A majority of the Supreme Court signaled Tuesday it is prepared to rule against Colorado’s ban on “conversion therapy” for minors, with several justices indicating they sympathize with a licensed counselor who says the law violates her First Amendment rights.
In one of the most significant cases the high court will address this year, the justices were asked to decide if states may ban the discredited practice, which purports to “convert” gay people to heterosexuality or transgender people to cisgender. The outcome could have sweeping implications: Advocacy groups say roughly half of US states have banned the therapy for minors.
During a surprisingly low-key and short 90-minute session, several justices appeared to reject the idea the state can regulate “talk therapy” the same way it may regulate medical conduct. Much of the debate seemed to focus on how Colorado would lose, rather than whether it would do so.
Chief Justice John Roberts pointed to prior Supreme Court decisions in which the court declined to carve out a different First Amendment approach to professional speech. It was a theme several of the court’s conservatives returned to repeatedly.
“Just because they’re engaged in conduct doesn’t mean that their words aren’t protected,” Roberts said.
Kaley Chiles, a licensed counselor in Colorado, has challenged the law on those grounds. Her “faith-informed counseling” would be “speech only” and she says her clients would voluntarily seek her services. She rejects the term “conversion therapy” and instead describes the work she hopes to do as helping clients who “have a goal to become comfortable and at peace” with their body.
Colorado walked into the argument on Tuesday at a disadvantage. The 6-3 conservative Supreme Court has taken an expansive view of the First Amendment and, in recent years, it also repeatedly ruled against LGBTQ rights. Earlier this year, the court upheld a Tennessee law banning puberty blockers and hormone therapy for transgender minors.
In that case, US v. Skrmetti, a 6-3 majority ruled that difficult decisions about transgender care would be better left to state legislatures.
“I’m wondering why this regulation at issue here isn’t really just the functional equivalent of Skrmetti,” Justice Ketanji Brown Jackson pressed an attorney for the Trump administration, which sided with the therapist. “It just seems odd to me that we might have a different result here.”
Jackson, a member of the court’s liberal wing, said that from a “very, very broad perspective” she was “concerned about making sure that we have equivalence with respect to these things.”
Hashim Mooppan, arguing for the Justice Department, fired back that from “a very broad perspective, there shouldn’t be equivalence” because the Chiles case involves the First Amendment while Skrmetti did not.
The exchange spoke to the rub in the case: Whether therapy is more like medical conduct or speech. Most of the court seemed to agree with Chiles that it was speech likely protected by the First Amendment.
Colorado and other states have pointed to research showing that the practice doesn’t work and can be harmful. Some of that research shows it increases a person’s risk of suicide and can cause other long-term health problems, such as depression, anxiety and high blood pressure. Children who undergo conversion therapy are more than twice as likely to run away.
But Alliance Defending Freedom, a religious law group, has argued those studies conflate “aversive” forms of therapy with the kind of “talk therapy” their client, Chiles, wants to engage with. It’s a point Chiles’ attorney James Campbell included in his opening and closing statement.
“Colorado can’t prove harm because it hasn’t cited a study focusing on what’s at issue here – voluntary speech between a licensed professional and a minor,” Campbell told the justices.
It was a point that several justices appeared to zero in on. Conservative Justice Amy Coney Barrett pressed Colorado’s attorney for her best evidence that the practice causes harm.
“People have been trying to do conversion therapy for a hundred years with no record of success,” Colorado Solicitor General Shannon Stevenson told the court. “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.”
The harm, Stevenson said, “comes from telling someone there’s something innate about yourself that you can change.”
Justice Samuel Alito, another conservative, pressed Stevenson on another point: How much stock the court should put into medical consensus. Alito described medical consensus as “very reasonable” and “very important” but then pushed Stevenson to acknowledge whether the consensus can change.
“Have there been times when the medical consensus has been politicized – has been taken over by ideology,” Alito asked. “Was there a time when many medical professionals thought that certain people should not be permitted to procreate because they had low IQs?”
Isn’t that a reason, Alito asked, to apply First Amendment protections rather than deferring to the medical consensus on conversion therapy?
“There is nothing about this statute that stops anyone from sharing any opinion about conversion therapy or about how the consensus on that was reached,” Stevenson responded.
Despite the charged nature of the issue, the court’s arguments Tuesday were relatively understated. The justices zipped through the attorneys representing Chiles and the federal government with unusual speed.
Throughout the course of the argument, there were times when the court’s three-justice liberal wing appeared to be focused mainly on attempting to limit the impact of a ruling against Colorado. The court could apply a heightened form of First Amendment scrutiny to the law and require a lower court to review it again under that standard. That option would not strike down the law – though it would leave it exceedingly vulnerable – and Colorado could try to justify the requirement again before a trial judge.
A decision in the case is expected before the end of June.
