WASHINGTON | The Supreme Court on Tuesday ruled against a law banning “conversion therapy” for LGBTQ+ kids in Colorado, one of about two dozen states that ban the discredited practice.
An 8-1 high court majority sided with a Christian counselor who argues the law banning talk therapy violates the First Amendment. The justices agreed that the law raises free speech concerns and sent it back to a lower court to decide if it meets a legal standard that few laws pass.
“Colorado is for everyone, no matter who you are. Conversion therapy doesn’t work, can seriously harm youth, and Coloradans should beware before turning over their hard-earned money to a scam,” Gov. Jared Polis said in a statement. “I am evaluating the U.S. Supreme Court ruling and working to figure out how to better protect LGBTQ youth and free speech in Colorado. We are fighting for everyone’s right to be who you are in our Colorado for all.”
Justice Neil Gorsuch, writing for the court, said the law “censors speech based on viewpoint.” The First Amendment, he wrote, “stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”
Gorsuch’s opinion drew support from liberal Justices Elena Kagan and Sonia Sotomayor.
A state could similarly not ban talk therapy designed to affirm a minor’s sexual orientation or gender identity, Kagan wrote. “Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward,” she wrote.
In a solo dissent, Justice Ketanji Brown Jackson wrote that states should be free to regulate health care, even if that means incidental restrictions on speech. The decision, Jackson wrote, “opens a dangerous can of worms” that “threatens to impair states’ ability to regulate the provision of medical care in any respect.”
The decision is the latest in a line of recent cases in which the justices have backed claims of religious discrimination while taking a skeptical view of LGBTQ+ rights.
Counselor Kaley Chiles, with support from President Donald Trump’s Republican administration, said the law wrongly bars her from offering voluntary, faith-based therapy for kids.
Chiles contends her approach is different from “conversion therapy” practices from decades ago, like shock therapy. Her attorneys argued that the ban makes it hard for parents to find therapists willing to discuss gender identity with kids unless the counseling affirms transition.
“I look forward to being able to help them when they choose the goal of growing comfortable with their bodies,” Chiles said in a statement. “Counselors walking alongside these young people shouldn’t be limited to promoting state-approved goals like gender transition, which often leads to harmful drugs and surgeries.”
Colorado disagreed, saying its law does allow wide-ranging conversations about gender identity and sexual orientation and exempts religious ministries. The state says the measure simply bars using therapy to try to “convert” LGBTQ+ people to heterosexuality or traditional gender expectations, a practice that has been scientifically discredited and linked to serious harm.
The law doesn’t violate the First Amendment, Colorado argued, because therapy is different from other types of speech since it’s a form of health care that the state has a responsibility to regulate.
Advocates for LGBTQ+ people condemned the ruling, as well as “conversion therapy.”
“This is a dangerous practice that has been condemned by every major medical association in the country. Today’s decision does not change the science, and it does not change the fact that conversion therapists who harm patients will still face legal consequences,” Polly Crozier, director of family policy at GLAD Law, said in a statement.
The 2019 law carries the possibility of fines and license suspension, but no one has been sanctioned under it. The ruling is expected to eventually make similar laws in other states unenforceable.
Chiles was represented by the Alliance Defending Freedom, a conservative legal organization that has appeared frequently at the court in recent years. The group also represented a Christian website designer who successfully challenged Colorado anti-discrimination law because she didn’t want to work with same-sex couples.
Twenty-three states have laws barring health care providers from offering “conversion therapy” for minors, and another four have some restrictions, according to the Movement Advancement Project, an advocacy group that tracks policies that impact LGBTQ+ people.
The high court agreed to hear the case after the 10th U.S. Circuit Court of Appeals in Denver upheld the law. Another Atlanta-based appeals court, the 11th U.S. Circuit Court of Appeals, had struck down similar bans in Florida.
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This ruling has nothing to do with 1st Amendment rights! States have long had power to regulate medical care. Justice Brown is the only one who got it right! When you go a psychologist, you are getting medical care through a licensed professional. That care comes conversations based on a higher standard than personal thoughts. As a licensed professional they are dispensing healthcare, not personal thoughts. We are consistently seeing rulings that erode the higher standards ethic! This is sloppy judicial work, to say nothing about ignoring common sense!