The Supreme Court of the United States struck down Colorado’s law banning “conversion therapy” for minors because it violates the free speech rights of therapists.
Justice Gorsuch, writing for an 8-1 Court in Chiles v. Salazar concluded that Colorado’s law as applied to the plaintiff, a licensed counselor, restricted her speech and was therefore subject to strict scrutiny. “Under its law, [a therapist] may not speak in any way that attempts to change a client’s ‘sexual orientation or gender identity’—including a client’s ‘behaviors or gender expressions’—or in any way that seeks to ‘eliminate or reduce’ a client’s ‘sexual or romantic attraction or feelings toward individuals of the same sex.’” Thus, “[b]ecause the therapist ‘seeks to engage only in speech’ the statute as applied to her improperly ‘regulates what she may say.’” The Court rejected Colorado’s argument that the statute properly regulated the “conduct” of therapists and only incidentally affected speech. “[T]he State’s law trains directly on the content of her speech and permits her to express some viewpoints but not others. Colorado does not regulate speech incident to conduct; it regulates ‘speech as speech.’” Applying strict scrutiny the statute could not survive.
Justice Kagan concurred (with Justice Sotomayor) that because “the State has suppressed one side of a debate, while aiding the other,” the statute could not survive strict scrutiny. She suggested a “viewpoint neutral” statute might be constitutional under a rational basis analysis.
Justice Jackson dissented, arguing that states like Colorado have “the power to regulate the medical treatments that state-licensed professionals provide to patients” — “[l]ike it or not, treatment standards exist in America.” Justice Jackson referenced the consensus in the medical community that efforts “to change a patient’s sexual orientation or gender identity will necessarily be ineffective,” and result in harm to patients, particularly minors. That “professional medical speech” was impacted did not make the statute subject to strict scrutiny as it “restrict[ed] a medical provider’s speech only as part of its regulation of the provision of medical treatments to individual patients.”
As a result of Chiles v. Salazar, similar statutes, executive orders and municipal ordinances banning conversion therapy are now not enforceable.