By John Kruzel and Andrew Chung
WASHINGTON (Reuters) -The U.S. Supreme Court began hearing arguments on Tuesday in a challenge on free speech grounds to a Colorado law banning psychotherapists from conducting “conversion therapy” that aims to change a minor’s sexual orientation or gender identity.
The dispute pits Colorado’s authority to forbid a healthcare practice it considers unsafe and ineffective against the rights of Christian licensed counselor Kaley Chiles, who challenged the law under the U.S. Constitution’s First Amendment protections against government abridgment of free speech.
Chiles appealed a lower court’s decision rejecting her claim that the 2019 statute unlawfully censors her communications with clients in violation of the First Amendment. The state has said it is regulating professional conduct, not speech.
“Colorado forbids counselors like Kaley Chiles from helping minors pursue state-disfavored goals on issues of gender and sexuality. This law prophylactically bans voluntary conversations censoring widely held views on debated moral, religious and scientific questions,” James Campbell, a lawyer for Chiles, told the justices during the arguments.
Lawyers for Chiles have pushed for Colorado’s measure to be assessed under the most stringent form of judicial review, known as strict scrutiny.
Colorado insists that its law is subject only to a lesser type of legal review, Campbell said. “Yet that would allow states to silence all kinds of speech in the counseling room such as disfavored views on divorce or abortion,” Campbell added.
At issue in the case, Campbell said, is “voluntary speech between a licensed professional and a minor.” If heightened scrutiny does not apply, Campbell told the justices, “states can transform counselors into mouthpieces for the government.”
Many people have experienced life-changing benefits from the kind of counseling that Chiles wants to provide, Campbell said.
“The First Amendment doesn’t permit Colorado’s censorship,” Campbell added.
Democratic Colorado Governor Jared Polis, the first openly gay man to be elected as a U.S. state governor and a critic of conversion therapy, signed the measure into law in 2019. Republican President Donald Trump’s administration is backing Chiles in the dispute.
The case thrusts the Supreme Court back into the U.S. culture wars and gives its 6-3 conservative majority another opportunity to elevate the interests of a conservative Christian litigant at the expense of protections for LGBT people.
Colorado is among more than two dozen states and the District of Columbia that restrict or prohibit conversion therapy for patients younger than 18. Medical groups such as the American Psychological Association in court papers cited studies showing that the practice has been associated with a range of harms including an increased likelihood of transgender minors running away from home or attempting suicide.
Chiles has said she “believes that people flourish when they live consistently with God’s design, including their biological sex.” Colorado’s true aim with this law, Chiles has argued, is “to silence and marginalize views it dislikes.”
Colorado’s law prohibits licensed mental healthcare providers from seeking to change a minor’s sexual orientation or gender identity according to a predetermined outcome, with each violation punishable by a fine of up to $5,000. This includes attempts to reduce or eliminate same-sex attraction or change “behaviors or gender expressions.”
The law does permit treatments that provide “assistance to a person undergoing gender transition,” as well as therapies centered on “acceptance, support and understanding” for “identity exploration and development.”
Chiles sued Colorado officials in 2022 in an attempt to block the statute.
U.S. District Judge Charlotte Sweeney, an appointee of Democratic former President Joe Biden, in 2022 ruled against Chiles, deciding that Colorado’s ban was a permissible regulation of professional conduct, not speech. The judge also found that conversion therapy is “ineffective and harms minors who identify as gay, lesbian, bisexual, transgender or gender nonconforming.”
The Denver-based 10th U.S. Circuit Court of Appeals upheld the judge’s ruling, prompting Chiles to appeal to the Supreme Court, whose ruling is expected by the end of June.
Colorado has urged the justices to uphold its law, citing the state’s interest in ensuring that minors receive safe and effective mental healthcare and arguing that states routinely regulate healthcare practices, including talk therapy, to guard against “substandard” care.
Chiles is represented by the Alliance Defending Freedom, a conservative religious rights group that has secured high-profile Supreme Court victories on behalf of a baker and wedding website designer who refused, based on their Christian beliefs, to serve gay couples.
Tuesday’s arguments are being held on the second day of the court’s new nine-month term. Later in the term, the justices are due to hear arguments in bids by Idaho and West Virginia to enforce Republican-backed state laws banning transgender athletes from female sports teams at public schools.
(Reporting by John Kruzel; Additional reporting by Andrew Chung; Editing by Will Dunham)
