‘Conversion Therapy’ Ban Hits Supreme Court

WASHINGTON—The U.S. Supreme Court seems poised to rule against Colorado’s law banning so-called “conversion therapy” for LGBT youth.

During a hearing on Tuesday, several justices appeared sympathetic to a therapist’s challenge to the ban on the grounds that it violates her First Amendment rights to free speech. Lower courts had ruled that the law regulates a therapist’s conduct, finding that any infringement on her speech was incidental.

Colorado’s Prohibit Conversion Therapy for a Minor Law was enacted in 2019, and bans licensed therapists from trying 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.”

Violators of the law face fines up to $5,000.

Colorado therapist Kaley Chiles sued to overturn that law in 2022, on the grounds that it violated her First Amendment free speech rights.

Colorado Solicitor General Shannon Stevenson, arguing on behalf of the state, said on Oct. 7 that such therapy is harmful and that states have a right to ban it.

“People have been trying to do conversion therapy for a hundred years, with no record of success,” she said.

“There is no study—despite the fact that people tried to advance this practice—that has ever shown that it has any chance of being efficacious.”

Justice Clarence Thomas asked: If Chiles were not a therapist, would her speech be protected by the First Amendment?

Stevenson said, “Yes,” noting that the law contains an exemption for religious ministers engaging in such practices. The difference, she said, comes from Chiles being a licensed therapist, which means the state has a duty to regulate her conduct.

Justice Neil Gorsuch also presented Stevenson with a hypothetical: Noting that homosexuality was considered a mental illness until the 1970s, he asked whether a state back then could have legally barred therapists from affirming a patient in their same-sex attraction.

Stevenson said, “Yes.”

James Campbell, chief legal counsel of Alliance Defending Freedom, which is representing Chiles, said the state law was an example of “viewpoint discrimination.”

Colorado’s law would allow a 12-year-old to receive therapy affirming a transgender identity, he said, but would not allow a therapist to try to help change that identity to match the person’s biological sex, even if the client wanted to do so.

In the petition to the court, Campbell also cited studies which found that 98 percent of youth experiencing gender dysphoria before puberty eventually realign themselves to match their biology—but that Colorado’s law would not allow them to seek help from a licensed therapist to do so.

More than 20 states, including Colorado, have laws prohibiting conversion therapy for minors. Five states have laws or rulings that bar local officials from making the therapy illegal.

—Stacy Robinson

BOOKMARKS

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—Stacy Robinson