Chiles v. Salazar
The Court holds that Colorado's ban on conversion therapy, as applied to a licensed counselor who offers nothing but talk therapy, regulates speech based on viewpoint rather than conduct. Because the law lets a counselor affirm a client's sexual orientation or gender identity but forbids her from speaking in ways that would change it, the lower courts erred in applying only rational-basis review instead of sufficiently rigorous First Amendment scrutiny.
Case background
Kaley Chiles holds a master’s degree in clinical mental health and a state counseling license in Colorado. She begins counseling with no predetermined goals, instead discussing a client’s own goals and then formulating methods of counseling that will most benefit them. On matters of sexuality and gender her clients arrive with different objectives: some are content with their sexual orientation and gender identity and want help only with social issues or family relationships, while others hope to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their bodies. She employs only talk therapy, prescribing no medication and using no physical techniques.
In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in “conversion therapy” with minors, defining the term to reach any practice or treatment that attempts to change an individual’s sexual orientation or gender identity, as well as any effort to change behaviors or gender expressions. The same statute expressly permits counselors to provide acceptance, support, and understanding for identity exploration and development, and to assist a person undergoing gender transition. A complaint to the state regulatory board can trigger discipline up to a fine, probation, or loss of license.
Ms. Chiles filed suit in federal court and sought a preliminary injunction, raising a First Amendment challenge to the law only as it applies to her talk therapy. Both the district court and the Tenth Circuit held she had Article III standing to bring her as-applied pre-enforcement challenge, but both denied the injunction on the merits, reasoning that Colorado’s law is best understood as regulating professional conduct and reaches speech only incidentally, so that it triggers no more than rational-basis review. Judge Hartz dissented. This Court granted certiorari to resolve a circuit conflict over how the First Amendment interacts with laws like Colorado’s when they are applied to talk therapy.
Questions Presented
(1) Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.
Holding
Colorado’s law banning conversion therapy, as applied to Ms. Chiles’s talk therapy, regulates speech based on viewpoint, and the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny.
As applied to a counselor who does nothing but speak, the law does not merely regulate the content of her speech; it prescribes what views she may express, permitting words of acceptance and support while forbidding anything that attempts to change a client’s sexual orientation or gender identity. Speech does not become conduct because a government calls it a “treatment” or a “therapeutic modality.” The First Amendment is no word game, and constitutional rights cannot be circumscribed by mere labels. That the regulation falls only on licensed health care professionals changes nothing; NIFLA expressly rejected the notion that professional speech carries diminished constitutional protection. Nor does the law fit any recognized exception: it compels no disclosure of factual, noncontroversial information in commercial speech, and it does not regulate conduct in a way that only incidentally burdens speech. Colorado’s appeal to traditions of medical licensing, informed consent, and malpractice liability proceeds at far too high a level of generality, and no one of those traditions supports the State’s position on its own terms. The judgment of the Tenth Circuit is reversed and the case remanded.
The Court
Justice Gorsuch delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett joined. Justice Kagan filed a concurring opinion, in which Justice Sotomayor joined. Justice Jackson filed a dissenting opinion.
What this episode contains
This episode is an AI-narrated reading of the majority opinion in Chiles v. Salazar, written by Justice Gorsuch.
AI disclosure: The voice in this episode is AI-generated, using a machine learning model styled to loosely resemble the authoring justice. Tone, inflection, pacing, and emphasis are artifacts of the model and should not be attributed to Justice Gorsuch. The text being read is the Court’s published majority opinion, lightly adapted to improve readability for the spoken format.