Eight justices shut down Colorado's 'egregious' censorship of talk therapy in 'conversion' ban

Colorado was cruising for a judicial bruising when it struggled to defend its ban on so-called conversion therapy for minors at the Supreme Court last fall, with several justices skeptical of its last-ditch argument that plaintiff and licensed counselor Kaley Chiles didn't actually violate the law with her talk therapy for kids struggling with gender identity and sexual orientation.

That bruising came down Tuesday in the form of an 8-1 ruling against the law, with only Justice Ketanji Brown Jackson dissenting, in a worrying sign for similar bans in half the states but also for red states that might try to ban so-called gender affirming counseling.

The issuance of the majority opinion, a slim 23 pages without the summary, three months before the court typically issues its final decisions of the term, showed how closely aligned the six right-coded and two left-coded justices were on the core issues of the case.

The court reached the same tally at least twice in high-profile First Amendment cases in the past five years.

In 2021, over a lone dissent by Chief Justice John Roberts, SCOTUS authorized lawsuits against public officials such as university officials for censorship without measurable economic harm to the victims, in that case student evangelists.

Months later, with Justice Clarence Thomas in dissent, SCOTUS prohibited K-12 schools from regulating student speech in contexts that are not school-supervised, including social media outside of school hours, based on the speculative threat of disruption on campus.

'The First Amendment is no word game'

"Colorado’s law addressing conversion therapy does not just ban physical interventions," like the Tennessee ban on medicalized gender transitions for minors upheld by the high court last year, but "censors speech based on viewpoint," according to the majority opinion by Justice Neil Gorsuch, which overturned a ruling by the 10th U.S. Circuit Court of Appeals.

The Centennial State, like "censorious governments throughout history," believes its ban is "essential to public health and safety," wrote Gorsuch, who came to SCOTUS from the Denver-based appeals court.

"But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech," and any viewpoint-suppression law "represents an 'egregious' assault" on the "inalienable right to think and speak freely" and the "free marketplace of ideas," Gorsuch wrote, quoting a precedent against religious discrimination in university funding.

Chiles' speech "does not become conduct just because the State may call it that," he wrote. "Nor does her speech become conduct just because it can also be described as a 'treatment,' a 'therapeutic modality,' or anything else. The First Amendment is no word game."

Public interest law firms that focus on religious liberty praised the ruling for Chiles, a Christian, though neither the majority nor Jackson mentioned Chiles' faith.

"Kids deserve real help affirming that their bodies are not a mistake and that they are wonderfully made," Alliance Defending Freedom Chief Legal Counsel Jim Campbell, representing Chiles, said in a press release. "States cannot silence voluntary conversations that help young people seeking to grow comfortable with their bodies."

Becket, which told SCOTUS the law "disproportionately harms religious youth" who seek "scientifically backed talk therapy," credited its triumph over Michigan's similar ban last year at the 6th Circuit as paving the way for SCOTUS against Colorado's. 

"Colorado lets kids smoke medical marijuana and pays for mastectomies for teens who want them," Becket senior counsel Adèle Keim said. "Now kids in Colorado who just want to keep the bodies they have can finally get the help they need."

First Liberty Institute, which filed a friend-of-the-court brief on behalf of pro-life pregnancy centers that also face restrictions on professional speech, said SCOTUS "sent a clear message to state governments that the Constitution actually means what it says when it protects the free speech of its citizens." 

The firm won an even more impressive unanimous ruling last week on behalf of street evangelist Gabriel Olivier, with SCOTUS reinstating his lawsuit to prevent Brandon, Miss. from continuing to enforce a ban on demonstrations near a public amphitheater, under which he was convicted but did not appeal.

No need for 'a new rule exempting' professional speech

Mainstream media widely mischaracterized Chiles' therapy practices as compelling children to abandon their gender identity or sexual orientation, ignoring the lengthy court record.

