Repost: Ryan Thoreson: The Harms of Speech [regulatory and legal landscape shaping conversion therapy restrictions in the United States]

The United States Supreme Court seems poised to strike down state restrictions that prohibit medical professionals from engaging in so-called “conversion therapy,” or efforts to make a lesbian, gay, bisexual, or transgender (LGBT) person heterosexual or cisgender. Although the Supreme Court has declined to hear similar challenges in the past, the arc of its First Amendment jurisprudence and its skepticism of constitutional claims involving sexual and reproductive rights suggest that the restriction at issue is likely to be invalidated.

In this post, I examine the regulatory and legal landscape shaping conversion therapy restrictions in the United States, the challenge that is currently before the Supreme Court in Chiles v. Salazar, and the potential avenues that the Court might take to resolve the case, with broader or narrower repercussions for the regulation of professional speech and the future of equality claims.

Conversion therapy regulation in the US

Pseudo-therapeutic interventions to change sexual orientation or gender identity have a long history. As same-sex attraction and gender nonconformity were long seen as mental illnesses rather than forms of human diversity, medical and psychiatric professionals used a variety of interventions, ranging from talk therapy that shamed and diminished individuals to aversive conditioning that used physical stimuli to associate pain, discomfort, and nausea with same-sex attraction or gender nonconformity.

Alongside the depathologization of same-sex attraction and gender nonconformity, medical professionals have recognized that attempting to change these traits is not only ineffective, but can be psychologically damaging. For example, peer-reviewed studies have found that LGBT youth who reported undergoing conversion therapy are more than twice as likely to report suicide attempts, contemplating suicide, and depressive symptoms, while support from adults and medical providers reduced the risk of those harms. Like the bans themselves, many of these studies focus on the particular dangers that conversion therapy poses to minors, who may face family rejection because of their sexual orientation or gender identity and often lack the resources or meaningful autonomy to refuse such treatment.

As a result, virtually every mainstream medical association – including the American Medical Association, the American Psychiatric Association, the American Psychological Association, and the American Academy of Pediatrics – has condemned these practices. Many have expressly called for states to act to ban conversion therapy. In recognition of these harms, as of 2025, twenty-three states have adopted legislative bans prohibiting licensed medical providers from engaging in conversion therapy, while another four states have more limited restrictions.

These laws have been upheld multiple times in the face of legal challenges. The Third, Ninth, and Tenth Circuit Courts of Appeals have all upheld statewide conversion therapy bans, while the Eleventh Circuit Court of Appeals invalidated municipal conversion therapy bans in 2022. The Sixth Circuit Court of Appeals is now poised to decide a similar case even as the Supreme Court considers the issue.

Colorado’s law and the Chiles v. Salazar litigation

Among the many states that have adopted conversion therapy bans is Colorado, which enacted its Minor Conversion Therapy Law (MCTL) in 2019. The MCTL amended the state’s Mental Health Practice Act (MHPA), which provides for the licensure and regulation of mental health professionals in the state. Specifically, the MCTL added a provision to the MHPA that prohibits licensed professionals from providing conversion therapy to minors, defining conversion therapy as “any practice or treatment… that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” It does not, however, include practices or treatments that provide “acceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices” and does not prohibit “[a]ssistance to a person undergoing gender transition.” Notably, too, the MHPA only regulates the conduct of licensed professionals in the state, and exempts anyone who is “engaged in the practice of religious ministry” from its scope.

Kaley Chiles, a licensed counselor, sued the state of Colorado in 2018, saying that the law would prohibit her from engaging in counseling with minors. Chiles says that she does not try to convert her clients to become heterosexual or cisgender, but that in the past she has worked with minors who want counseling – sometimes in accordance with their religious faith – “to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] physical body.”

