Supreme Court Rules Colorado Can’t Ban Conversion Therapy for LGBTQ Youth

This story was originally reported by Kate Sosin and Grace Panetta of The 19th. Meet Kate and Grace and read more of their reporting on gender, politics and policy.

The Supreme Court ruled 8-1 Tuesday that a Colorado ban on conversion therapy for youth violates the free speech rights of a Christian counselor, clearing the way for a practice that goes against the recommendations of every major medical association in the country.

Conversion therapy is a pseudoscientific practice in which providers attempt to change a youth’s sexual orientation or gender identity, often through extremely harsh methods including acts of physical, psychological and sexual abuse against minors — electric shock, masturbation reconditioning, starvation, chemically induced nausea and hypnosis, among others.

The United Nations has deemed conversion therapy torture and recommended it be banned.

Twenty-three states and Washington, D.C., have laws banning conversion therapy for minors.

Tuesday’s ruling throws out Colorado’s ban, but does not strike down bans in other states, which advocates feared could be a worst-case scenario. The case, Chiles v. Salazar, was brought by Christian counselor Kaley Chiles, who argued that the ban violated her free speech rights. Chiles says she only offers talk therapy and does not use physical interventions or prescribe medications.

On Tuesday,  justices ruled that Colorado’s law banning the practice improperly regulated Chiles’ right to free speech based on her point of view. Justice Neil Gorsuch wrote the majority opinion; Justice Ketanji Brown Jackson was the sole dissenter.

The majority opinion argued that Colorado’s law applies beyond “physical interventions,” and restricts free speech.

“Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same,” the opinion read. “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.”

The majority opinion held that the right to free speech applies equally to licensed medical professionals as to all Americans.

But in her dissent, Jackson argued that the majority “failed to appreciate the crucial context” of Chiles’ case.  “Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional,” she wrote.

Neither side disputed Colorado’s authority to regulate medical treatments and providers or claimed that a state doing so is unconstitutional, she said.

“So, in my view, it cannot also be the case that Colorado’s decision to restrict a dangerous therapy modality that, incidentally, involves provider speech is presumptively unconstitutional,” Jackson added. “In concluding otherwise, the Court’s opinion misreads our precedents, is unprincipled and unworkable and will eventually prove untenable for those who rely upon the long-recognized responsibility of states to regulate the medical profession for the protection of public health.”

The case is the first of three LGBTQ+ blockbuster cases before the court this term. Two others, involving transgender athletes, were heard at the same time earlier this year.