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The U.S. Supreme Court has affirmed in a crucial decision for free speech that voluntary discussions in therapy sessions about the reality of biological sex cannot be banned.
In Chiles v. Salazar, the Court ruled Tuesday, 8-1 – with Justice Ketanji Brown Jackson as the lone dissenter – that Colorado’s law against what activists call “conversion therapy” violated the freedom of licensed counselor Kaley Chiles by banning her speech in voluntary counseling conversations with minors who express a desire to change “some expression, behavior, identity, or feeling associated with their ‘sexual orientation or gender identity,’” according to Alliance Defending Freedom (ADF), which represented Chiles.
“Colorado’s law banning conversion therapy, as applied to Ms. Chiles’s talk therapy, regulates speech based on viewpoint, and the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny,” the Court held in its decision delivered by Justice Neil Gorsuch.
The Court added:
The First Amendment protects the inalienable right of every individual to decide for himself “how best to speak,” … and laws regulating speech based on its subject matter or “communicative content” are “presumptively unconstitutional,” triggering “strict scrutiny” that requires the government to prove its restriction is “narrowly tailored to serve compelling state interests” … “Viewpoint discrimination” represents an even more “egregious form” of content regulation from which governments must nearly always “abstain …”
“Colorado’s law regulates the content of her speech and goes further to prescribe what views she may and may not express, discriminating on the basis of viewpoint,” the ruling continued. “The law permits her to express acceptance and support for clients exploring their identity or undergoing gender transition, … but forbids her from saying anything that attempts to change a client’s ‘sexual orientation or gender identity,’ including efforts to change ‘behaviors,’ ‘gender expressions,’ or ‘romantic attraction[s],’ .... Her speech does not become ‘conduct’ just because a government says so or because it may be described as a ‘treatment’ or ‘therapeutic modality.’”
“The First Amendment is no word game, and ‘the exercise of constitutional rights’ cannot be circumscribed ‘by mere labels,’” the Court asserted, continuing that the First Amendment “stands as a bulwark against any effort to prescribe an orthodoxy of views, reflecting a belief that each American enjoys an inalienable right to speak his mind and a faith in the free marketplace of ideas as the best means for finding truth. Laws like Colorado’s, which suppress speech based on viewpoint, represent an egregious assault on both commitments.”
As ADF explained about Colorado’s ban:
On the issue of gender identity, the law only prohibits counseling conversations in one direction. It allows conversations that push young people toward a gender identity different from their sex but prohibits conversations that help them grow comfortable with their body and realign their identity with their sex when they desire to do that. The law also threatens severe penalties, including thousands of dollars in fines, suspension from practice, and even revocation of the counselor’s license. As ADF attorneys point out, this one-sided censorship comes amidst a growing national mental-health crisis and prevents many Colorado children from obtaining the counseling that they desire—and that is likely to help them. Roughly 90% of children who experience gender dysphoria before puberty will regain comfort with their sex if not pushed toward harmful drugs and procedures.
“Kids deserve real help affirming that their bodies are not a mistake and that they are wonderfully made,” said ADF Chief Legal Counsel Jim Campbell, who argued before the Court in October. The U.S. Supreme Court’s decision today is a significant win for free speech, common sense, and families desperate to help their children. States cannot silence voluntary conversations that help young people seeking to grow comfortable with their bodies.”
“The Supreme Court’s ruling in Chiles v. Salazar will help protect counselors from similar laws in more than 20 states and over 100 localities across the country, freeing them to help struggling youth seeking professional guidance,” ADF said.
A map of states and localities that have so-called “conversion therapy” bans can be found here.
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