Silenced no more

The Supreme Court handed down a landmark ruling yesterday. In Chiles v. Salazar, a nearly unanimous Supreme Court told Colorado—and any progressive legislature itching to police private counseling rooms—that the First Amendment does not go on hiatus simply because a professional hangs a license on the wall. It was a good day for the First Amendment. As the Supreme Court put it, in America, “no official—high or petty—may command our tongues or silence our voices.”

Here is what happened. Kaley Chiles is a licensed professional counselor in Colorado. She is a practicing Christian who believes her clients flourish when they pursue their own goals—including, for some, reducing unwanted same-sex attraction or making peace with their biological sex.

But in Colorado some client goals are forbidden. Under a 2019 law, counselors like Kaley are forbidden from engaging in counseling that might help a client align her gender identity with her sex—regardless of what the client wants. Therapists who affirm permanent and life-altering gender transitions including drugs and procedures? Encouraged. Therapists who help a client pursue the opposite goal? Illegal.

In justifying its ban on certain counseling conversations, Colorado labeled counseling “professional conduct.” The Supreme Court was having none of it. It explained that all Ms. Chiles does is speak. Her speech does not become conduct merely because the government labels it such. Rather, as the Supreme Court held, “the First Amendment is no word game.”

Worse, Colorado sought to regulate Kaley’s speech based on its viewpoint. It permits one set of counseling conversations—those encouraging a gender transition—and forbids those who would help align a minor’s perceived gender identity with her sex. As the Supreme Court explained, when the government makes distinctions based on the viewpoint of the speech, it triggers the most demanding First Amendment scrutiny and is almost always unconstitutional.

The breadth of the Chiles coalition is remarkable. Eight justices—appointed by both Democrat and Republican presidents—agreed that Colorado’s viewpoint-based approach was constitutionally indefensible. In her solo dissent, Justice Jackson argued that governments have broad power to police professional speech. But as the Supreme Court explained, such a rule would give governments the whip hand—allowing them to censor and suppress disfavored speech.

Going forward, the Chiles opinion puts the 20 or so states with similar laws on notice. State laws that allow counselors to affirm one conclusion while prohibiting them from even entertaining another are presumptively unconstitutional. Chiles thus reaffirmed that “the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.” As Justice Gorsuch wrote for the majority, “It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”

Kaley Chiles sat down with her clients, listened to their goals, and sought to help them. Colorado tried to silence her. Yesterday, a nearly unanimous Supreme Court took the state to task. In Colorado, parents seeking help for their children, and counselors willing to provide it, now have the right to have conversations regarding gender identity free from government interference.

That is a victory worth celebrating.

Editor’s note: Erin Hawley works for Alliance Defending Freedom and represented Kaley Chiles.