The Supreme Court will hear oral arguments Tuesday in Chiles v. Salazar, which challenges a Colorado law banning licensed mental health practitioners from trying to change a young person’s sexual or gender identity — a practice widely known as conversion therapy.
It’s the first time the nation’s highest court has accepted a case on such prohibitions, and how the justices rule could have far-reaching consequences for the regulation of medicine and the balancing of civil rights for LGBTQ+ people against religious freedom, since conversion therapy is often conducted in a religious context or by religious leaders.
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“The stakes are very high in terms of conversion therapy itself — because it is so incredibly dangerous and harmful — but also [there are] much broader ramifications for states’ ability to regulate medical care,” said Shannon Minter, legal director for the National Center for LGBTQ Rights, a legal group that filed an amicus brief in support of Colorado’s law.
Since 2012, almost half of U.S. states have banned licensed counselors from performing conversion therapy on minors, even if clients say they want it. Conversion attempts, including psychological or behavioral counseling, aversion therapy, and religious rituals have historically targeted gay youth, but trans or nonbinary people also report undergoing these experiences. Research has shown that going through conversion therapy is linked to greater symptoms of depression, PTSD, and suicidal thoughts. One study found that lesbian, gay, or bisexual people who experienced the practice were almost twice as likely to consider suicide as their peers.
Restrictions on clinician participation have expanded the public’s understanding of the harms the practice causes, according to Marie-Amélie George, a professor and historian of LGBTQ+ rights at Wake Forest University School of Law.
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“It seemed like a way to publicize how dangerous this could be,” George said about the wave of legislation over the last decade, “so that parents who were looking into potentially doing this could have a better sense of what effect it could have on their child.”
Licensed counselor Kaley Chiles brought her case to federal court in 2022, arguing that the Colorado law is a “viewpoint-based speech restriction” that violates her first amendment right to free speech as someone who views her work as “an outgrowth of her Christian faith,” according to court documents.
A federal court denied her request for a preliminary injunction, and an appeals court affirmed that decision. But another federal appeals court struck down a similar ban in Boca Raton and Palm Beach Country, Fla., leading to what experts call a circuit split. The Supreme Court is tasked with unifying the rulings.
What to watch for
Tuesday’s arguments will likely revolve around the breadth of the law and whether a therapist’s conversations with clients are constitutionally protected speech or professional conduct subject to regulation, experts said.
There’s strong disagreement between the parties about the meaning of the actual text in Colorado’s law. In court documents, Chiles argues that the law only allows her to speak openly with transgender clients “if she helps them embrace a transgender identity” and not “if those clients choose to align their sense of identity with their sex by growing comfortable with their bodies.” But supporters of the ban say that interpretation mischaracterizes the law. Colorado’s ban specifically describes conversion therapy as concerted efforts to change a person’s sexual orientation or gender identity — meaning that there’s nothing stopping a therapist from hearing and responding to a young client’s curiosity or concern in either direction.
“I would not be surprised for that to be a significant focus of the argument,” Minter said.
The Supreme Court’s recent decision in L.W. v. Skrmetti, upholding a Tennessee ban on gender-affirming care for youth, may also play a key role in the arguments.
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“If they’re going to be consistent and fair and intellectually honest, Skrmetti should essentially decide this case for them,” Minter said. “The issues are almost completely identical, right? Do states have the authority to restrict the type of medical care — here, mental health treatment — where they deem the risks to outweigh the benefits.”
There are important differences between the cases, however. Tennessee’s ban targeted medical interventions such as hormones, while the way clinicians talk with their clients is the core issue here. Professional medical groups in the U.S. support gender-affirming medical care, but have long opposed any type of conversion therapy.
In an amicus brief supporting Chiles, the Trump administration wrote that there is not “requisite evidence” on the harms of talk therapy conversion practices or the benefits of gender-affirming therapy. The brief also cites the former designation of homosexuality as a mental disorder and historical involuntary sterilization of disabled people as evidence of “the dangers of relying on the consensus views of professional organizations to dictate what professionals may lawfully say.”
Like the Skrmetti case, Chiles v. Salazar on its surface focuses on LGBTQ+ health, but experts say everyone will be affected by the decision. “There are so many other things tied up into these cases that we kind of overlook because we’re focused very strongly on the topic area, which is conversion therapy and LGBTQ health,” said Tara McKay, director of the LGBTQ+ Policy Lab at Vanderbilt College. “Which I obviously think is phenomenally important, but the cases themselves are about so much more than this, and have so many more implications.”