Chiles sought a preliminary injunction to enjoin enforcement of the MCTL in federal court, claiming the law violated her First Amendment rights to free speech and free exercise. The district court denied that injunction. A divided panel of the Tenth Circuit Court of Appeals affirmed the district court’s decision. It ruled that Chiles did have standing to challenge the law on First Amendment grounds despite the state disclaiming an intent to enforce the law against her, but found that the district court had not erred in finding that she was unlikely to succeed on the merits of her challenge, denying her relief.

In late 2024, Chiles sought a writ of certiorari from the Supreme Court, which earlier this year agreed to hear her appeal. The United States filed an amicus brief supporting Chiles’ position, and advanced that position at oral argument as well. While the justices seemed likely to side with Chiles, how they decide the case is going to be significant not only for LGBTQ youth but also for state regulation of professional conduct, including the practice of medicine and protection of public health.

What’s (potentially) at stake in Chiles v. Salazar

On appeal, Chiles and the State of Colorado frame the law and its operation in distinctly different ways, and rely on different lines of First Amendment precedent to justify their positions.

Chiles argues that her counseling is purely speech, and is neither conduct nor speech that is incidental to conduct. She contends that, because the Supreme Court has previously indicated that professional speech is not a special category of speech for First Amendment purposes, her counseling should be treated like any other expression. Chiles contends that, because the MCTL regulates the content and viewpoint of her speech, it should be subject to strict scrutiny. Under that standard, Colorado would have to show that it has a compelling state interest in prohibiting speech that seeks to change or repress a minor’s sexual orientation or gender identity, and that the MCTL is the least speech-restrictive way to advance that interest.

In response, Colorado argues that Chiles lacks standing because she does not run afoul of the law, disclaiming any intent to enforce the law unless a person is actually aiming to try to change a person’s sexual orientation or gender identity. Colorado also argues that conversion therapy is conduct, not speech, when it is offered as a form of professional healthcare treatment. Even in National Institute of Family & Life Advocates (NIFLA) v. Becerra, which found that professional speech is not immune from First Amendment review, the Supreme Court indicated that states could prohibit medical treatment that violates a standard of care, even if that treatment involved speech. As a regulation of medical treatment, the state argues, the statute should be subject to rational basis review, whereby the law should be upheld so long as the state has a legitimate interest in prohibiting conversion therapy and the MCTL is rationally related to that interest.

At oral argument, the majority of the justices seemed skeptical of the notion that Chiles lacked standing in the case. Although Justice Sotomayor in particular questioned whether Chiles’ counseling actually risked prosecution by the State of Colorado, that argument seemed unlikely to carry the day. Justice Gorsuch sought and received clarification that Chiles was also willing to explore changes to identity and not just behavior and expression, putting her counseling at odds with the statute. Similarly, Justice Alito’s line of questioning suggested that even if Chiles was not overtly seeking to change a person’s sexual orientation or gender identity, a plain reading of the statute would prohibit counseling aimed at reducing same-sex attraction and behavior and encouraging individuals to embrace their sex assigned at birth.

The Court did seem to recognize, as did Chiles’ attorney, that the state’s power to regulate conduct and speech incident to conduct is not in question in the case. As some small consolation, that means that licensed professionals who use physical techniques, aversive approaches, medication, and other forms of treatment are likely to remain covered by conversion therapy bans even if the Court rules for Chiles.

Justice Barrett’s questions seemed to go further, asking whether Chiles’ counsel thought there might be a similar argument if Chiles was sued for malpractice for violating a standard of care. While he responded that she’d have other defenses and protections in a malpractice suit, the question raises the possibility of a more extreme holding that would closely scrutinize common law tort remedies and not only legislation limiting professional misconduct. In light of the Court’s strong sympathies for religious litigants invoking the First Amendment, including in cases where the freedoms of speech and religion have limited equality protections for LGBT people, it seems likely that the Court will invalidate at least some aspects of Colorado’s ban. But the way they reach that conclusion, and how broadly their holding extends, is likely to matter greatly.

