Speech or conduct?

Licensed professional counselor Kaley Chiles wants to help young people who struggle with unwanted sexual feelings and seek out her help. But while a Colorado state law allows her to support kids’ same-sex attraction or gender transition, it bans counseling that supports a Biblical understanding of sex. Penalties for breaking the law are severe—a $5,000 fine for each violation, and even loss of her license.

On Oct. 7, the U.S. Supreme Court will hear Chiles’ lawsuit challenging the law. At issue in the closely watched case is a deceptively simple question—is counseling “speech” or “conduct”? Thus far, a federal district court and the 10th U.S. Circuit Court of Appeals have sided with Colorado, which calls talk therapy “conduct” subject to state regulation.

Chiles, who works in Colorado Springs, only talks with her clients. She does not engage in discredited practices like aversion therapy or shock therapy that once defined “conversion therapy.”

Chiles ultimately just wants to help kids who voluntarily seek help and don’t want to be pushed to accept their same-sex attraction or discomfort with their bodies. “I know what it costs them to be so vulnerable,” she wrote in a December 2024 Colorado Springs Gazette editorial. “And I know what it means to them to have someone with whom they can truly dialogue to explore the full spectrum of their thoughts, feelings, beliefs and actions.”

Jonathan Scruggs, an Alliance Defending Freedom attorney representing Chiles, compares her case to NAACP v. Button, a 1963 U.S. Supreme Court ruling that struck down a Virginia law limiting the solicitation of legal services. Virginia had used the law to block the NAACP from providing legal assistance to African Americans who faced racial discrimination, claiming the state was regulating conduct. But the Supreme Court ruled that the NAACP’s legal activities were “modes of expression and association protected by the First and Fourteenth Amendments.”

Circuit courts are divided on the speech versus conduct issue. The 3rd and 11th Circuits have both struck down counseling bans as unconstitutional infringements on free speech. But the 9th Circuit in 2022 upheld a Washington law similar to Colorado’s. While the Supreme Court did not review that ruling, Justice Clarence Thomas wrote at the time that Washington’s law “strikes at the heart of the First Amendment.”

In Chiles’ case, 10th Circuit Judge Harris Hartz wrote a dissent criticizing fellow judges for playing a “labeling game” rather than looking at what the regulation took aim at—“the expressive content of what is said.”

A ruling in Chiles’ case will reach professions beyond counseling. A friend-of-the-court brief filed by the Christian Legal Society addresses the spillover effect on bar rules in some states that attempt to discipline attorneys not only for conduct but also for speech that the licensing entities believe is harassing or discriminatory. That could include a view that same-sex marriage is immoral.

Scruggs rejected Colorado’s claims that merely talking to kids about their feelings regarding their biological sex is harmful. “They’re not really looking at diving deep into the science, and they’re over their skis on what the science says,” he said. “If you dig deep, they admit that there’s no proof of actual harm here.”

In the end, Scruggs says government officials shouldn’t be cutting off open dialogue with kids. “The government’s … saying that we know better than counselors and kids about what views they should adopt and what ideas they should hear,” he said. “And that’s really a global threat to the First Amendment right.”