Colorado Tries to Ban Faith-Informed Counseling: Chiles v. Salazar
Kaley Chiles is a licensed professional counselor in Colorado who works with clients who face a variety of mental health problems: trauma, personality disorders, eating disorders, and addiction. She is employed by Deeper Stories Counseling in Colorado Springs and is a Christian. Some of her clients are Christians and come to her having experienced same-sex attractions or dissatisfaction with their own biological bodies, termed gender dysphoria. In these cases, they want help to be freed “from what they see as harmful self-perceptions and sexual behaviors” which are not aligned with their religious beliefs. The therapy she provides is faith-informed counseling; that is, talking with the clients about how God’s Word establishes the foundation upon which persons should understand their personal identities and control their desires.
Chiles’ therapy is grounded in the traditional view of human sexuality espoused by historic Christianity for generations. It teaches that one’s sex, either male or female, is set at conception and ordained by God. It is evident at birth according to one’s reproductive organs and biology. Normal sexual conduct, according to this traditional biblically based view, is a pairing of one male and one female; that is, it is heterosexual and monogamous. Desires for someone of the same sex or discontent with one’s natural sex is viewed as contrary to the moral guidance of scripture.
In Colorado, however, Chiles found herself in conflict with an opposing view of human sexuality. This view served as the foundation for a state law prohibiting mental health care providers from engaging in counseling like hers with patients under 18. Since her faith-informed therapy with certain clients is meant to dissuade them from romantic attractions toward the same sex or guide them away from seeking to “transition” to a sex other than their birth sex, it is officially prohibited by the state’s Minor Conversion Therapy Law (MCTL). (RELATED: When the State Polices Speech)
The Colorado ban labels Chiles’ faith-informed therapeutic approach as “conversion therapy” and outlaws it.
The Colorado ban labels Chiles’ faith-informed therapeutic approach as “conversion therapy” and outlaws it. To the contrary, the MCTL (and regulations based upon it) exempts counselors who practice “gender affirmation” therapy from being banned. “Gender affirmation” is a counseling approach that accepts, supports, and encourages decisions by clients who are minors to pursue same-sex attractions or make gender transitions. This view, in contrast to the traditional view, maintains that sexual identity is not biologically set. Instead, it is merely a matter of personal choice. Any effort by a professional, including a counseling therapist, to change a client’s self-determined sexual orientation is deemed harmful and, in its most radical version, proponents of this view seek to outlaw any counseling that is opposed to the “gender affirming” therapies. In other words, Colorado-licensed counselors are free to provide “gender affirming therapy” while fines, suspensions, or loss of license threaten Colorado therapists like Chiles.
Therefore, to protect her right to use faith-informed content in giving guidance to her clients, Chiles filed a lawsuit in federal court in Colorado asking the court to halt the enforcement of the ban as an infringement of her right to freedom of speech. That court denied her request. She then appealed to the federal 10th Circuit Court of Appeals, but it also denied her appeal, concluding that her spoken therapy was not “speech” at all. Instead, the appeals court devised a special category for regulated professional expression, calling it “conduct,” effectively taking it outside of the substantial constitutional protections usually accorded citizens where the government restricts their speech.
Why does it matter if Chiles’ faith-informed counseling approach is determined to be “conduct” instead of “speech”? In her case, the state government’s regulatory administration would have to demonstrate only the feeblest “rational basis” for regulatory bans for it to pass constitutional muster. Lawyers refer to this “rational basis” requirement as a “low bar” requirement because it is the easiest and most lenient standard to meet. By contrast, had the 10th Circuit found Chiles’ counseling therapy was “speech,” the results would have been significantly different.
Freedom of speech is a highly valued fundamental right, which, if infringed, triggers prior rulings that would require Colorado to show that it had weighty and convincing reasons — often called “compelling” — to continue to preserve the ban and save it from being unconstitutional. That compelling-interest requirement, because it places the highest proof burden on the government, is what lawyers call “strict scrutiny.” It is a high bar which Colorado would be unlikely to clear, given the facts of the case, consequently creating a high expectation of a win for Chiles.
What is the U.S. Supreme Court going to do with the case?
First, the Supreme Court should have no difficulty finding that this is a speech case. Fortunately for Chiles, the court has a long history of interpreting the scope of protected speech broadly, even ruling that flag burning, labor union picketing, and artistic expression constitute speech deserving protection of the most significant sort.
Next, the court has made clear that “the First Amendment means that government has no power to restrict expression because of its message, ideas, its subject matter, or its content.” The Colorado ban is targeting Chiles’ particular content. That is evident because the ban applies to Chiles only if her speech to clients contains specific content that shows an intent to change the client’s sexual orientation, alter the client’s gender expressions, or counsel away from gender transitioning. Speech that counsels the faith-informed reasons for those changes is precisely what Chiles wants to be able to convey to her clients. But it is those very words and content that promise to subject her to possible prosecution.
In addition, Colorado’s ban also displays what the court has described in other cases as “viewpoint discrimination.” Viewpoint discrimination could hardly be more apparent than it is here. Chiles’ viewpoint is contrary to the state’s viewpoint about human sexuality. Her view is disfavored and therefore prohibited by law. Chiles’ traditional view of sexuality is deemed harmful by Colorado and thus barred. Colorado’s “gender affirming” view of sexuality is heralded as beneficial and enlightened. Therefore, the state’s view is permitted by a detailed exception that allows therapy speech that promotes “identity exploration,” affirms self-declared sexual identities, and helps clients accomplish gender change. It is obvious that Colorado’s ban was produced by state legislators and a governor who became so completely persuaded by this non-traditional version of human sexuality and its “gender affirming therapy” that they could not tolerate Chiles’ traditional mode of faith-informed therapy and, therefore, sought to and succeeded in outlawing it.
Chiles not only has a strong case substantively, but the ruling against her by the 10th Circuit Court of Appeals contributes to what is called a “circuit split.” A circuit split occurs when two or more circuit courts of appeals render conflicting opinions on the same issue. In this case, there was the 10th Circuit ruling, whereas the 9th Circuit found in another case that professional expression or conversation fell outside the speech protections of the First Amendment; in addition, the 3rd and 11th Circuits ruled that the professional expression was just another example of speech and should be fully protected as such. The “advantage” to Chiles is that when such splits occur, the U.S. Supreme Court generally seeks to restore uniformity of interpretation and therefore resolves the split. Elsewhere, in another related case, National Institute of Family and Life Advocates v. Becerra (2018), the Supreme Court made it clear that it is unwilling to recognize “professional speech” as a “separate category of speech” that receives diminished constitutional protection “merely because it is uttered by a ‘professional.’”
Making a strong and unequivocal decision in favor of Kaley Chiles would be an important step toward ending the circuit split. Most importantly, it would allow faith-informed counselors like Chiles — in 24 states faced with similar bans — to have the legal means to oppose the bans and reestablish a broader and healthier spectrum of therapy choices for young clients struggling with sexual-identity problems.
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