There are, of course, scenarios in which Colorado’s law could be upheld. While it seems unlikely, the Court could find that Chiles has not established standing. It could also find that, as other courts have found in similar challenges, the law regulates conduct and not speech – that is, when therapy is offered as a medical treatment to a client seeking a service, it amounts to conduct even when it is primarily or even exclusively performed through speech.

Alternatively, there are ways the Court could rule for Chiles on free expression grounds in a way that still preserves some capacity for the regulation of conversion therapy and speech that breaches a standard of care to cause harm to LGBT minors. One possibility that Justice Sotomayor seemed to advocate at oral argument was that if the law was found to be a content- or viewpoint-based regulation of speech, the Court should remand it to determine whether the state can meet that burden. That would allow Colorado to put forward evidence of the harms of conversion therapy, and potentially show that its regulation is justified because of the ample proof that such counseling exacts real harm. Or the Court could find the MCTL infringes on free expression, but spell out how a similar end could be achieved in content- or viewpoint-neutral ways – for example, proscribing treatment that violates a medically indicated standard of care. Somewhat surprisingly, Justice Kagan’s questions suggested that she might be inclined to adopt that position, though it is difficult to imagine more conservative justices joining that approach.

The most likely outcome is that the Court will extend its ruling in NIFLA, which suggested that professional speech is protected by the First Amendment but that states may adopt laws that either require the disclosure of factual, noncontroversial information or regulate professional conduct that incidentally involves speech. The Court in Chiles seems poised to adopt a narrow construction of the second category, finding that any professional activity achieved through speech alone receives the full protection of the First Amendment. That could have seismic effects not only in medicine but in virtually any licensed profession where professionals are held to certain standards in their provision of advice, guidance, information, referrals, or other speech acts.

While that would be a significant blow to consumer and client protections across a range of professions, the worst-case scenario would be one in which the Court invalidates the MCTL in a sweeping manner that seems to broadly insulate conversion therapy and other harmful treatments from legal repercussions. Such an approach would go far beyond the precedent in NIFLA, not only restricting the state’s regulation of professional treatment but also limiting remedies in tort for those who are harmed by practitioners who offer dangerous or substandard treatment that is physically or psychologically harmful.

If there is any silver lining to be found in a loss in Chiles, it is that a ruling striking down Colorado’s ban could – if fairly applied – provide protection for speech that is affirming of sexual orientation and gender identity in other contexts, insulating it from state regulation. As Justice Gorsuch pointed out, the same protections for speech might prohibit a state from adopting a law that counsels that homosexuality or gender nonconformity are mental illnesses, and counsel for the United States pointed out that those protections would equally prevent those states that have banned gender-affirming care in the form of puberty blockers, hormones, and surgical interventions from also banning gender-affirming talk therapy.

The silenced minority

Just as notable as the precedents and arguments at issue in Chiles was what the Court largely ignored. As in many recent cases – including United States v. Skrmetti, which upheld state bans on gender-affirming care for minors, and Mahmoud v. Taylor, which found that parents have a First Amendment right to bar their children from accessing LGBT-inclusive curricula in schools – the lives and voices of LGBT youth were once again conspicuously absent from the Court’s reasoning. Chiles purports to speak for minors who she says are uncomfortable with their identities, and the Court seems to take her at her word, without any real interrogation of the coercive elements of conversion therapy on minors and how discomfort with one’s sexual orientation or gender identity is often a product of a climate of anti-LGBT discrimination and inequality that the Court seems disinclined to address.

Like in Skrmetti, where the Court focused on detransitioners rather than those young people who maintain a transgender identity, or Mahmoud, where it privileged parental rights and ignored the rights of children to access information, how LGBT children would fare if the state’s ban on conversion therapy was invalidated seemed to be an afterthought at the oral argument in Chiles. However the case is decided, it unfortunately seems likely that it will not be based on any real appreciation of the rights and well-being of young people who are sent to conversion therapy against their will, who find it psychologically damaging, or who seek it out because they are ashamed of their gender or sexuality and later come to regret that choice.

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