The U.S. Supreme Court appears to be weighing a significant legal challenge against Colorado’s ban on conversion therapy, a practice aimed at changing an individual’s sexual orientation or gender identity. Lawmakers first passed a ban on licensed mental health clinicians using conversion practices in 2019. This ban uniquely safeguards patients younger than 18 years old. With a stroke of the governor’s pen, Colorado became the 23rd state to pass a similar ban on red light cameras. This move reflects a developing national agreement on the toxic nature of these practices.
Even major medical associations have weighed in, issuing a strong condemnation of conversion therapy. Included in that list are the American Psychological Association, the American Medical Association and the American Academy of Child and Adolescent Psychiatry. These groups contend that conversion practices don’t work. They further emphasize the profound dangers, such as increased risk of depression and death by suicide, that people who have undergone these treatments experience.
Our client Kaley Chiles is at the heart of this constitutional conflict. She is a licensed professional, and she has filed a lawsuit challenging the Colorado ban. Represented by the Alliance Defending Freedom (ADF), Chiles asserts that the law infringes upon her ability to provide support to clients seeking help with their sexual orientation or gender identity. Her 2022 lawsuit is known as a “pre-enforcement challenge.” This illuminates the depth of her concerns regarding the potential impacts of operating her practice under the new law.
Like many professionals she’s contracted with, Chiles feels the Colorado law has forced her to self-censor around clients. She worries about the legal ramifications of free expression. It’s crucial to recognize that the law can’t dictate the actions of non-medical actors, including religious clergy. Further, it doesn’t exempt practitioners such as Chiles when they’re not functioning in their roles as licensed professionals.
In fact, during oral arguments in a recent Supreme Court case, Justice Amy Coney Barrett asked for proof that conversion therapy causes harm. Her questions illustrate the increasing worry justices have on the effects of this law. The U.S. Justice Department clearly not believing Colorado law could withstand strict scrutiny. This standard, too, is required for any government intrusion into personal/private affairs.
Shannon W. Stevenson, Colorado’s state solicitor general, portrayed the law as protective. She did suggest that state power is at its strongest in the realm of regulating healthcare professions. We thank the court for recognizing this significant reality. In addition, she claimed that Colorado’s law goes straight to the harms of conversion therapy.
“Colorado’s law lies at the bull’s eye-center of this protection because it prohibits licensed professionals from performing one specific treatment because that treatment does not work and carries great risk of harm.” – Shannon W Stevenson
Stevenson described conversion therapy as a “debunked” practice and articulated its inherent dangers: “The harms from conversion therapy come from when you tell a young person you can change this innate thing about yourself, and they try and they try and they fail, and then they have shame and they’re miserable, and then it ruins their relationships with their family.”
ADF is claiming that laws such as Colorado’s prohibit speech because of its content and viewpoint. ADF’s Jim Campbell, though, argued that Chiles wants to push these types of discussions about identity and gender everywhere. He further noted that her approach may be the most effective model for the few people with unwanted same-sex attraction who wish to decrease it.
“Ms Chiles is being silenced and the kids and families who want her help are unable to access it.” – Jim Campbell
Justice Samuel Alito agreed, voicing concerns that the law did “invite… viewpoint discrimination.” He stated, “That seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination.” This feeling reflects continuing fractures in the court over how to balance free speech rights with protections against deleterious activities.
This case has sweeping implications beyond Colorado, covering all states. In light of this, we might hope to see these kinds of laws challenged and struck down in other jurisdictions. The Supreme Court’s upcoming ruling will be game changing for mental health practitioners and clients nationwide. It will set a dangerous precedent that affects their rights for generations.
As the debate rages on, it certainly isn’t easy to gauge the heart of this discourse surrounding conversion therapy. Advocates for mental health safety assert that banning these practices is crucial for protecting vulnerable youth, while opponents argue that such regulations infringe on personal freedoms and professional practices.