The Supreme Court announced on March 10 that it will review a decision by the Denver-based US Court of Appeals for the 10th Circuit that rejected a constitutional challenge to Colorado’s law providing that it is “unprofessional conduct” for a counselor to engage in conversion therapy with a patient under 18 years of age. The statute prohibits conversion therapy to attempt to change an individual’s sexual orientation or gender identity. The 10th Circuit panel split 2-1 in affirming District Judge Charlotte Sweeney’s denial of a preliminary injunction.
Alliance Defending Freedom (ADF), a conservative religious litigation group, filed a federal lawsuit against Patty Salazar, executive director of the Colorado Department of Regulatory Agencies, and other Colorado officials responsible for enforcement of healthcare regulations, seeking an injunction against enforcement of the statute. Sixteen amicus briefs were filed by individuals or groups (mainly religious or socially conservative organizations) urging the Supreme Court to take the case.
Surprisingly, ADF’s lawsuit, filed on behalf of a self-described “Christian counselor” named Kaley Chiles, does not raise a religious freedom argument, even though its petition to the court makes clear that Chiles claims that her religious beliefs are the foundation of her counseling practice. Instead, the complaint focuses on freedom of speech, asserting that Chiles’ counseling is conducted entirely through talking, and thus the law is a content-based abridgement of her First Amendment free speech rights. As such, ADF contends, it should be subjected to “strict scrutiny” and presumed to be unconstitutional and likely to be stricken.
The denial of a preliminary injunction was upheld in a 2-1 vote by a 10th Circuit panel. The two judges in the majority, Veronica Rossman (who authored the opinion) and Nancy Moritz, were appointed by Presidents Biden and Obama, respectively. Dissenting Judge Harris Hartz was appointed by President George W. Bush.
The petition does not claim that Chiles has ever been charged with unprofessional conduct under the statute, although she admits to having engaged in this kind of therapy with minors, but it asserts that the statute has caused her to curtail her practice, thus unconstitutionally “chilling” her freedom of speech. The state’s response in its Brief in Opposition is to question Chiles’ standing to challenge the statute in federal court, urging the court to refrain from deciding an important question in a hypothetical case without a developed factual record.
Twenty-seven states, the District of Columbia, Puerto Rico, and more than 100 municipal or county governments have adopted laws similar to the Colorado statute. Although they differ in terms of method of enforcement, some do not address gender identity, and the consequences for violations vary, these laws all consider it unprofessional conduct for a licensed counselor to engage in conversion therapy, sometimes labeled as “Sexual Orientation Change Efforts,” based on legislative findings that minors subjected to this practice may suffer significant adverse effects, and that talk therapy does not change a person’s underlying sexual orientation, contrary to anecdotal claims by some practitioners.
Challengers to the constitutionality of these laws have contested the legislative findings, arguing that sexual orientation is mutable, especially for minors. When challenging laws like Colorado’s, which also address gender identity, they repeat many of the arguments made by proponents of laws banning gender-affirming care for minors, claiming that many young children will “grow out” of an identification with the “opposite sex” and that those who receive gender-affirming care may regret having transitioned. In his executive order threatening to suspend federal money for health care providers who engage in gender-affirming care for gender transition with those under age 19, President Trump describes the treatment as “mutilation,” eliding the fact that surgical procedures in support of transition are generally not made available to minors.
ADF’s petition follows its standard practice of proposing a “question presented” to the court stated at a high level of generality seeking to position the case as an easy and straightforward application of free speech principles: “Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.” The 10th Circuit majority rejected ADF’s assertion that this is about “censoring conversations” between therapists and their patients, but rather about regulating a practice that has been found to be unsafe and ineffective, exercising the state’s function of protecting minors against harm.
ADF’s challenge is grounded in its claim that the Supreme Court has already decided this issue against the state in National Institute of Family & Life Advocates (NIFLA) v. Becerra, a 2018 case in which the court invalidated on free speech grounds a California law that required clinics providing prenatal services to advise patients about the availability of abortion services. That was a compelled speech case, not an attempt to regulate the substance of medical practice, but the court’s opinion, by Justice Clarence Thomas, included comments casting doubt on some court of appeals rulings rejecting free speech challenges to state bans on conversion therapy. ADF claims that the 10th Circuit misconstrued the NIFLA case by characterizing the Colorado law as a regulation of conduct rather than of speech. But the 10th Circuit pointed out, as has the San Francisco-based Ninth Circuit in a recent decision involving the state of Washington, that the NIFLA case was distinguishable, as a compelled speech case which did not regulate health care practice as such.
Colorado’s Brief in Opposition noted that all courts confronted with this issue since the NIFLA ruling have construed that precedent the way the 10th Circuit did in this case. The brief also shot holes in the substance of the ADF Petition’s description of the evidence before the district court, pointing out that this case was presented to the Supreme Court based entirely on the factual allegations of ADF, most of which are heavily contested, rather than on a decision on the merits after discovery and trial in which the district court can reach conclusions based on a well-developed factual record including qualified expert testimony.
Because the Supreme Court stops hearing arguments for the term by the end of April, and the briefing schedule after cases are granted review extends beyond that point, this case will not be argued until the court’s October 2025 Term. The court’s decision to grant review is not a ruling on the merits, but it does signal that at least four members of the court were persuaded that disagreement between the courts of appeals about how to deal with this issue requires a definitive response from the court.
