Supreme Court Considers Challenge to Colorado Conversion Therapy Ban

WASHINGTON — On Tuesday, the Supreme Court justices took on a significant case challenging Colorado’s law that forbids licensed mental health professionals from voluntarily providing conversion therapy aimed at changing the sexual orientation or gender identity of minors.

There’s a noticeable divide among the justices: while the conservative members seem dubious about the constitutionality of the 2019 ban, the three liberal justices appear more sympathetic to the arguments made by lawyers on behalf of Christian therapist Kayley Childs.

Chief Justice John Roberts remarked regarding conversion therapists, “Just because they are engaged in the act doesn’t mean they don’t follow their words.”

The Colorado law aligns with regulations in approximately 20 other states, which also prohibit healthcare professionals from offering treatments purported to change a person’s sexual orientation or gender identity.

A lawsuit brought by Chiliz claimed that the prohibition on such talk therapy infringed upon her free speech rights.

“This is an unusual case,” Judge Sonia Sotomayor noted. “We effectively have six years of this law being unenforced—three years prior to this lawsuit and three years after—and we’re left asking, ‘Are we applying this law to your type of treatment?'”

During the oral arguments, Chiliz’s attorney, James Campbell, tried to differentiate between talk therapy and more invasive treatments, such as drug administration and electric shock, although he acknowledged the possibility of regulation for those methods.

Campbell argued, “The law prevents voluntary discussions and censors widely accepted moral, religious, and scientific viewpoints. And aside from this law and similar recent ones, Colorado hasn’t actually confirmed a ban on counseling from that perspective.”

On the other hand, Colorado Attorney General Shannon Stevenson maintained that health professionals known for misconduct are different from those who carry out their duties correctly. “This area has been strictly regulated since our founding, and no one has suggested a First Amendment defense for doctors giving misleading advice to patients,” she stated.

Judges like Sotomayor supported this line of reasoning, proposing that the state could restrict a nutritionist from guiding individuals with anorexia toward further dietary restrictions.

Judge Ketanji Brown Jackson expressed frustration that qualified therapists would find themselves entangled in discussions regarding First Amendment rights.

Conservative justices questioned Stevenson about whether the Colorado ban might amount to discrimination against differing viewpoints. Judge Neil Gorsuch pointed out that homosexuality was once widely regarded as a mental health disorder and asked whether Colorado’s legal framework might permit prohibitions on affirming talk therapy.

Stevenson suggested that such a scenario could be possible.

Additionally, conservative justices pondered the politicization of medical standards over time. Judge Samuel Alito raised the question, “Have medical consensus ever been politicized? Was there ever a period when health professionals believed that people shouldn’t be allowed to give birth due to low IQ?”

Responding to claims that conversion therapy is detrimental to minors, Campbell argued that relying on certain studies was misguided. “Colorado cites research, but those studies have significant flaws,” he noted. “They group spontaneous conversations with shock therapy as if they are equivalent.”

Meanwhile, several justices, including Sotomayor, Jackson, and Barrett, indicated that the case might be referred back to lower courts for a more rigorous constitutional examination.

At one point, Judge Elena Kagan asked Stevenson to consider a scenario in “a country with normal freedom of speech.” She posed a comparison: if one doctor offers to help a patient accept their sexual orientation while another proposes to change it, the differing treatment seems like viewpoint discrimination.

Stevenson agreed, emphasizing her stance that medical speech should be considered distinctly from general free speech.

Chiliz v. Salazar stands out as one of the most notable cases currently before the Supreme Court as the 2023 term has just commenced. Previous rulings by lower courts, including the 10th Circuit Court of Appeals, have upheld Colorado’s law.