Colorado's Conversion Therapy Ban Comes to SCOTUS Tomorrow: Are There Implications for Gender-Affirming Talk Therapy?
The Supreme Court officially begins its new Term today with two relatively small-ball cases. The real action begins tomorrow, when the Court will hear argument in Chiles v. Salazar, which presents the question whether Colorado's law forbidding licensed counselors from performing conversion therapy on minors violates the First Amendment. The culture-war dimensions of the case are made most apparent by contrasting how the petitioner and the respondents phrase the question presented.
Here's the petitioner's version of the question (which, strictly speaking, is the question on which the Court granted certiorari): "Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause." And here's the respondents' version: "Whether the First Amendment allows states to regulate professional healthcare treatments—including treatments that use words—to protect patients from substandard care." The disconnect between those two characterizations exemplifies how the polarization of American culture has spread to constitutional law.
To be sure, there was never a time when politics and ideology were distinct from American law. Anyone even slightly familiar with the political backdrop to Marbury v. Madison understands that since the Supreme Court began deciding constitutional questions, it has done so under the influence of politics, including partisan politics. What makes Supreme Court politics these days so high-stakes is not the fact that the Court's business is political but that our ordinary politics are so divisive and high stakes.
The immediate ideological stakes in Chiles obscure the fact that the underlying legal issue has potentially ideologically mixed implications. In its brief on the merits (linked above), Colorado argues that states may forbid discredited medical practices that violate the standard of care without implicating the First Amendment, even if the particular medical practice happens to be accomplished through words (i.e., talk therapy) rather than the administration of a drug or physical procedure such as surgery. Casual readers might wonder why the brief repeatedly includes qualifiers like "discredited" and limits its proposed rule to treatments that violate the standard of care. The reason, I strongly suspect, is that Colorado's lawyers understand that a victory on too broad a ground would mean that while Colorado can ban talk therapy aimed at converting gay, lesbian, and trans youth into straight cisgender youth, it could also mean that red states could ban gender-affirming talk therapy for trans youth.
To be clear, that would not be a necessary implication of a ruling upholding Colorado's ban. It would be possible for the Court to hold--as Colorado urges it to hold--that state regulations of medical practices don't violate the First Amendment even when applied to medical practices accomplished verbally, but only so long as the banned medical practices are discredited and/or outside the standard of care. However, there are two reasons to doubt that such a qualification would effectively distinguish a state ban on gender-affirming talk therapy.
First, the qualification is something of a non sequitur. The core of Colorado's argument can be explained by an analogy. Suppose a gang leader instructs one of his henchmen to murder a rival, and the henchman carries out the instructions. The gang leader can be charged with murder. Notwithstanding the fact that the gang leader accomplished his deed with words, the First Amendment simply isn't implicated. In doctrinal terms, "speech or writing used as an integral part of conduct in violation of a valid criminal statute" is unprotected. Colorado is arguing in a similar vein that, just as it doesn't matter whether murder is committed directly with a gun or indirectly with a verbal order, so it doesn't matter whether quackery is accomplished via the provision of snake oil or via talk therapy.
It's not entirely clear that this argument works on its own terms. In my view, it ought to work. For example, I think that workplace sex discrimination accomplished via words--i.e., via hostile-environment sexual harassment--doesn't have any special First Amendment protection. It should be treated simply as a species of sex discrimination that happens to be accomplished via words. However, as I've noted in prior essays on this blog (e.g., here, here, and here), the Supreme Court in recent years has taken a different view--often treating the application of broad anti-discrimination laws as implicating speech when they are applied in particular cases to discrimination accomplished via speech.
However, let's suppose that Colorado succeeds in persuading the Court that a ban on conversion therapy should be understood in the way that I would prefer--as an application of the state's broader policy of regulating the practice of medicine in a way that just happens to implicate speech in the particular case. Even so, if it does, that would not be because the particular medical practice (here conversion therapy) is discredited or because it falls outside the standard of care. It would be because conversion therapy is a medical treatment that just happens to involve words. Put differently, the analytic basis for saying that the Colorado law is not a content-based regulation of speech that triggers strict scrutiny is the fact that it's a regulation of medical practice, not the fact that the particular medical practice is discredited and outside the standard of care. That's why I described the argument as something of a non sequitur.
Second, even if Colorado's argument can be logically limited to discredited practices that are outside the standard of care, there is very good reason to worry that this Supreme Court would find that a ban on gender-affirming talk therapy is, for constitutional purposes, indistinguishable from a ban on conversion therapy. Consider that in United States v. Skrmetti, SCOTUS upheld Tennessee's ban on gender-affirming care for minors even though the banned treatments--puberty blockers and hormone therapy--are the standard of care in the United States. Nonetheless, the Court cited varying policies in other countries and "ongoing debate among medical experts" as reasons for rejecting the equal protection challenge.
