Supreme Court hears if faith-based counseling on gender identity is protected speech

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The Supreme Court heard arguments Tuesday in a closely watched case about whether counseling services for minors facing gender identity and sexual orientation questions are protected by the First Amendment.

Kaley Chiles, a licensed Christian therapist, argues her conversations with youth clients are a form of protected speech. The Colorado government, however, sees them as professional conduct that falls under its authority to regulate. 

The case centers on a law passed by Colorado in 2019 that bans what the state government describes as "conversion therapy." About two dozen states have similar measures in place, and the outcome of this case could affect those.

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During oral arguments, Jim Campbell, chief legal counsel for Alliance Defending Freedom, a conservative advocacy group representing Chiles, told the justices that Chiles is being unconstitutionally silenced and that minors who want her help are unable to access it due to the law.

"One of the things that's so problematic about Colorado's law is that it undermines the wellbeing of kids that are struggling with gender dysphoria," Campbell told the justices.

Meanwhile, Colorado Solicitor General Shannon Stevenson told the Supreme Court that no court has ever held that a law like Colorado's implicates the First Amendment because it applies only to treatments, and does not bar a professional from voicing any viewpoint about that treatment to the patient. 

"A state cannot lose its power to regulate the very professionals that it licenses just because they are using words," Stevenson said. "A health care provider cannot be free to violate the standard of care just because they are using words. And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words." 

In court papers, Chiles' lawyers describe her as a person who "believes that people flourish when they live consistently with God's design, including their biological sex."

Chiles, whose practice is based in Colorado Springs, uses "faith-informed" counseling to engage in talk therapy with young people who are "seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one's physical body," according to her attorneys. 

Her lawyers have said the state law amounts to "viewpoint censorship."

They have argued conversion therapy is an overly broad term and that the law puts therapists like Chiles at risk of thousands of dollars in fines and revocation of their licenses if they violate it.

Colorado Attorney General Phil Weiser has previously defended the law, which the state claims only bans therapists from performing treatments that have the predetermined outcome of converting a minor's sexual orientation or gender identity.

"So-called conversion therapy is an inhumane and abusive practice overwhelmingly shown to harm young people," Weiser said in a statement over the summer. "We have a compelling interest in protecting children from this dangerous pseudoscience."

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The case is not the first to come out of Colorado in recent years that looks at how the First Amendment intersects with identity and sexual orientation. The Supreme Court found 6-3 in June 2023 that Colorado could not force web designer Lorie Smith to create designs that conflicted with her faith, namely wedding website designs for gay couples.

Chiles v. Salazar, which the high court is expected to decide on by next summer, has now become the next cultural touchpoint in the state. The Trump Department of Justice is backing Chiles in the lawsuit, as is the Association of Biblical Counselors and the Family Research Counsel.

Meanwhile, nearly 200 congressional Democrats and major medical and mental health institutions support the Colorado law.

Attorney Kate Anderson of Alliance Defending Freedom told reporters ahead of oral arguments that the Colorado web designer's case gave her optimism.

The conversion therapy law is "another example of Colorado trying to censor speech in a slightly different context, but very much related," Anderson said. "And we're hopeful that the Supreme Court will again give a bold vindication of free speech for everyone."