WASHINGTON — The Supreme Court agreed Monday to hear a free-speech challenge to laws in Colorado, California and 20 other states that forbid licensed counselors from seeking to change the sexual orientation or gender identity of minors.
Beginning with California in 2012, state lawmakers prohibited “conversion therapy” on the grounds it was ineffective and harmful. They said these treatments led to increased rates of depression, anxiety and suicide.
But the justices voted to hear a 1st Amendment claim from Kaley Chiles, a licensed counselor from Colorado, who contends the law violates her rights to the freedom of speech and the free exercise of religion.
She said her clients “seek Christian-based counseling to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their physical body.”
She says she does not seek to “convert” or “cure” young clients, but argues the state may not “censor” their conversations.
The appeal was filed by the Alliance Defending Freedom, a Christian legal group that has won Supreme Court rulings on behalf of a cake maker and a website designer who refused to work on weddings for same-sex couples.
If the court strikes down the Colorado law, the ruling would almost certainly strike down the similar laws in California and elsewhere.
The new case tests whether “professional speech” may be subject to strict regulation by the state.
Judges have upheld the California and Colorado laws against “conversion therapy” by ruling that states have broad power to regulate the practice of medical and healthcare. This includes licensing and malpractice laws that can penalize doctors or other medical professionals for giving dangerous or highly inappropriate treatment recommendations.
In defense of its law, Colorado state attorneys said the Christian legal appeal argues “mental health professionals’ counseling of their patients is no different from a chat with one’s college roommate.”
Counselors who violate the law can be fined or lose their license. The state noted its law does not “apply to those providing services outside of the professional healthcare context, like religious ministers or life coaches.”
Colorado’s attorneys urged the court to affirm the view that “the 1st Amendment allows states to reasonably regulate professional conduct to protect patients from substandard treatment, even when that regulation incidentally burdens speech.”
But conservatives, led by Justice Clarence Thomas, say the states are using these laws to enforce their own views.
“There is a fierce public debate over how best to help minors with gender dysphoria,” Thomas said, and the state has “silenced one side of this debate.”
He dissented two years ago along with Justices Samuel A. Alito and Brett M. Kavanaugh when the court turned down a similar free-speech challenge to a “conversion therapy” law from Washington state.
“Licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities. Expressing any other message is forbidden — even if the counselor’s clients ask for help to accept their biological sex,” Thomas said.
It takes at least four votes to hear an appeal, which suggests one or more of the justices now agree with Thomas.
The court will hear arguments in the case of Chiles vs. Salazar in the fall.
Still pending before the court is a parallel dispute over state laws limiting the treatment of gender dysphoria.
Tennessee and 23 Republican-led states recently adopted laws prohibiting doctors from prescribing puberty blockers or hormones for minors with gender dysphoria.
The Biden administration sued, contending the state was engaged in unconstitutional discrimination based on gender identity.
However, when the justices heard the case in December, the court’s conservatives said they were inclined to uphold Tennessee’s law on the grounds the state has the authority to regulate the practice of medicine.
