Supreme Court upholds First Amendment right to ‘conversion’ talk therapy for LGBT kids

The Supreme Court ruled Tuesday against a Colorado law that prohibited a Christian counselor from helping LGBTQ children who want to change their sexual orientation or gender identity, saying as long as it’s just talking, the counselor has free speech rights that the state cannot take away.

Justice Neil M. Gorsuch, writing the key opinion in the 8-1 ruling, said the state can regulate other types of “conversion therapy,” such as physical treatment.

He said Colorado’s law went further by banning licensed therapists from certain lines of conversation, even at the patient’s request. That, the court said, was unconstitutional viewpoint discrimination.

“Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same,” said Justice Gorsuch, a Trump appointee. “But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”

“Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoints,” he wrote.

Justice Ketanji Brown Jackson, a Biden appointee, dissented. She said talk therapy is a medical treatment and states have the power to control such treatments.

Here, she said, Colorado has made the judgment that even talk therapy can harm children. The state had reasoned, in enacting its law in 2019, that conversion therapy leads to increased depression and suicidal thoughts in minors.

“The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel,” Justice Jackson wrote.

The case involved Kaley Chiles, who sought to use her Christian perspective when she counseled families, including those with children facing gender dysphoria or same-sex attraction. The families were willing clients.

She said she couldn’t practice under Colorado’s law, which banned “any practice or treatment … that attempts … to change an individual’s sexual orientation or gender identity.”

The law threatened fines, probation and a loss of license for those in violation.

Ms. Chiles said in a statement that the ruling was a victory for “kids and families everywhere.”

“When my young clients come to me for counsel, they often want to discuss issues of gender and sexuality. I look forward to being able to help them when they choose the goal of growing comfortable with their bodies,” she said.

Alliance Defending Freedom, which represented Ms. Chiles, called the ruling “monumental.” It said more than 20 states and 100 localities had similar laws restricting talk therapy involving gay or transgender youths.

Meanwhile, Colorado Attorney General Phil Weiser, a Democrat who defended the law in court, said the ruling is a “setback for Colorado’s efforts to protect children and families from harmful and discredited mental health practices.”

“To LGBTQ youth in this state and beyond: you are valued, you are worthy, and your health and dignity matter. We will continue to stand up for care grounded in science and for the rights of all children to grow up safe, supported, and respected,” Mr. Weiser said in a statement.

Justice Gorsuch said in his opinion that Colorado’s law would have allowed Ms. Chiles to counsel in favor of a gender transition but didn’t allow her to counsel to realign identity with sex. That, he said, was classic viewpoint discrimination.

He pointed out that the medical community considered homosexuality to be a mental disorder several decades ago, meaning a state law banning talk therapy aimed at affirming someone’s homosexuality could have been upheld.

“Medical consensus, too, is not static; it evolves and always has. A prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow,” he wrote.

Justice Gorsuch said the First Amendment needed to be bigger than that.

“Far from a test of professional consensus, the First Amendment rests instead on a simple truth: ‘The people lose’ whenever the government transforms prevailing opinion into enforced conformity,” he wrote.

Justice Elena Kagan, an Obama appointee who sided with the majority, wrote a separate opinion to say the case would have been tougher to decide if Colorado’s law had been viewpoint-neutral.

She said that in this case, “because the state has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.”

Her concurrence was joined by Justice Sonia Sotomayor, an Obama appointee.

The high court is grappling with a wave of gender identity issues.

In a ruling last year, the court upheld a Tennessee law that banned medical treatment for transgender youths. The state law constrained what the medical community has termed “gender-affirming” medical treatments, such as puberty blockers, hormone treatments or surgery for minors that conflicts with their biological sex.

That ruling was 6-3, along an ideological divide.

Earlier this year, the justices heard arguments in a dispute involving state bans on transgender girls participating in girls’ sports. Two transgender female athletes challenged laws in West Virginia and Idaho that had banned biological males from competing in girls’ sports.

Lower courts had sided with the transgender athletes.

The justices, though, appeared to be leaning toward states with such bans.

A decision in the transgender sports battle is expected by the end of June.