Justice for children in Colorado?

In just the third case of its new term, the Supreme Court analyzed a sweeping Colorado law that prohibits counselors from helping children realign their identity with their God-given sex. In Chiles v. Salazar, a majority of the Court seemed deeply skeptical of Colorado’s law, which banned certain conversations based on their viewpoint, thus pushing many children suffering from gender dysphoria down a one-way path towards dangerous and life-altering drugs, hormones, and surgeries. 

The petitioner in the case, Kaley Chiles, is a licensed counselor in Colorado. She views her counseling as an outworking of her Christian faith. Many clients choose Kaley precisely because they share her religious beliefs.

In 2019, Colorado passed a law that bans counselors from engaging in voluntary conversations with minors if those conversations have the goal of realigning the minor’s identity with biological sex. And anyone who speaks the state’s disfavored message faces steep financial penalties and even the revocation of their counseling license. In stark contrast, Colorado allows counselors to encourage struggling kids to reject their biological sex. Licensed counselors, in other words, may only affirm the child’s self-proclaimed gender.

At oral argument, the Supreme Court expressed serious concerns with Colorado’s viewpoint-based restriction on speech. Justice after justice pointed out that Colorado punishes counselors when they only speak words. In fact, because Kaley is a counselor, rather than a psychiatrist, she cannot prescribe drugs but only engages in voluntary conversations. Colorado told the Supreme Court that it needed to be able to punish Kaley even though she only used words. The state even argued that there was no difference between speech and conduct when a professional was involved. Chief Justice Roberts pushed back, explaining that the whole point of the First Amendment was to protect speech. 

Indeed, just a few years ago, the Supreme Court held that just because speech was uttered by a professional did not mean it was unprotected by the First Amendment. Colorado’s contrary viewpoint would lead to an Orwellian world. No viewpoint would be safe. Pro-marriage states could forbid counselors from talking about divorce. And pro-abortion states could prohibit counselors from talking about marriage or adoption. 

Justice Alito was more direct: He referred to Colorado’s law as “blatant viewpoint discrimination.” Where, as with Colorado’s law, the state punishes speech based on its viewpoint, it must satisfy strict scrutiny. This means it must show both a compelling reason for its law and that the state has no other way to accomplish that compelling interest. Colorado cannot meet that standard. It has no studies showing that the kind of voluntary counseling that Kaley wants to engage in causes harm.

In fact, it is Colorado’s law that causes harm. It forbids counseling to realign a minor’s identity with her sex and thus pushes kids struggling with gender identity who choose counseling in the direction of transition. Kaley’s attorney, my colleague Jim Campbell, cited statistics indicating that 90 percent of young people who are struggling with gender dysphoria before puberty work their way through it and realign their identity with their sex. On the other hand, 90 percent of kids who are socially transitioned, by for example, using the wrong pronouns or dressing like the opposite sex, move on to the drugs and surgeries of medicalized transition. 

Oral argument initially focused on Colorado’s assertion (made in a footnote in its brief) that Kaley doesn’t have standing. Justice Sotomayor hinted that standing might not exist if Colorado were to disavow enforcing the law against Kaley. Yet, when it was Colorado’s turn at the lectern, the state doubled down. It insisted that Kaley would violate its law if she helped a minor with her goal of aligning identity with sex. This led Justice Sotomayor to comment, “that settles the standing question.” 

Chiles v. Salazar highlights that when states engage in viewpoint discrimination, kids can be the victims. Clients and counselors should set the treatment goals, not the government. Colorado’s overreach expressly singles out one viewpoint—something that seemed to deeply trouble many of the justices. As Justice Barrett explained, states may not pick winners and losers among viewpoints. Because that is precisely what Colorado’s law does, it seems likely that a lopsided majority of the Supreme Court will side with Kaley and conclude that her speech is subject to the highest First Amendment protection.

Editor’s note: The author is one of Kaley Chiles’s counsel.