The majority opinion makes clear Chiles is working at the direction of her clients, some of whom "are content with" their sexual orientation and gender identity and just want help with social and family problems, while others want to "reduce or eliminate unwanted" attractions or behaviors or become more comfortable in their sex.

The eight justices also questioned Colorado's description of its law as a simple ban on conversion therapy, which "may evoke physical techniques" such as electroshock therapy, when it explicitly prohibits one viewpoint while allowing the opposite viewpoint, to the extent that licensed counselors may facilitate minors' medicalized gender transitions.

In a lengthy footnote, the majority scolds Colorado for trying to moot the case once SCOTUS accepted it by "halfheartedly" arguing Chiles has no present "intention" to violate the law, which "would render much of the law’s language superfluous." The state has litigated in three courts in three years and "expressly declined to disavow enforcement" against her.

Gorsuch wrote that Colorado can't escape the SCOTUS 2018 precedent NIFLA affirming First Amendment protections for licensed professionals' speech, in the context of California pro-life pregnancy centers compelled by the state to advertise abortion.

While governments face lower judicial hurdles in requiring speakers to disclose "only factual, noncontroversial information" in commercial speech or "regulating conduct in ways that incidentally sweep in speech," neither category depends on a licensed professional speaking or warrants "a new rule exempting" professional speech from strict scrutiny, he wrote.

Justice Kagan says Jackson's dissent contradicts itself

The concurrence by Justice Elena Kagan, joined by Justice Sonia Sotomayor, emphasized the holding applied to hypothetical "mirror image" laws that would try to prevent counselors from affirming a child's identification as the opposite sex or sexual orientation.

"Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward," Kagan wrote, while distinguishing viewpoint-based from "content based but viewpoint neutral" bans that the court has upheld, such as a ban on trademarks that identify "a particular living individual without their written consent."

She took aim at Justice Jackson in a footnote, illustrating the reported tension between the two over Kagan's approach of persuading conservative colleagues to narrow their rulings versus Jackson's of appearing to preen for the public with inflammatory but alienating dissents.

Indeed, even the majority opinion limited itself to the law "as applied" to Chiles individually, rather than striking it down on its face, and remanding the case to lower courts to "apply sufficiently rigorous First Amendment scrutiny."

Jackson contradicted herself by minimizing "content-based but viewpoint-neutral laws regulating speech in doctors’ and counselors’ offices," then giving "quite a few examples" when listing laws "supposedly put at risk today," Kagan wrote in the footnote.

"Her view to the contrary rests on reimagining – and in that way collapsing – the well-settled distinction between viewpoint-based and other content-based speech restrictions," Kagan said, while emphasizing SCOTUS "need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression" since that's not at issue in Colorado.

Jackson's dissent, longer than the majority opinion and concurrence combined, argues speech and conduct are functionally the same when the subject is supposed conversion therapy for minors. Like the media, Jackson repeatedly implies Chiles' therapy is coercive.

"No one directly disputes that Colorado has the power to regulate the medical treatments that state-licensed professionals provide to patients" or that such regulation is constitutional, so "it cannot also be the case that Colorado’s decision to restrict a dangerous therapy modality that, incidentally, involves provider speech is presumptively unconstitutional," she wrote.

"Conversion-therapy efforts have historically included aversive therapeutic modalities" such as inducing nausea, and while nonaversive treatments are "currently the predominant form of conversion therapy," all try to get patients to "change" their identity, Jackson wrote using air quotes, again mischaracterizing what Chiles does.

"The scientific literature confirms what anecdotal experiences suggest: Conversion therapy has harmed patients, particularly minors," Jackson argued, citing accounts from former patients and reports by the Substance Abuse and Mental Health Services Administration and American Academy of Pediatrics.

Holding that states can't regulate talk therapy that harms minors "flouts centuries of state-standardized regulation of medical care and is, ultimately, nonsensical," she wrote. "The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel."