This story was produced as part of the Colorado Capitol News Alliance. It first appeared at cpr.org.
Does Colorado’s 2019 law that prohibits conversion therapy for minors violate free speech?
During 90 minutes of oral argument Tuesday morning, the Supreme Court justices had tough questions for both sides, with a focus on how demanding the court’s review of the law must be; whether they should give it “strict scrutiny” as potentially burdening a fundamental right, or follow the state’s argument that talk therapy is regulated medical conduct.
Kaley Chiles, a Colorado Springs-based licensed therapist, is challenging Colorado’s law, arguing the state is unconstitutionally restricting her use of speech in her work. Chiles is represented by Alliance Defending Freedom, a conservative legal powerhouse that claims 16 Supreme Court victories in recent years.
Her attorney argued strict scrutiny should apply because the law, he contends, limits Chiles’s free speech based on viewpoint.
That means the government must show a compelling interest for the law and use the least restrictive means to get there. It's a difficult standard to achieve and would likely mean the state’s ban would go down.
Colorado’s Solicitor General, Shannon Stevenson, argued that the court should view talk therapy provided by state-licensed counselors as similar to other forms of medical care.
“A state cannot lose its power to regulate the very professionals that it licenses just because they are using words. A healthcare 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,” argued Stevenson.
There have been conflicting rulings in lower federal courts about whether conversion therapy falls under the First Amendment.
The Tenth Circuit upheld Colorado’s law, finding it regulates Chile’s “professional conduct” or “treatment” and not her speech. However, another appeals court, the Eleventh, ruled against conversion therapy bans, finding the practice is protected speech.
This is a developing story and will be updated.
