Conversion Therapy Ruling Raises Challenges for State Regulation

The US Supreme Court’s 8-1 ruling Tuesday that Colorado’s ban on conversion therapy for minors likely violates a talk therapist’s free-speech rights raises questions about state licensing boards’ ability to regulate professionals who engage in potentially harmful practices involving speech.

Although the ruling was limited to one counselor in Colorado, the decision likely will affect substantially similar provisions throughout the country. Twenty-three states and more than 100 municipalities have conversion therapy bans, according to Casey Pick, senior director of law & policy at the Trevor Project, a nonprofit that provides suicide prevention and crisis intervention for LGBTQ+ youths.

The decision also could have wider implications for patient safety and regulation of the health-care profession. The American Psychological Association is “deeply concerned” because the ruling affects “the broader authority of state licensing boards to enforce best practices—often enacted for the safety and protection of consumers—in any profession that uses speech to deliver therapeutic interventions,” said APA CEO Arthur C. Evans Jr.

Rachael Soule, the group’s director of business regulations and independent practice, said the decision didn’t make clear if states are now barred from regulating any professional conduct involving speech.

“Most meaningful regulation does exactly that—standards of care define what therapists should and should not say to patients,” she said. Soule said there was no “clear framework” regarding what was permissible rergarding speech and therapy.

Brad Jacob, a constitutional law professor at Regent University, doesn’t share the concern because states can’t regulate speech based on the therapist’s viewpoint.

Talk therapists don’t do anything but talk, and the Colorado provision expressly limited what plaintiff Kaley Chiles could say. This “was an extraordinarily easy case” that couldn’t have come out any other way, Jacob said.

He added that it would have come out the same way if the statute said counselors must provide conversion therapy. The decision protects therapists “whatever side they’re on,” he said.

Suzanne Goldberg, an attorney-advocate for the LGBTQ+ community who teaches at Columbia Law, said the decision shouldn’t affect “medical specialties that involve conduct in addition to speech because the First Amendment traditionally” allows for regulation of speech that accompanies treatment.

Narrow Ruling

The top court didn’t hold Colorado’s law invalid. It ruled that talking to minor patients about changing their sexual orientation or gender identity was viewpoint-based First Amendment-protected speech, and the provision prohibiting it must be analyzed according to whether it’s narrowly tailored to serve a compelling state interest.

The justices sent the case back to the trial court to determine if the state met that exacting standard. This means Colorado still can present evidence justifying the law, Soule said.

Craig Konnoth, a civil rights and health law professor at the University of Virginia Law School said the majority made clear they don’t expect the law to survive. He called arguments for upholding it “a tough sale.”

In his opinion for the majority, Justice Neil M. Gorsuch wrote that “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on” a speaker’s rights and was unlikely to survive a First Amendment challenge.

Justice Elena Kagan agreed the Colorado provision regulates based on viewpoint, saying in a concurring opinion—joined by Justice Sonia Sotomayor—that the law “draws a line” based on the speaker’s views, allowing speech “on only one side” of the issue.

Justice Ketanji Brown Jackson, the lone dissenter, argued that the majority’s opinion “could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers.”

Regent’s Jacob said viewpoint-based speech regulations “will almost always be found” to violate the First Amendment.

Alliance Defending Freedom, which represented Chiles, called the ruling a “decisive victory for free speech.”

“We fully expect the decision to have a nationwide impact and to protect counselors like Kaley across the nation,” Jim Campbell, the group’s chief legal counsel said.

Future Regulation

The court’s “strong free-speech position means that it will be very difficult” for states to regulate the kind of care therapists provide, Columbia’s Goldberg said.

The ruling isn’t limited to conversion therapy, “so there is a real risk that states will be prohibited from regulating what talk therapists say on any topic, even when their statements are known to cause harm—that is, that states will be hindered in preventing harm caused by what therapists say to their clients.”

There are generally correct and incorrect ways of delivering medical care, Konnoth said. The court’s decision “endangers states’ ability to ensure medical care is provided according to the right standard.”

The decision makes it harder for states to regulate health care professionals, Jacob said, but a person “doesn’t lose their free-speech rights just because they’re a doctor.”

Jacob also stressed that the counseling offered by therapists like Chiles is entirely voluntary—the counselor and minor patient, with their parents’ consent, must agree to discuss the issue.

It would be a tougher case if the minor and the parents disagree, raising issues of parents’ rights to direct their childrens’ medical care and minors’ First Amendment rights, he said.

Multiple studies have found conversion therapy to be unsafe and ineffective, while leading to a high self-harm rate among youths, Konnoth said.

The Supreme Court’s ruling didn’t contradict all of the major medical associations that have concluded this therapy is harmful Goldberg said. She also echoed Jackson’s point that anyone who is harmed can sue the therapist for medical malpractice.