The Supreme Court handed a Colorado counselor a victory over the state’s “conversion therapy” ban, after she alleged the law infringed on her First Amendment rights.
The justices ruled 8-1 that Colorado’s conversion therapy law regulates speech based on viewpoints and is not a healthcare regulation, as Colorado had argued. The majority of the justices said Colorado cannot put one-sided restrictions on the substance of what counselors talk to their patients about in therapy settings, sending the case back to the lower courts to reevaluate the conversion therapy ban as a free speech issue instead of a healthcare issue. Justice Ketanji Brown Jackson was the lone dissenting justice.
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The dispute in Chiles v. Salazar centers on Kaley Chiles, a licensed counselor in Colorado, who claims that the state’s law banning “conversion therapy” unlawfully censors her ability to speak with the children and families who seek her out by prohibiting her from trying to dissuade children from changing their gender identities or sexual orientations.
“Under the First Amendment, what matters is not how a government describes its law or whether the law may regulate conduct in other circumstances,” Justice Neil Gorsuch wrote for the eight-justice majority. “What matters is whether, in fact, the law regulates speech in the case at hand. As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express.”
Gorsuch wrote that the law should have been viewed as a First Amendment challenge attempting to regulate certain viewpoints, rather than as a law regulating professional conduct for healthcare providers that only incidentally regulates speech. He took issue with Colorado’s position, noting the Supreme Court has previously rejected the idea that professional speech is “subject to diminished constitutional protection.”
“They may believe that state-imposed orthodoxies in speech pose few dangers and many benefits in this field (and who knows what others),” Gorsuch wrote of Colorado’s argument. “But their policy is not the First Amendment’s. The Constitution does not protect the right of some to speak freely; it protects the right of all. It safeguards not only popular ideas; it secures, even and especially, the right to voice dissenting views.”
The majority opinion also acknowledged the complexity of the topic that Chiles wants to discuss and that Colorado seeks to regulate.
“We do not doubt that the question ‘how best to help minors’ struggling with issues of gender identity or sexual orientation is presently a subject of ‘fierce public debate.’ But Colorado’s law addressing conversion therapy does not just ban physical interventions,” Gorsuch wrote for the majority. “In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”
“It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth,” Gorsuch added. “However well-intentioned, any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”
Gorsuch’s opinion was joined by Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett. Kagan also penned a concurring opinion, joined by Sotomayor, asserting that if the state had adopted a viewpoint-neutral law, rather than one that picks sides in a speech debate, “it would raise a different and more difficult question.”
“A law drawing a line based on the ‘ideology’ of the speaker—disadvantaging one view and advantaging another—skews the marketplace of ideas our society depends on to discover truth,” Kagan wrote. “And such a law suggests an impermissible motive—that the government is regulating speech because of its own ‘hostility’ toward the targeted messages. If the First Amendment prohibits anything, it is the ‘official suppression of ideas.'”
Jackson took issue with the majority’s categorization of the dispute as a free speech issue, writing in her lengthy solo dissent that it is instead about the state’s lawful attempt to regulate healthcare.
“Stated simply, the majority has failed to appreciate the crucial context in which Chiles’s constitutional claims have arisen. Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional,” Jackson said, praising the lower court for arguing there is “a long-established history of states regulating the healthcare professions.”
“Until today, the First Amendment has not blocked their way,” Jackson wrote. “For good reason: Under our precedents, bedrock First Amendment principles have far less salience when the speakers are medical professionals and their treatment-related speech is being restricted incidentally to the State’s regulation of the provision of medical care.”
The case was brought to federal court by Chiles in 2022, but at both the federal district and appeals courts, Chiles’s argument that the law violates the First Amendment was unsuccessful. The Supreme Court agreed in March 2025 to hear Chiles’s case and heard arguments during the first week of its term last October. The case will now return to the lower courts, where, under the standard the justices have instructed judges to use, Colorado’s law is likely to be struck down.
Chiles was hopeful that Tuesday’s free speech win at the Supreme Court would “fuel a greater pursuit of truth, both amongst the professionals and in the counseling room.”
“I view my work as an outpouring of my faith,” Chiles said at a press conference shortly after the ruling was released. “I want what’s best for my clients, and they often seek me out because we have a shared faith. It’s crucial that families have counseling options, including options that allow kids to genuinely talk about experiencing discomfort with their bodies, without the state dictating an outcome.”
“Because of today’s ruling, families will have more options and states will not be able to shut those options down,” she added. “I am overjoyed that today’s decisive win for free speech families and common sense will protect counselors like me, and more importantly, I am thrilled that the ruling will help struggling kids and families who are seeking professional guidance consistent with biological reality.”
SUPREME COURT SKEPTICAL OF COLORADO’S ‘CONVERSION THERAPY’ BAN
The ruling comes after the Supreme Court has heard several cases in the past decade involving Colorado laws that the state claims protect LGBT rights. In those cases, Colorado’s track record at the Supreme Court, where its laws have been challenged for violating personal freedoms, has been poor.
The state has lost cases involving Jack Phillips’s refusal to bake a cake for a gay wedding, something the state attempted to force him to do, and Lorie Smith’s refusal to create same-sex wedding websites, which Colorado also attempted to force her to do. Colorado lost both legal battles on First Amendment grounds.