Lest I be misunderstood, I am not saying that Skrmetti logically entails that a decision upholding Colorado's ban on conversion therapy would imply the constitutionality of a hypothetical red-state ban on gender-affirming talk therapy. There are important potential distinctions. One such distinction is that the Court's reference to ongoing debate occurred in the portion of the opinion that applied rational basis scrutiny. Such ongoing debate might be less relevant to the threshold determination of whether a ban implicates free speech. Another distinction is that the foreign government policies and the ongoing debate concern puberty blockers and hormone therapy. The Skrmetti Court did not have occasion to discuss gender-affirming talk therapy.
But speaking now in a predictive rather than strictly analytical mode, those distinctions might well prove unimportant to the Court. A May 1, 2025 Report issued by the Trump/RFK Jr. Department of Health & Human Services (HHS) mostly aims to discredit puberty blockers and hormone therapy, but it also casts doubt on the efficacy of gender-affirming talk therapy. I worry that if SCOTUS were to uphold Colorado's ban on conversion therapy, it would, in a subsequent case, point to the HHS report and other sources to claim that whatever red state were to ban gender-affirming talk therapy had a sound basis for doing so because such therapy is unproven and subject to debate.
* * *
Consider the two-by-two matrix of possible outcomes in Chiles and the hypothetical case of a free speech challenge to a hypothetical law banning gender-affirming talk therapy:
| Gender-Affirming Ban Valid | Gender-Affirming Ban Invalid |
Conversion Ban Valid | (Valid, Valid) | (Valid, Invalid) |
Conversion Ban Invalid | (Invalid, Valid) | (Invalid, Invalid) |
I assume that, as a policy matter, most people who support Colorado's conversion therapy ban would also oppose the hypothetical red-state ban on gender-affirming talk therapy. (That's true of me, for example.) To the extent that most of them would not draw a sharp distinction between their policy views and their constitutional views, their ideal outcome would be the second quadrant, in which the Court upholds the conversion therapy ban and strikes down the gender-affirming talk therapy ban. But my analysis above suggests that might not be a realistic outcome to expect from the Roberts Court.
The worst-case scenario for those of us with the policy preferences I've just described would be the third quadrant--in which Colorado loses but in a later case a majority of the Court upholds a state law ban on gender-affirming talk therapy. I don't see a coherent doctrinal path towards that result, but I would not rule it out and would actually predict that pattern of votes for at least two Justices.
To my mind, then, the most likely outcomes are in the first and fourth quadrants. If those really are the choices, it's not clear to me what to prefer. It depends on whether one thinks that the harm done from conversion therapy is worse than the harm done from forgoing gender-affirming talk therapy. But that's not all the calculation depends on. It also depends on how likely one thinks it is that states will ban gender-affirming talk therapy for minors, and how large the populations of the states in which those bans occur are.
One's preference between quadrants one and four might also depend on how effective one thinks that a conversion therapy ban is. In Colorado, as in other states that ban conversion therapy, the ban applies to licensed mental health professionals but not to people who are non-licensed. One cannot hold oneself out as a licensed therapist without a license, but in Colorado and other states, clergy and other religious counselors can provide religious counseling that is tantamount to conversion therapy.
I haven't dug deeply into data on the extent to which the religious counseling loophole undermines the efficacy of conversion therapy bans in Colorado or elsewhere, but if the loophole does substantially weaken such bans, then that could count as a reason to favor quadrant 4 over quadrant 1. In other words, if the price of preserving a relatively-easy-to-evade ban on conversion therapy is the potential elimination of gender-affirming talk therapy in populous red states, that might not be a cost worth bearing.
Seen in that light, the ideological stakes of tomorrow's argument are mixed. We will find out soon enough whether any Justices in fact see the case in that light.
Postscript: Or maybe not. As Professor Segall will argue here on the blog tomorrow, the plaintiff's case should be dismissed for lack of standing--because she does not practice conversion therapy as defined by the Colorado law and hasn't been charged with violating it. However, given the recent trend whereby SCOTUS manipulates jurisdiction to hear religion/culture-war cases it wants to hear, there remains a good chance that the Court will in fact reach the merits. (Note: the link to Prof Segall's post will work starting tomorrow at 7 a.m. If you click on it before then, you will get an error message.)
-- Michael C. Dorf