As debates have intensified over issues involving the rights of LGBTQ+ individuals, some states have adopted laws prohibiting so called conversion therapy (especially for minors), which is aimed at changing an individual’s perceived gender to that of their birth or in combatting same-sex attraction. There is a general consensus that such therapy is generally ineffective.
Colorado barred using talk therapy to convert LGBTQ+ minors
The state of Colorado adopted legislation designed not only to prevent shock therapy and other medical procedures for bringing about such changes for minors but also legislation prohibiting licensed counselors from using talk therapy to change such identity or attraction. It did, however, permit therapists to provide talk therapy to aid those who were seeking gender transition.
Kaley Chiles, who has a master’s degree in clinical mental health and a Colorado counseling license and engages in faith-based talk therapy, challenged the Colorado law as a violation of her First Amendment freedom of speech. She was represented by Alliance Defending Freedom. She explained that she used talk therapy to help clients reach their goals, whether they are to align with their cis-gender or sex preferences or to transition to another gender to change their sexual preferences.
Although she lost her case at both the district and circuit court level, neither of which applied strict scrutiny, the U.S. Supreme Court agreed with her in an 8-1 decision. It was written by Neil Gorsuch. Justice Elena Kagan authored a concurring opinion joined by Sonia Sotomayor. Justice Ketanji Brown Jackson dissented.
Court: Law is unconstitutional restriction on freedom of speech
Noting that the only kind of treatment that Chiles offered is talk therapy, Gorsuch observed that the Court was wary of content-based restrictions on freedom of speech, and even more wary of so-called viewpoint discrimination, which permitted the expression of views on one side of an issue but not of others. The only exceptions that the court had carved out involved fraud, defamation and so-called fighting words. All other such content discrimination should be subject to strict scrutiny.
Moreover, Gorsuch cited Cohen v. California (1971) (involving coarse language on a man’s jacket opposing the draft) and Holder v. Humanitarian Law Project (2010) (banning material support to certain alleged terrorist organizations) to say that content discrimination could not be countenanced simply because it was connected to non-expressive conduct.
Whereas Justice Jackson’s dissent would have upheld the law on the basis that it was a regulation of health professionals, Gorsuch argued that restrictions as to what constituted permissible speech crossed this line.
Gorsuch: Regulation of speech content requires strict scrutiny
In discussing talk therapy, Gorsuch said that “the spoken word is perhaps the quintessential form of protected speech, which does not lose its protection simply because it can be described as therapy.” As he phrased it, “The First Amendment is no word game.” He cited other cases that established that such content regulation required the court’s highest level of scrutiny, known as strict scrutiny.
Gorsuch said that there was no evidence that Colorado’s regulations were part of a long historical tradition, or that regulation of speech fell under state licensing requirements. He pointed to the danger of the government deciding what speech was acceptable versus unacceptable. He noted that there had been a time when psychiatrists thought that homosexuality was an illness, and that sterilization was appropriate for individuals with mental defects, and that “reflexive deference” to such “prevailing professional views may not always end well.”
In concluding, he observed that “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.” Jackson dissented, saying states have power to regulate practice of medicine.
Jackson dissent: State has power to regulate practice of medicine
Kagan’s concurring opinion said that the case would have been closer had Colorado enacted “a content-based but viewpoint-neutral law.” Justice Jackson based her argument on Lambert v. Yelowley (1926), in which the Court had said that “there is no right to practice medicine which is not subordinate to the police power of the States.”
The American Psychological Association raised concerns about the ruling and its possible effect limiting the regulation of therapy. And others have wondered how it will affect state laws that prohibit doctors from counseling patients on the option of abortion
But at least one organization that has two pending medical free speech lawsuits, the Children's Health Defense, has praised the ruling. The organization is suing state medical boards in California and Washington over policies targeting doctors who promote misinformation about COVID.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.