Photo by Joshua Woods on UnsplashThe Supreme Court term has just begun — but with a bang in the form of arguments on whether state-level bans on conversion therapy are constitutional. Because somehow, in 2025, this is still a question.
This case takes us to Colorado, and into the office of a licensed mental health counselor by the name of Kaley Chiles, who specializes in “trauma, personality disorders, eating disorders, addiction, gender dysphoria, and sexual attractions” … from an explicitly conservative Christian perspective. In 2019, the state of Colorado passed a ban on licensed medical professionals giving conversion therapy to minors, in line with the growing medical consensus that not only is this practice ineffective, but it is also dangerous to the health and safety of the youth subjected to it. Though Chiles’ complaint states that she did not work with clients to change their sexual orientation or gender, and that she would not do so in the future, she argues that Colorado’s ban on conversion therapy is an unconstitutional restriction on her practice. (You can read the Freedom From Religion Foundation’s amicus brief on the case here.)
Chiles sued the state to challenge the ban in 2022, claiming that it had interfered with her ability to provide “full counseling services in line with her and her clients’ religious convictions.” Interestingly, though, she and her lawyers from the Christian nationalist outfit Alliance Defending Freedom aren’t making a religious liberty argument here. Instead, they allege that the ban interferes with Chiles’ right to free speech, essentially saying that because she provides talk therapy, anything she says is speech and cannot be restricted by the government.
Unfortunately, this tactic isn’t as wild as it sounds, having been teed up by a 2018 Supreme Court decision that struck down California’s attempt at requiring “crisis pregnancy centers” to provide certain types of information at odds with their general mission of coercing women out of having abortions. In this case, the court held that requiring practitioners in these clinics to provide information about the availability of abortion services was a violation of their free speech rights, as abortion was a form of medical care these practices were dedicated to opposing. The new conversion therapy case falls easily within that logic, with Chiles’ attorneys pointing out that this is a similar government regulation on the speech of a medical practitioner, only in reverse — restricting speech instead of compelling it.
The First Amendment’s protections against government regulation of speech are historically strong. Free speech is one of the most essential building blocks of liberty, and the circumstances under which the government can restrict speech should be limited. But there are limits, and any number of licensed professionals have aspects of their speech restricted when speaking in their professional capacity. These are jobs where speech is the crux of the job, and the public relies on that speech for its benefit. Lawyers, teachers and health care providers, just to name a few, all have their speech regulated when they are actively engaged in their job, because it is necessary to protect public safety, health, to prevent fraud and to protect vulnerable populations, such as children. The impact of this speech has a far greater ripple effect on society than someone writing a blog or attending a protest, which gives the government a strong interest in regulating it.
The majority of justices last week did not seem convinced that this should apply to conversion therapy bans, however, and seemed poised to overturn “professional speech” as a lesser-protected form of speech altogether. Again, this is not surprising — in the 2018 case I referenced earlier, Justice Clarence Thomas wrote in the opinion that, although there are two examples of “professional speech” being regulated, this alone does not establish a historically recognized tradition that the court should consider. Instead, the tenor of the oral argument was one of “if you’re speaking, it’s speech, regardless of the context.”
The Alliance Defending Freedom relied heavily on the argument that if medical treatment only takes the form of talking, then it is not speech that is incidental to conduct (which could be regulated), but purely speech. During oral arguments, the organization made clear it believes that if a medical professional does not treat a condition using medications or surgical procedures, it is unconstitutional for the government to engage in regulation, regardless of what the outcome of said speech is. Trying to tease out this distinction, Justice Ketanji Brown Jackson offered a hypothetical in which a patient approaches two licensed medical professionals, stating that they are seeking treatment to live consistently with their biological sex, and one professional offers medication, while the other offers talk therapy. While these both would have the outcome that the state of Colorado was trying to prevent (the clearly documented harms caused by conversion therapy), the ADF claimed that only the talk therapist should be exempt from regulation, because only talk was used in the course of treatment.
