The Supreme Court on Tuesday questioned whether conversion therapy — a practice that has been denounced by major medical organizations — actually causes harm to minors.
The justices heard oral arguments in Chiles v. Salazar, one of the multiple LGBTQ+-related cases they plan to hear this term. The court is considering whether Colorado’s law banning conversion therapy for minors, which it defines as any practice that “attempts or purports to change an individual’s sexual orientation or gender identity,” violates a mental health counselor’s First Amendment rights.
No major medical organizations support conversion therapy. The American Medical Association opposes the use of conversion therapy, arguing that exposure to it can lead to depression, anxiety and can potentially “increase suicidal behaviors in a population where suicide is prevalent.” Other groups like the American Psychiatric Association and the American Academy of Child and Adolescent Psychiatry say the practice lacks scientific credibility and is harmful.
Justice Samuel Alito cast doubt on major medical associations’ stance.
“Your argument depends very heavily on the standard of care, which I take it is defined by medical consensus, is that correct?” Alito asked Colorado’s solicitor general, Shannon Stevenson. “Have there been times when the medical consensus has been politicized? Has been taken over by ideology?”
The opposing side did not bring up evidence to suggest that medical consensus had been influenced by politics rather than the safety of patients. Stevenson seemed surprised by the line of questioning.
“We have no facts about that in this case, but I wouldn’t disagree that that’s possible,” Stevenson responded. “I think that’s certainly a concern. And if there were evidence of that in the record, as to whether or not there were a standard of care that wasn’t really based on patient safety, that would be highly relevant evidence.”
Alito said if such evidence existed, it would be enough to argue that Colorado’s law is potentially violating the First Amendment, because the statute is regulating “pure speech.”
Like Alito, Justice Amy Coney Barrett downplayed the medical consensus on conversion therapy: “It’s pretty important that I think how this would apply to cases down the road. So let me describe medical uncertainty as competing medical views.”
“Let’s say that you have some medical experts that think gender-affirming care is dangerous to children, and some that say that this kind of conversion talk therapy is dangerous. Can a state pick a side?” Barrett continued. “I want to be very clear: It’s not that the medical community says, ‘We just don’t know.’ It’s that there are competing strands.”
The case hinges on whether medical treatment can be considered speech. Attorneys for Kaley Chiles, a licensed counselor in the state, argue the law violates her First Amendment rights because she “believes that people flourish when they live consistently with God’s design, including their biological sex,” according to her complaint.
Colorado argued medical treatment isn’t the same as speech — and that Chiles lacks standing because state officials have not enforced the law against her or taken away her license, so she has not shown actual harm.
The ruling in the case could have widespread implications for LGBTQ+ people nationwide. Currently, 23 states and the District of Columbia have laws that ban health providers from subjecting minors to conversion therapy. If the court declares that Colorado’s statute is unconstitutional, that decision could lead to the overturning of other similar state laws.
The case comes nearly four months after the court issued a decision in U.S. v. Skrmetti that greenlit Republican states’ bans on gender-affirming care. In the ruling, Chief Justice John Roberts wrote that there was “fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field.” For that reason, he concluded, the legality of gender-affirming care should be decided by “the people, their elected representatives, and the democratic process” — evoking the court’s 2022 Dobbs v. Jackson decision.
Colorado’s ban on conversion therapy passed the legislature with bipartisan support six years ago, after 17 states had enacted similar laws. The state’s stance throughout the lawsuit has been that its ban does not violate the Constitution because it governs treatments, not speech. Stevenson said in court that “it does not stop a professional from expressing any viewpoint about that treatment to their patient or anyone else.”
“The state cannot lose its power to regulate the very professionals that it licenses just because they are using words,” Stevenson argued before the court. “A health care provider cannot be free to violate the standard of care just because they are using words, and a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.”
Stevenson said medical treatment should not be viewed as speech: “Anytime you exclude one harmful practice, you are, by definition, saying these things are allowed because they are not harmful, and these things are excluded because they are harmful. That’s the driving force behind regulating the particular practice.”
But justices repeatedly expressed skepticism and seemed sympathetic to the arguments of the opposing side.
After Stevenson said that the law applies to only people with medical licenses in the state, stating that “religious ministers” and “life coaches” are not impacted by the statute and “could perform” conversion therapy, Thomas suggested the distinction was insufficient.
“What if someone who happened to be devoutly religious and actually relied more on the minister than the therapist?” he asked. “It seemed that that person would be equally dangerous.”
Alito said Colorado’s statute “looks like blatant viewpoint discrimination,” particularly if a counselor denies a minor access to conversion therapy that they may want to access.
Liberal Justice Elena Kagan shared Alito’s concerns.
“If a doctor says, ‘I know you identify as gay, and I’m going to help you accept that,’ and another doctor says, ‘I know you identify as gay and I’m going to help you to change that,’ and one of those is permissible, and the other is not — that seems like viewpoint discrimination,” Kagan added.
And though Justice Sonia Sotomayor asserted at one point that “there are studies that say that this advice does harm the people emotionally and physically,” she later on said, “The thing that gives me pause … is that none of the studies say that talk therapy is harmful. Is that correct?”
In response, Hashim Mooppan, U.S. principal deputy solicitor general, said that while there is evidence that “aversive” therapy, like electric shock, is harmful to patients, there are no studies that state that “talk therapy” — as in a therapist verbally engaging in conversion therapy — “is either harmful or ineffective.” (The Trump administration requested to participate in the case in Chiles’ support.)
The conservative Alliance Defending Freedom, which represented Chiles, argued the ban amounted to censorship.
“This law prophylactically bans voluntary conversations, censoring widely held views on debated moral, religious and scientific questions,” said James Campbell of the Alliance Defending Freedom.