Should politicians tell therapists what they can and cannot say to patients? This week the U.S. Supreme Court agreed to review a case involving Colorado’s Minor Conversion Therapy Law. The law prohibits mental health professionals from challenging a minor client’s sexual or gender identity. The counselor can challenge other beliefs and practices but not those.
“I’m facing a serious challenge,” said plaintiff Kaley Chiles, a Colorado Springs counselor. “This law silences diverse perspectives and interferes with my ability to serve my clients with integrity. Children today are struggling with complex issues, and they need space to explore their feelings and concerns. Unfortunately, Colorado’s law pushes them toward harmful medical interventions like drugs and surgeries by prohibiting supportive conversations that could help them navigate their struggles in a healthier way.”
Twenty states have banned conversion therapy over the past decade since the Ninth Circuit Court ruled in Pickup v. Brown and Welch v. Brown. Those cases regarded the constitutionality of California Senate Bill 1172, which banned conversion therapy. The cases classified talk therapy treatments as conduct rather than speech. As conduct, the court ruled, speech can be regulated. These cases were not the last word, however. The Third, Ninth, Tenth and Eleventh Circuits have split on the issue and the case is ripe for the high court.
The Eleventh Circuit, for example, ruled in Otto v. City of Boca Raton that county and city ordinances banning the therapy practice violated the First Amendment’s free speech protections. The District Court ruled against the two therapists, but the Court of Appeals overturned the ruling on the grounds that content-based speech restrictions had to pass strict scrutiny. The government, the court ruled, cannot quash views and speech it considers unpopular. “Forbidding the government from choosing favored and disfavored messages is at the core of the First Amendment’s free-speech guarantee,” wrote the court.
These cases are not only about free speech but pit opposing worldviews against each other.
Some people believe that all gender expressions and sexual orientations are valid expressions of human sexuality. Others believe that human sexuality should be expressed within a male-female covenant and that male and female sexuality are immutable qualities determined by chromosomes present at the beginning of life.
Individuals who believe the latter and would like help to deal with unwanted sexual or gender feelings have the right to seek out providers like Chiles, and counselors, psychologists and psychiatrists should be able to provide that care. Under current law, however, medical providers are not allowed to provide conversion therapy without risking a fine and the loss of their license.
Counselors must turn away patients or be compelled to affirm what they do not believe to be in the patient’s best interest. Laws that restrict or compel speech are unfair to both counselors and patients.
Chiles and her patients have a strong case and the U.S. Supreme court has recently been friendly to free speech rights. In 2023, a 6-3 Supreme Court majority upheld Lorie Smith’s rights in 303 Creative LLC v. Elenis to not create websites for gay weddings.
The court ruled Smith doesn’t have to face the choice between creating speech or remaining silent.
In Chiles v. Salazar the same principle applies. The government cannot coerce mental health professionals to create speech with which they disagree in violation of their professional judgment or to remain silent.
Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer.
Sign up for Sound Off to get a weekly roundup of our columns, editorials and more.
To send a letter to the editor about this article, submit online or check out our guidelines for how to submit by email or mail.