Perhaps more disappointing in the oral argument, though, was that it was not only the court’s conservative wing that bought into this train of thought. Though Justice Sonia Sotomayor at times tried to poke through the holes of this argument, bringing in hypotheticals about anorexia, she ultimately ended up questioning whether or not this case was actually moot — rather than pushing back against the argument itself. Justice Elena Kagan likewise offered indications in her questioning that she views this form of therapy as completely different from other forms of medical care, stating that her hypothetical of a doctor verbally advising a patient treat high cholesterol by eating dessert every day without ever providing an exam would be a “different kind of case.” By the end of the argument, it became clear that Jackson alone was able to see the forest through the trees. She noted: “It’s just a little puzzling to me that [Chiles] 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.” There is a strong potential that Jackson may end up being a lone island of dissent, contrasting with her liberal colleagues’ concurrences.
Because the harms of conversion therapy — even when it is only talk therapy without other common physical elements, such as aversion therapy through electroshock and other forms of biofeedback — are primarily psychological, rather than physical, the court seems primed to view them as something that minors do not need protection from.
I want to be very clear here that we are talking about children being subjected to a form of “care” that has been consistently debunked as pseudoscience, and is most frequently religious preaching that can be billed to insurance companies. The Alliance Defending Freedom made great hay out of the fact that counseling is an evidence-based practice, which it is, without mentioning the inconvenient fact that the specific type of counseling Chiles seeks to provide is not evidence-based. There is no reputable study, no mainstream medical organization, that endorses conversion therapy. In fact, the general medical consensus on the topic is that it is deeply harmful to those who fall victim to it, which is why more than 20 states have banned its use for minors. Practitioners of conversion therapy on adults still have the ability to pursue their goals. While I think such behavior is deeply unethical and indicative of a still deeply homophobic and transphobic society, they have not been restricted in the same way because, generally speaking, adults have the capacity to consent to being treated with pseudoscience.
Children, on the other hand, do not. Chiles alleges that she only addresses the goals that her patients state they have, such as to eliminate unwanted same-sex attraction or to live consistently with their sex assigned at birth. But she ignores whether these children genuinely want those outcomes. Parents control medical decisions for their children, and, typically, minors placed into conversion therapy programs do not seek it out on their own. Instead, they are coerced and guilted into it by parents, teachers and pastors who view what is considered by the medical mainstream to be a natural variance in the human experience as a sin in need of repentance and correction.
Conversion therapy is fundamentally different from other forms of youth-focused psychology and psychiatry. Pediatric psychiatry can be life-saving, evidence-based, scientifically sound medical care. Conversion therapy is not that. It is also fundamentally different from its mainstream converse, gender-affirming care, because gender-affirming care is evidence-based and backed by reputable medical organizations, despite the concerted misinformation campaign to the contrary. And even prior to its rise in the culture wars, gender-affirming care has always been held to a much higher standard of consent than other areas of pediatric psychiatry, and certainly more so than conversion therapy.
Beyond conversion therapy, though, the decision the court seems poised to make will have disastrous consequences across a wide variety of professions. It seems unclear if the court rules in favor of Chiles, whether any professional speech can be constitutionally regulated. This means a pediatrician could advise patients to forgo all vaccines because they are sinful, with no potential consequences. A biology teacher could preach a sermon on creationism in a public school, and it would be considered protected speech. Protections against false advertising and fraud could also be thrown out the window.
This is a larger pattern, primarily pushed by the religious right, to ensure that misinformation, pseudoscience and fearmongering rule the day. Truth is one of our greatest defenses against fascism, something that the Christian nationalist movement knows it cannot withstand. LGBTQIA+ rights have provided it with a convenient foothold to test the limits and boundaries, and to drop stones in the constitutional pond that will ripple out to everyone, regardless of their gender identity or sexual orientation.
It will take significant effort at all levels to roll back the disastrous potential consequences of this decision. On a governmental level, there are some tactics Congress might hypothetically be able to limit the effects of a ruling in favor of Chiles, though it would be difficult, and with the current state of our legislative body, unlikely. Instead, I think our best bet is to actively engage with our communities, to share information about evidence-based medical practices and other potentially harmful practices with our friends and neighbors. It will be on us as communities and individuals to hold professionals who engage in dishonest, fraudulent and harmful speech accountable. And while I recognize that this is much harder than calling your elected representatives, it is going to be necessary to prevent dangerous conditions from arising while we do the other necessary work of governmental reform on all levels. We must find new approaches when the institutional methods of ensuring safety and liberty are rapidly being closed off to the everyday American.
Disclaimer: The views in this column are of the author and do not necessarily reflect those of the Freedom From Religion Foundation.
