The United States Supreme Court endorsed a religious counselor’s challenge to Colorado’s ban on "conversion therapy" for gay and transgender minors, saying it likely violates the First Amendment, handing the LGBTQ community another setback in a decision that will reverberate in nearly half the country.
The 8-1 decision last 31 March, which had conservative and liberal justices in the majority, does not technically strike down the law, but means lower courts will now review it again and apply the highest form of judicial scrutiny. That means Colorado’s law, and others like it, will almost certainly be struck down by lower courts.
Colorado enacted its law in 2019 to protect gay and transgender youth subjected to the scientifically discredited practice of attempting to "convert" their sexual orientation or gender identity. Advocacy groups say roughly half of US states have banned the therapy for minors.
The case largely broke down along a question of whether therapy is more like a medical practice, which the government can and does regulate, or whether what goes on in a session is speech protected by the First Amendment.
Justice Neil Gorsuch, writing for an eight-justice majority, came down hard on the side of speech.
"Colorado may regard its policy as essential to public health and safety," Gorsuch wrote. "Certainly, censorious governments throughout history have believed the same."
The conservative justice added, "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."
Kaley Chiles, a licensed counselor in Colorado, challenged the law on First Amendment grounds. She said she would engage in her "faith-informed counseling" only when clients sought it out. And she disavowed especially controversial practices, such as the use of electric shock therapy or drug-induced nausea. Chiles described her work as helping clients who "have a goal to become comfortable and at peace" with their body.
Chiles and other therapists who engaged in the practice could have faced serious repercussions, including up to US$ 5,000 fines for each violation and ultimately be stripped of their licenses.
The court’s decision wound up attracting two members of the court’s liberal wing, Justices Elena Kagan and Sonia Sotomayor.
Kagan wrote in her concurring opinion that the problem with Colorado’s law is that it is based on a viewpoint because it is focused on one side of the debate over trans youth. Therefore, another state could enact a law barring counselors from offering therapy that affirms a minor’s sexual orientation or gender identity.
"Because the state has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward," Kagan wrote in a short opinion joined by Sotomayor.
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