Protesters picket the Supreme Court on Tuesday as the highest court in the land hears oral arguments for Chiles v. Salazar, which could reverse bans on conversion therapy. (Washington Blade Photo by Michael Key)
The Supreme Court heard arguments on Oct. 7 in the case of Chiles v. Salazar, which could reverse conversion therapy bans across the United States.
Kaley Chiles, a Christian therapist from Colorado, works as a counselor specializing in serving clients who often seek “religiously informed care” that aligns with traditional biblical understandings of sexuality and gender. She has argued that a 2019 Colorado law HB19-1129, also known as the “Prohibit Conversion Therapy for a Minor Act,” violates her First Amendment rights.
The act serves as a regulatory law in the state and was put in place to prevent any potential harm that numerous studies by health associations across the country — including the American Psychiatric Association, the American Psychological Association, and the American Medical Association — show this particular form of “therapy” can cause. From an increased risk of suicide to being comparable to torture by the United Nations, 23 other states, as well as the District of Columbia and Puerto Rico, have passed laws restricting the practice.
Chiles brought forward a pre-enforcement lawsuit against the state, arguing that the way the law is set up has caused a chilling effect on her ability to provide her “faith-informed” services to clients with religious preferences — often religious parents — and has made her stop any discussions that could be related to sexuality or gender identity. She argues this violates her right to the Free Speech Clause of the First Amendment.
A majority of the justices appeared to be sympathetic to Chiles’s argument that the conversion therapy ban limits her religious rights on the basis of viewpoint — indicating it may infringe on free speech. Justice Samuel Alito went as far as to say that the law was “blatant viewpoint discrimination.”
Other members of the court, however, raised questions regarding Chiles’s standing, or the right to fight back against the law, as the ban was not explicitly enforced, nor was Chiles charged with anything. Justice Sonia Sotomayor went on to say that the sheer lack of enforcement undermines the idea of an “imminent threat,” while Justice Ketanji Brown Jackson suggested that the law’s regulation of professional conduct falls within a state’s traditional authority to oversee medical practices.
Several justices, notably Amy Coney Barrett, seemed to think this case should be sent back down to a lower court for further examination under a stricter constitutional standard.
Justice Sonia Sotomayor questioned the legitimacy of Chiles’s claim of harm, asking, “We have basically six years of no enforcement of this law… how does that fit into being an imminent threat of prosecution?”
Justice Elena Kagan pressed the need for scientific evidence, saying, “You need to have studies, not just intuitions that harm exists. You need to have a scientific showing of causation rather than rely on your intuitions that this causes harm.”
Justice Brown Jackson expressed skepticism over the First Amendment framing, noting, “It’s just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would just be prescribing medication for that rather than her talking with the client.”
Justice Alito, meanwhile, raised concerns about politicization within medicine, asking, “Have there been times when the medical consensus has been politicized, has been taken over by ideology?”
Justice Coney Barrett questioned how far a state’s authority should go in cases of medical disagreement. “So let me describe medical uncertainty as competing medical views, and let’s say that you have some medical experts that think gender-affirming care is dangerous to children and some that say that this kind of conversion talk therapy is dangerous. Can a state pick a side?”
James A. Campbell, who represented Chiles in court, said that not only is Chiles’s speech being censored, but by not allowing Chiles to continue providing this type of “therapy,” the government is causing harm to families who want their children to receive this type of treatment.
“There is irreparable harm going on right now. Ms. Chiles is being silenced. The kids and the families who want help… are being left without any support,” Campbell told the Supreme Court justices. “This is an ongoing active dialogue where she’s helping them to explore their goals, and that absolutely has to be protected by the First Amendment.”
Shannon W. Stevenson, the Colorado Solicitor General who worked on behalf of the state, argued that an overwhelming amount of medical advice cites this type of “therapy” as more destructive than helpful, and that no other medical restriction laws specifically allow a doctor to give patients incorrect information because it goes against their religious beliefs.
“The medical consensus has been around for a very long time. Those types of statutes govern medical professionals… and no one has ever suggested that a doctor has a First Amendment defense to say the wrong advice to their patient,” Stevenson said.
“The harms from conversion therapy come from when you tell a young person you can change this innate thing about yourself. They try and fail, and then they have shame and they’re miserable,” she added.
Kelley Robinson, president of the Human Rights Campaign, America’s largest LGBTQ civil rights organization, issued a statement following the court’s arguments.
“Today’s oral arguments made clear that, as Colorado’s solicitor general stated, history, precedent, and commonsense must allow states to hold licensed providers accountable to the recommendations of every mainstream medical and mental health association in this country. The Supreme Court must uphold the constitutionality of these legal restrictions and stand strongly between our children and these abusive practices.”
While it may be months before a decision on this case is brought forward, the decision, expected by summer, could have implications for whether states are allowed to regulate conversion therapy as a form of medical treatment, or if they encroach on the First Amendment.
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