Supreme Court Reviews Colorado’s Counselor Law

The Supreme Court convened Tuesday to discuss a lawsuit challenging a Colorado law mandating that counselors adopt an affirmative-only stance regarding sexuality and gender identity.

In 2019, Colorado, along with over 20 other states, implemented a law that bans “conversion therapy,” which includes outdated and unethical practices like electroshock therapy. This law broadly prohibits professional services aimed at changing a person’s sexual orientation or gender identity, including attempts to alter behavior or reduce attraction to the same sex.

Kaylee Childs, a Christian and certified counselor, brought the suit against the state, arguing that individuals flourish when they align with their biological sex. She claims it is unlawful to conduct talk therapy with clients—particularly minors—who want to alter their views on sexual orientation or identity.

Childs asserts that Colorado’s law infringes upon the First Amendment by limiting consensual discussions based on expressed views. It only permits counselors to recommend “gender-affirming care” to minors, which may include transitions and medical interventions. Childs describes this approach as experimental and ideologically driven, backed by major medical organizations.

The current conservative majority on the Supreme Court, consisting of six justices, has recently made significant rulings against transgender activism, particularly regarding gender reassignment for minors and LGBTQ+ advocacy in educational settings. A key question remains: does a law that restricts particular discussions between counselors and clients interfere with the Free Speech Clause?

During approximately 90 minutes of oral arguments, liberal Justice Elena Kagan, among others, expressed skepticism about the breadth of Colorado’s law and showed some sympathy towards Childs’ claims regarding free speech.

Justice Samuel Alito was particularly critical of Colorado Attorney General Shannon Stevenson’s defense. He referenced a 2018 ruling where the court dismissed similar arguments concerning a California law compelling pro-life pregnancy centers to provide abortion information.

Alito posed a hypothetical scenario to Stevenson, suggesting that the law might result in viewpoint discrimination, stating:

One perspective is that minors should receive talk therapy to manage same-sex attraction, whereas the opposing view is that they shouldn’t have access to it, even if they want it. This appears to be blatant viewpoint discrimination.

Stevenson countered that both options could comply with the law since the counselor in the scenario did not aim to change the minor’s sexual orientation.

Kagan pressed on this issue, presenting a similar hypothetical to highlight that it seemed like viewpoint discrimination in the conventional sense.

In another part of the discussion, Alito noted that medical standards have sometimes failed catastrophically in the past. He remarked, “Medical consensus is usually very reasonable, but has it ever been politicized?”

Stevenson responded, acknowledging that healthcare politicization is a genuine concern, though he maintained there was no evidence in this case supporting that claim.

Later, Alito emphasized the importance of First Amendment protections when discussing regulations on pure speech rather than just medical standards. He highlighted prior misjudgments in the medical community’s support for practices like eugenics.

In a revealing moment with Justice Neil Gorsuch, Stevenson admitted that the law limits Childs’ ability to assist clients in embracing biological realities, which, in his view, granted her legal standing to sue.

Gorsuch then inquired, “If she wishes to support clients wanting to adjust their behaviors and identities, does that give her a position?” to which Stevenson responded affirmatively.

Justice Sonia Sotomayor interjected, suggesting that this clarification addressed the concern. A few justices indicated they might refer the case back to lower courts for a closer examination regarding First Amendment implications, which could lead to further litigation without necessarily overturning the law.

The case is known as Chiles v. Salazar, U.S. Supreme Court No. 24-539.