WASHINGTON — The Supreme Court seemed wary of conversion therapy bans after hearing oral arguments in Chiles v. Salazar on Tuesday.
Chiles v. Salazar examines whether Colorado’s law banning conversion therapy for minors violates a therapist’s right to free speech or the practice is subject to regulation because it is a form of professional conduct. Conversion therapy is a widely studied and criticized practice of trying to change someone’s sexual orientation or gender identity through therapy.
Kaley Chiles, a licensed therapist and self-identified Christian, filed suit in 2022 against Colorado’s law prohibiting conversion therapy for minors. She said she works with her clients in pursuit of their stated goals related to sexuality, religion and identity, and she argues the ban makes it harder for her to have these conversations with her minor clients.
The U.S. Court of Appeals for the Tenth Circuit ruled in favor of Colorado’s law, stating that conversion therapy is a form of professional conduct and therefore subject to state regulation, and can be banned.
The Supreme Court Justices used their questioning on Tuesday to discern whether talk-based therapy, including conversion therapy, should be classified as a form of speech or professional conduct.
“An activity that is being licensed and that is being performed — it really isn’t speech,” Justice Ketanji Brown Jackson said. “That speech is the tool that is being used, just like in other medical treatments you have scalpels, you have tools that medical professionals use to accomplish certain goals and to provide treatment.”
In general, the justices seemed skeptical of Colorado’s argument that the speech used in therapy is professional conduct and separate from the type of expression protected by the First Amendment.
“Just because they’re engaged in conduct doesn’t mean that their words aren’t protected,” Chief Justice John Roberts said.
The case was also often compared to the 2018 decision in National Institute of Family and Life Advocates v. Becerra, in which the Supreme Court ruled that professional speech is not excluded from First Amendment protections.
Justice Samuel Alito said that by considering talk-based therapy as professional speech, he did not see a distinction between the two cases.
Lisa Diamond, a psychology professor at the University of Utah, said numerous studies have found that conversion therapy increases the risk of anxiety, depression and suicidal ideation for minors.
For Diamond, the argument that conversion therapy bans regulate speech rather than regulate professional treatment reflects a common misconception that talk-based therapy is not as effective as other medical treatments.
“When you are telling an adolescent that the way that they are — their gender, their sexuality — is bad, shameful and makes them unlovable and unacceptable to God and their family — that is one of the most damaging things that anyone can do,” Diamond said. “So the fact that it’s talk therapy does not make it safe.”
Hoover Institution Senior Fellow Eugene Volokh warned that considering talk-based therapy as a type of professional conduct rather than speech could set a dangerous precedent, and allow more speech to be subject to regulations.
“When the only thing that is being conducted, (the) only thing that is being done, is communication, then I think it’s a mistake to try to just reframe it as a conduct restriction,” Volokh said. “Really this is a restriction on speech.”
The Supreme Court is expected to issue an official ruling by next summer.
