Blue state's LGBT 'conversion therapy' ban violates Constitution, 'very easy case' for SCOTUS, says expert
The U.S. Supreme Court this week decided to take up a case challenging a Colorado law banning so-called "conversion therapy" after a licensed Christian therapist, Kaley Chiles, claimed the law violated her First Amendment rights.
The case in question, Chiles v. Salazar, comes less than two years after the Supreme Court declined to take up a similar case challenging a law in Washington state that bars licensed therapists from practicing "conversion therapy" on minors. In that case, conservative Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented from the opinion to not take it up, saying they would have granted it review.
"A practicing Christian, Chiles believes that people flourish when they live consistently with God’s design, including their biological sex," the Supreme Court noted in its writ of certiorari accepting the case. "Many of her clients seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires. But Colorado bans these consensual conversations based on the viewpoints they express."
According to the writ, the question to be considered at oral arguments before the court is, "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."
Heritage Foundation legal scholar Sarah Parshall Perry said the law is a "very clear First Amendment violation" and that the state legislature has essentially set up a "constitutional challenge based on viewpoint discrimination."
"The state of Colorado has averred that the legislature has determined that the standard of care for these individuals should not be anything other than affirmation of their desires for homosexual orientation or a divergent gender identity, and this herein really lies the rub," Perry told Fox News Digital in an interview. "and that's exactly how the petitioner, Kaley Chiles, has presented it here. She said, essentially, in layman's terms, on the one side, you're allowing conversations to do nothing but affirm."
The Colorado Attorney General’s Office filed an amicus brief in support of the state's Minor Conversion Therapy Law, which was enacted in 2019. The legislation specifically prevents mental health professionals from engaging in "conversion therapy" with minors.
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"Conversion therapy," according to the legislation, is defined as "any practice or treatment by a licensed physician specializing in the practice of psychiatry that attempts or purports to change an individual's sexual orientation or gender identity, 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."
The law says that "conversion therapy" does not include counseling that helps individuals explore their gender identity, receive social support, or cope with personal challenges, as long as the counseling does not attempt to change a person’s sexual orientation or gender identity. The law also permits assistance for individuals undergoing gender transition, as long as the counseling is not focused on altering their sexual orientation or gender identity.
"In Colorado, we are committed to protecting professional standards of care so that no one suffers unscientific and harmful so-called gay conversion therapy. Colorado’s judgment on this is the humane, smart, and appropriate policy and we’re committed to defending it," Colorado Attorney General Phil Weiser said in a statement about the case.
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While this is one of several recent cases SCOTUS has accepted to hear that deals with gender ideology issues – a culture war issue President Donald Trump has weighed in on through several executive actions since taking office – it also bucked several high-profile petitions last week, including Maryland’s ban on semi-automatic firearms and Rhode Island’s ban of high-capacity magazines.
"It's not in any way emblematic of the fact that there is a conservative in the White House, simply because these justices, three of them, have been appointed by this particular POTUS, I don't think has any bearing one way or the other, and they have been very strong on the First Amendment," Perry said. "This, to my mind, should be a very easy case."