‘Conversion Therapy’ Ban Doesn’t Withstand Strict Scrutiny

The US Supreme Court heard oral arguments Oct. 7 in Chiles v. Salazar, the blockbuster case challenging a Colorado law that bans counseling to help young people who want to align their identity with their biological sex. The law harms those children by denying them voluntary conversations they seek while allowing state-preferred counseling that promotes a gender transition—which often leads to dangerous and life-altering drugs and procedures. Many of the justices appeared skeptical of the law in no small part because it censors one viewpoint on a highly debated issue.

Alliance Defending Freedom, where I serve as chief legal counsel, argued this case on behalf of petitioner Kaley Chiles, a licensed Colorado counselor. Chiles views her counseling as an outpouring of her Christian faith, and many clients come to her because they share her moral or religious beliefs.

But Colorado passed a law banning voluntary counseling conversations between a licensed counselor and a minor struggling with gender dysphoria if the client’s goal is to get comfortable with her body by aligning her identity and sex.

Counselors must choose between denying help to these children or facing punishment, such as thousands of dollars in fines, suspension from practice, or loss of their professional license.

At oral argument, Colorado urged the court to give it a blank check to regulate anything it labels a “medical treatment.” But many justices understood that applying Colorado’s law to Chiles’ counseling regulates only words—not conduct. Chiles doesn’t prescribe medication, perform medical procedures, or do anything other than have conversations with clients who want them. So, as applied to Chiles, Colorado’s law bans only speech. That’s why the state must reckon with the First Amendment.

Colorado also insisted that professionals such as Chiles receive reduced First Amendment protection. But in 2018, the Supreme Court held in NIFLA v. Becerra that just because words are spoken by a professional doesn’t mean they aren’t protected by the First Amendment. Otherwise, states could regulate all manner of private conversations between counselors and clients.

States could ban counseling discouraging divorce or abortion. That would transform counselors into mouthpieces for the government.

Perceiving this danger, many justices appeared to accept that Colorado’s law must overcome the most demanding test in constitutional law—strict scrutiny. And Colorado’s own evidence shows it can’t.

The state has identified no study focusing on what’s at issue in this case—voluntary counseling between a licensed counselor and a willing minor. Its evidence even concedes there is no proof that these conversations cause harm, so Colorado has come nowhere close to making the strong showing required to justify censoring a government-disfavored viewpoint. Given this weakness, it’s no surprise that oral argument initially focused on Colorado’s ever-shifting argument that its counseling ban doesn’t cover Chiles’ intended counseling.

Justice Sonia Sotomayor suggested that there might be no standing if Colorado were to disavow enforcing its law against Chiles’ speech. Yet later, when pressed by Justice Neil Gorsuch, Colorado’s attorney admitted that the law bars conversations when the client seeks to realign her identity with her sex—the very conversations Chiles will have with clients. That exchange prompted Sotomayor to announce that this “settles the standing question.”

Even before Colorado’s concession, the state’s 11th-hour attempt to rewrite its law was baffling. For the first time in the case, Colorado told the Supreme Court its law bans only efforts to change how someone identifies while allowing attempts to change related behaviors, expressions, and attractions. But, as the attorney for the US argued, that means a counselor could say, “I can’t change your [identity], but I can try to change your behavior, and I’m going to use electroshock to do it.”

It’s implausible the Colorado legislature intended its law to have this effect. And if the court accepts this interpretation, it would undermine Colorado’s case even further. That’s because the state has no legitimate—much less compelling—reason to allow this kind of conduct while censoring Chiles’ voluntary conversations with willing clients.

Colorado’s effort to censor disfavored speech should fail, not only because, as Justice Samuel Alito said, it’s “blatant viewpoint discrimination,” but because it undermines the state’s asserted interest—protecting children.

In one study, almost 90% of children who struggled with gender dysphoria before puberty recovered an identity consistent with their sex. Yet Colorado’s law bars the doors of the counseling room to children who want to pursue that goal, denying them the compassionate conversations they need.

A ruling that stops Colorado’s law from censoring voluntary conversations would boost free speech for all.

In Colorado’s view, states could go further and forbid the same counseling for adults, or they could prohibit counselors from expressing other state-disfavored views. Equally important, a ruling against the state would allow the children and families searching for counselors like Chiles to get the professional counseling they want and need.

For too long, young people in Colorado and other states with similar bans have been unable to find a counselor to discuss how best to achieve goals they have set for themselves. The First Amendment doesn’t permit Colorado’s censorship. The Supreme Court should say so.

The case is Chiles v. Salazar, US, No. 24-539, argued 10/7/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Jim Campbell is chief legal counsel with Alliance Defending Freedom and argued on behalf of counselor Kaley Chiles before the US Supreme Court in Chiles v. Salazar.

Write for Us: Author Guidelines