Supreme Court scrutinizes one-way LGBTQ counseling ban

Fresh off its summer recess, the U.S. Supreme Court took up a smoldering controversy Tuesday over so-called gender-affirming care—this time in the context of counseling. During oral arguments, a majority of the court seemed to question Colorado’s position that a licensed counselor’s talk therapy is not constitutionally protected speech but conduct that the state can regulate.

Kaley Chiles is a state-licensed counselor. She’s also a Christian who wants to be able to talk with children under age 18 who seek help for unwanted same-sex attraction or gender confusion. Her goal is to help them align their feelings with a Biblical understanding of sex, but under Colorado law, she can’t do that. The law would, however, allow her to encourage their same-sex attraction or identification with a gender not matching their sex.

The 10th U.S. Circuit Court of Appeals last year ruled the ban didn’t affect protected free speech because it regulated professional conduct, not speech. While the 9th Circuit agreed with the 10th Circuit, the 3rd and 11th Circuits reached the opposite conclusion.

Chiles v. Salazar offers the Supreme Court an opportunity to resolve the issue. If it strikes down the Colorado law, similar speech bans by states and local governments around the country may also fall.

In opening remarks Tuesday morning, Chiles’ attorney, James A. Campbell, told the justices that Colorado is censoring his client because the state disfavors her viewpoint. “This law … bans voluntary conversations, censoring widely held views on debated moral, religious, and scientific questions,” Campbell said. He called the law—and others like it—“historic outliers” given the lack of any similar viewpoint-based bans on counseling. “If heightened scrutiny doesn’t apply [to the law], states can transform counselors into mouthpieces for the government,” he added.

Justices Sonia Sotomayor and Ketanji Brown Jackson dominated the questioning of Campbell in the approximately 90-minute court session. Jackson echoed the state’s position that the talk therapy Chiles engaged in was medical treatment that could be regulated, even if it did involve speech, while Sotomayor explored a way out of deciding the case, asking Campbell about the state’s 11th-hour standing argument.

“This is an unusual case because we have basically six years of no enforcement of this law, three before this lawsuit, three since, and we have the entity charged with administering the law saying, ‘We’re not going to apply it to your kind of therapy,’” said Sotomayor. “So how does that fit into being an imminent threat of prosecution?”

Campbell pointed to the state’s refusal to disavow enforcement of the law for precisely the kind of talk therapy that Chiles sought to offer. “Over the last few weeks, there have been anonymous complaints filed against my client, and those complaints are now being investigated by the state of Colorado for allegations that she’s violating the very law that we’re challenging,” he said.

In its brief, the state pointed to studies in the record that it argued showed that conversion therapy would lead to teen suicides. But Campbell zeroed in on the studies’ shortcomings.

“Colorado certainly cites studies, but those studies suffer from significant flaws,” he said. “The main flaw in all of them is that they lump together dissimilar approaches. They treat voluntary conversations the same as shock therapy.”

Principal Deputy Solicitor General Hashim M. Mooppan, who filed a friend-of-the-court brief for the federal government, backed Chiles. “There is no longstanding tradition of states imposing this type of categorical prior restraint on the speech of therapists,” Mooppan said.

Largely silent as Campbell presented Chiles’ argument, Justice Samuel Alito told Colorado’s solicitor general, Shannon Stevenson, that the state law “looks like blatant viewpoint discrimination.”

Justice Elena Kagan admitted she had the same concern. “Just assume that we’re in normal free speech land rather than in this kind of doctor land,” said Kagan. “And if a doctor says, ‘I know you identify as gay, and I’m going to help you accept that,’ and another doctor says, ‘I know you identify as gay, and I’m going to help you to change that,’ and one of those is permissible and the other is not, that seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination.”

Stevenson dug in on the state’s central argument—that talk therapy was medical treatment and, like all treatments, subject to regulation by the licensing authorities. There were no First Amendment concerns, she asserted.

But Justice Neil Gorsuch challenged that argument, asking, “Can the state prohibit speech even in situations of medical uncertainty?”

“Can a state pick a side?” Justice Amy Coney Barrett added.

Both justices struggled to get a straight answer to those questions from Stevenson.

“The reason why … history is important and the reason why the standard of care is important is because it’s a confirmation that the state is not actually trying to shut down viewpoints,” Stevenson said. But, as Barrett noted, many states had come to a different conclusion as to what the evidence indicated.

Campbell had the last word. “This law harms gender dysphoric kids because the statistics that we’ve cited … indicate that 90% of young people who are struggling with gender dysphoria before puberty work their way through it and realign their identity with their sex,” he said. “But if one of those children goes to a counselor and they specifically say, ‘That is the help I want, realigning my identity’ with their sex, they cannot receive that help from someone like my client.”

A ruling from the court is expected by June.