Potential impact on health care regulation
States, of course, have other laws that restrict medical care: 12 states have total abortion bans on the books, while 29 have bans starting somewhere between 6 and 24 weeks of gestation. About half of states ban gender-affirming medication and surgery for trans minors. But these laws are largely driven by political and religious views, according to Nicole Huberfeld, a professor at Boston University School of Law who studies the intersection of health and constitutional law, while Colorado’s ban on conversion therapy is based on concerns about safety and effectiveness.
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“What you have is competing visions of how states regulate medicine and whether regulation of medicine should be solely evidence-based or not,” she said.
If the Supreme Court rules that the law violates a clinician’s right to free speech, legal experts who support Colorado’s position said that, at the very least, it could create confusion for medical professionals about what the standard of care is. And some worry that the case could serve as a legal precedent for clinicians who say something that ultimately harms a patient — Minter specifically worried about clinicians making inappropriate sexual advances toward patients — and want to claim free speech as their defense.
An amicus brief from a group of health law scholars points out that there are numerous laws related to medical licensure that ultimately limit speech in the name of proper, legal care. And since talking is inherent to psychotherapy in particular, it’s unclear if any state law governing the practice could still be considered legal if the court sides with Chiles, the scholars write.
“Carving out a free speech exception for any type of care that is composed of verbal communication, that would be a radical shift in the law,” Minter said. “If the Court were to go down that path, it would really lead to, probably, massive deregulation of medical care and leave consumers very vulnerable to harm and mistreatment.”
Chiles’ supporters disagree. In 2018, the Supreme Court determined that professional speech can be regulated when it is incidental to conduct. (For example: A “whites only” sign is speech that can be regulated as it’s incidental to the core discriminatory practice of racial segregation.) Chiles’ lawyers argue in court documents that a therapist’s conversations with clients are neither conduct nor incidental to conduct, so those possibilities for regulation would not be affected by a ruling in favor of their client.
How LGBTQ+ people could be affected
For LGBTQ+ people, the most pertinent implications of the case may not lie with the legality of conversion therapy itself, but with what the case says about the community’s civil rights as a whole.
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“Where do the civil rights protections for LGBTQ+ people end and then civil rights protections for people freely exercising religion or seeking freedom of expression begin?” Huberfeld said. “That tension has been playing out in the courts for years.”
The question was left open in the Supreme Court’s 2015 Obergefell ruling that legalized same-sex marriage; the decision acknowledged that LGBTQ+ couples’ fundamental right to marriage could come into conflict with another person’s free exercise of religion. And it has: there was the baker who refused to make a wedding cake for a gay couple, then the website designer who didn’t want to build wedding websites for gay couples. Each time, the Supreme Court ruled for the business. “They have been trying to limit anti-discrimination laws’ reach by making speech and religion claims,” Huberfeld said. Now, the battle has come to health care.
Chiles’ legal team proposes alternative restrictions on “conduct-based” conversion therapy techniques, such as “rebirthing,” where a child is restrained in a reenactment of the birth experience.
Conversion therapy is most often conducted by religious leaders, and usually so discreetly that it’s difficult to say how widespread the practice is across the U.S. In 2023, the Trevor Project identified more than 1,300 practitioners across the country, including more than 600 who held active professional licenses.
Advocates for LGBTQ+ rights worry that a Supreme Court decision in favor of the therapist will jeopardize the safety of young people who could be subjected to conversion therapy by licensed medical professionals. If the law is struck down, however, it doesn’t mean many clinicians would start attempting conversion therapy. Nor is there any evidence that health insurance companies would pay for it.
A ruling in favor of Chiles could also lead to confusion for parents trying to distinguish what is evidence-based health care and what isn’t, said the advocates. Existing groups attempting to change a person’s sexual or gender identity often adopt the same therapy-speak buzzwords used by genuinely affirming providers, they said. When the Trump administration released its controversial report on gender dysphoria in May, it emphasized the potential for more “exploratory psychotherapy,” which many recognized as a pseudonym for conversion therapy.
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Among dozens of amicus briefs filed in the case is one on behalf of a group of former leaders in the conversion therapy movement who now “publicly repudiate” the practice and oppose Chiles’ argument that licensed clinicians should be able to participate.
“They cannot take back the harm they caused,” the brief states. “But they recognize their unique obligation and opportunity to prevent future damage by sharing what they learned through decades of failed attempts to change sexual orientation and gender identity.”