A therapist’s challenge to Colorado’s ban on treatment the state says harms LGBTQ+ youths may seem like just the next battle in the culture wars, but the case presents the US Supreme Court with an opportunity to reexamine the lines between a state’s regulatory authority and the First Amendment.

The case set for oral arguments Tuesday could have a sweeping impact depending on the outcome, said Suzanne Goldberg, a professor at Columbia Law School. Much depends on whether the justices are open to “invading” states’ traditional police powers or whether they will defer as usual when it comes to matters historically within states’ authority.

Some health-care practitioners say that authority is generally butting up their ability to speak with patients about certain topics.

The Supreme Court therefore may view the case not so much as one over LGBTQ+ and religious rights—a key issue amid various moves by the Trump administration—but rather as a broader federal-state conflict about speech.

Viewed that way, the case is a “pretty straightforward application of First Amendment law,” said Brad Jacob, a professor at Regent University School of Law. He believes the case won’t extend beyond curtailing broad state attacks on “pure” speech.

‘Heart of the First Amendment’

Washington, D.C., and 23 states ban conversion therapy for minors, a practice encouraging LGBTQ+ patients to question their sexual orientation or gender identity. Colorado defines the term as therapy designed “to change an individual’s sexual orientation, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.”

This isn’t the justices’ first opportunity to weigh in on the issue: just under two years ago they declined to review a US Court of Appeals for the Ninth Circuit decision upholding Washington state’s ban. Justices Clarence Thomas, Samuel A. Alito Jr., and Brett M. Kavanaugh said they would have granted review of that case.

Thomas said at the time that the issue “strikes at the heart of the First Amendment” because Washington’s law prohibited licensed counselors from voicing “anything other than the state-approved opinion on minors with gender dysphoria.” Alito called it an issue of “national importance.”

The Tenth Circuit’s decision in the Colorado case has since deepened a circuit split. That court echoed the Ninth Circuit in approving a ban, but disagreed with an Eleventh Circuit decision curtailing a Florida law. The Third Circuit upheld New Jersey’s conversion therapy ban, but only after criticizing the Ninth Circuit and
subjecting the state law to strict scrutiny review, said John Bursch, an attorney who is part of the Alliance Defending Freedom team representing the Colorado plaintiff.

This is the first time the top court has considered the constitutionality of a state’s restrictions on professional speech since National Institute of Family and Life Advocates v. Becerra in 2018. There, the Court struck down a California law requiring anti-abortion pregnancy centers to publicly post information about where clients could get abortions.

Jacob said it’s not an exact parallel because it involved “compelled” speech, instead of a state burden, but he expects the same conclusion.

Professional Speech

The case before the justices Tuesday involves Kaley Chiles, a licensed therapist who says Colorado’s ban unlawfully censors her conversations with clients and violates the First Amendment.

The Tenth Circuit refused to block enforcement, saying the law regulated conduct, only incidentally burdened speech, and was rationally related to Colorado’s interest in protecting minors from ineffective and harmful therapies.

There’s no debate that states can regulate licensed professionals’ conduct, including by restricting speech that’s incidental to treating or advising patients.

The key question for the justices will be whether the therapy is pure speech, Bursch said. Conversion therapy is “just words,” and thus can be regulated only within the strictures of the First Amendment, he said.

Jacob agreed. Therapy is about as close to “garden variety” speech as one can get, and states can’t forbid speech just because they disagree with it, he said.

But professional speech differs from private speech, said Praveen Fernandes, vice president at the Constitutional Accountability Center.

Therapeutic treatment may consist solely of talking, but that doesn’t make it into something other than advice and treatment, he said. States regulate professional conduct to protect their residents, and a ruling against Colorado would erode both that goal and residents’ reliance on the regulations, he said.

Moreover, Colorado lawmakers adopted the provision after hearing “overwhelming” evidence that conversion therapy harms LGBTQ+ youth, Goldberg said.

Observers will watch to see whether the justices defer to state lawmakers as in United States v. Skrmetti, which deferred to the Tennessee legislature’s conclusion that gender-affirming care harms minors despite evidence to the contrary.

The Colorado Attorney General’s Office didn’t respond to a request for comment.