High Court: Law Limiting Talk Therapy Subject to Strict Scrutiny

Any law, including a Colorado law prohibiting licensed counselors from engaging in talk therapy with minors, that suppresses speech based on viewpoint represents an “egregious assault” on First Amendment protections, the U.S. Supreme Court ruled March 31.

“The First Amendment’s protections extend to licensed professionals much as they do to everyone else,” the court said in an 8-1 decision (Chiles v. Salazar) written by Justice Neil Gorsuch. It added later that the First Amendment relies “on a simple truth: The people lose whenever the government transforms prevailing opinion into enforced conformity.”

The court noted that its decision addressed the law only as it applies to talk therapy, not physical interventions or medications.

Colorado Law

In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in conversion therapy with minors. 

The term “conversion therapy” may evoke physical techniques such as “electric shock” therapy aimed at changing an individual’s sexual orientation or gender identity. Colorado’s ban on conversion therapy reaches further, the court noted, forbidding any practice or treatment that attempts to change an individual’s sexual orientation or gender identity. The law forbids any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex. At the same time, the law allows counselors to engage in practices that provide acceptance, support, and understanding for the facilitation of an individual’s identity exploration and development. The law also lets counselors provide assistance to a person undergoing gender transition.

The state said it adopted the law “in response to a growing mental health crisis among Colorado teenagers and mounting evidence that conversion therapy is associated with increased depression, anxiety, suicidal thoughts, and suicide attempts.”

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Any Coloradan who thinks a licensed counselor is engaging in conversion therapy may file a complaint with a regulatory board. A complaint triggers a disciplinary review process that can result in a fine, probation, or the loss of a license.

Kaley Chiles, a licensed mental health counselor in Colorado, filed suit and sought a preliminary injunction prohibiting the state from enforcing the law against her. She did not dispute the statute has many valid applications and did not take issue with Colorado’s effort to ban what she called “long-abandoned, aversive” physical interventions.

Instead, Chiles challenged Colorado’s law as it applies to her talk therapy, which involves only the spoken word — no physical interventions or medications. 

With respect to gender identity, she claimed, the law permits her to speak in ways that encourage a client “undergoing gender transition” but prohibits her from speaking in ways that help a client “realign his identity with his sex.”

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With respect to sexual orientation, she alleged, the law let her affirm a client’s sexual orientation but prohibited her from speaking in any way that helped a client change their sexual attractions or behavior.  

“These constraints strip her of her First Amendment right to speak freely with her clients in ways she believes might help them meet their own goals,” the court said. Chiles said she does not try to persuade her clients to change their attractions, behavior, or identity, but aims instead to help them address their stated goals, including when clients say they want to reduce or eliminate “unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their bodies.”

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Court’s Decision

“The question before us is a narrow one,” the court said. Chiles did not question that Colorado’s law banning conversion therapy has some constitutionally sound applications, the court noted, including the law’s prohibition on physical interventions. She opposed instead the law’s application to her “voluntary counseling conversations” with her clients.

While the 10th U.S. Circuit Court of Appeals in this case applied “rational-basis review” of the law, she argued the statute merited a higher level of scrutiny and more than intermediate scrutiny applied by other lower courts in cases like hers. “We agree,” the Supreme Court said.

“Consistent with the First Amendment’s jealous protections for the individual’s right to think and speak freely, this court has long held that laws regulating speech based on its subject matter or communicative content are presumptively unconstitutional,” the court said. “As a general rule, such content-based restrictions trigger strict scrutiny, a demanding standard that requires the government to prove its restriction on speech is narrowly tailored to serve compelling state interests. Under that test, it is rare that a regulation will ever be permissible.”

The dangers are even greater with regulations that discriminate based on the speaker’s point of view, the court added. “Viewpoint discrimination, as we have put it, represents an egregious form of content regulation, and governments in this country must nearly always abstain from it.”

The fact that the state’s viewpoint regulation targets only licensed health care professionals like Chiles changes nothing, the court said. “The Constitution does not protect the right of some to speak freely; it protects the right of all.”

Colorado maintained its law was constitutional because states have traditionally enjoyed wide latitude to proscribe substandard care even when that involves regulating the content of speech. 

“Whatever traditional interest a state may have in ensuring a professional possesses a particular set of qualifications, that interest does not automatically entail a right to dictate a professional’s point of view,” the court said.

“We do not doubt that the question how best to help minors struggling with issues of gender identity or sexual orientation is presently a subject of fierce public debate,” the court said. “But Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”

Dissent

Writing in dissent, Justice Ketanji Brown Jackson said the majority opinion is “unprincipled and unworkable, and will eventually prove untenable for those who rely upon the long-recognized responsibility of states to regulate the medical profession for the protection of public health.”

She said that conversion therapy is ineffective, adding, “Former participants of conversion therapy report that it causes lasting psychological harm.”

First Amendment principles have far less relevance when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the state’s regulation of the provision of medical care, Jackson said.

“Medical standards are driven by science (objective facts and data), but, naturally they are not viewpoint neutral. Consequently, the people win — not lose — when a state incorporates the medical profession’s viewpoint into laws that require licensed treatment providers to conform to prevailing standards of care,” she wrote. “For this reason, the court has long recognized a state’s power to regulate to protect its residents even in the face of uncertainty.”

States have always had broad power to establish standards for licensing practitioners and regulating the practice of professions, Jackson added, saying the fallout from the ruling “could be catastrophic. Many regulations impact the speech of medical professionals in the context of their provision of health care to patients; the possibilities go far beyond talk therapy and informed consent.”