaint, as well as in the brief that we cited with this Court, indicate that 90 percent of young people who are struggling with gender dysphoria before puberty work their way through it and realign their identity with their sex, but if one of those children go to a counselor and they specifically say that is the help I want, realigning my identity with their sex, they cannot receive that help from someone like my client”

The HighWire reported in April 2024 about a study that found 98% of gender dysphoric children become comfortable with the gender that aligns with their birth sex by the time they reach adulthood. “Gender affirming care” has become the recognized standard of care by medical boards like the World Professional Association for Transgender Health (WPATH), but HHS Secretary Robert F. Kennedy Jr. and the Trump administration have countered this guidance by citing evidence of harm as noted in the Cass Report and calling for more research into psychological interventions rather than medicalized treatments for gender dysphoria.

The HighWire reported in July 2024 that WPATH was concerned about “sloppy” assessments and “opportunism by inexperienced and sometimes dangerous providers.” Despite these concerns, WPATH removed age minimum recommendations under pressure from the Biden administration’s Assistant Secretary for Health, Admiral Rachel Levine, who is a transgender individual. 

A ruling on this Supreme Court case is expected by the summer of 2026.