Colorado, California try to work around Chiles ruling

Two states are attempting to circumvent a recent Supreme Court victory for counselors’ free speech rights. But legal experts say that the legislation in Colorado and California goes against the high court’s March decision in Chiles v. Salazar, which cemented licensed counselors’ constitutional right to talk to minors who seek help in overcoming same-sex attraction or gender confusion.

Last week, Colorado Gov. Jared Polis signed into law a provision that allows patients to bring civil claims against licensed counselors they accuse of causing harm while addressing issues relating to gender and sexuality. Last Wednesday, California’s Senate amended a similar bill.

“This law was basically unconstitutional to start with,” said Daniel Schmid, associate vice president of legal affairs at Liberty Counsel. “The Supreme Court just said 8-1 … [that] you can’t do this.”

In Chiles v. Salazar, counselor Kaley Chiles brought a lawsuit against Colorado after its 2019 law blocked her from helping children align their feelings with a biblical understanding of sex. The justices ruled the law unconstitutional, with the 8-1 decision finding that counseling conversations are protected speech that the state can’t regulate.

But weeks before the high court announced its decision, Colorado’s legislature proposed the bill allowing clients to sue counselors. Polis signed it into law on the first day of Pride Month, contending that this so-called conversion therapy is “harmful, can traumatize kids, and is a scam to waste people’s hard-earned money.”

Colorado’s measure defines conversion therapy as any counseling practice that seeks to direct a patient toward a predetermined sexual orientation or gender identity, or eliminate attractions toward individuals of a particular sex or gender. It carves out provisions for counselors who provide “acceptance, support, and understanding” to patients exploring their sexual and gender identities.

Beginning July 1, the law will allow an individual who participated in conversion therapy to bring civil actions against licensed counselors when they claim the mental health professionals engaged in harmful professional conduct.

Colorado law previously required individuals to file these civil claims within two years. But the new law removes this time restriction and has no statute of limitations. The law states that legislators extended the time because there can be a “delayed recognition of psychological injury” from therapy focused on overcoming same-sex attraction or gender confusion.

The claims can extend even after death—the law allows a legal representative of the individual to bring action within five years of the individual’s death.

Colorado’s law presumes that these individuals were forced into counseling, said Schmid. But he argued that these are voluntary conversations where the patients set the counseling goals to alter their same-sex attractions or gender confusion. The Supreme Court’s Chiles ruling clearly protects these counseling practices, he added.

Schmid argues that the new law merely gives a different name to the unconstitutional punishment the state threatens against counselors who provide so-called “conversion therapy” to minors.

“Regardless of the nomenclature that you ascribe to the penalty, it’s still as unconstitutional as the first [law],” Schmid said. “And the Supreme Court’s recent Chiles case doesn’t tolerate that.”

Hal Frampton, an attorney with Alliance Defending Freedom, said Colorado’s “gambit” isn’t going to succeed or stand up in courts, as it is so similar to the 2019 law.

“This is the same law essentially dressed up in slightly different language, but [it is] the same basic law, same basic problems,” he said. “The idea there is to have a deterrent effect on counselors and make them too afraid to counsel people in accordance with biblical truth.”

Frampton said ADF plans to fight against the law within the Chiles case, which the organization represented. He was not aware of any lawsuits that have been filed under the new law.

Meanwhile, in California, a similar bill is making its way through the state legislature. Legislators first introduced the law in January and amended it in the Senate last week to add more “teeth” to it, said Christopher Rosik, a licensed clinical psychologist at Irvine Christian Counseling in Irvine, Calif.

California’s bill would lengthen the statute of limitations for patients who received therapy as minors to sue counselors. It allows them to sue up to 22 years after turning 18 and adding a five-year window after whatever point the individual determined the therapy caused them “psychological injury.”

The California Family Council said the bill makes it much easier to sue licensed mental health professionals. The bill is about “silencing certain viewpoints, punishing dissent, and denying Californians the right to pursue counseling aligned with their deeply held beliefs, values, and faith,” the council said in a news release.

Rosik noted that the bill would shift the burden onto the therapist to prove that he or she didn’t harm the patient. If the bill becomes a law, it could have a chilling effect on these professionals, he said.

“Those of us who have worked in this area … will have to live with the reality that, hey, somebody has changed their mind about their therapy 20 years ago and could file a lawsuit,” Rosik said. “California’s goal is to stomp out any kind of ability for an individual wishing to explore their potential for change in attractions or behaviors or gender feelings.”