Supreme Court skeptical of state bans on conversion therapy aimed at LGBTQ kids

WASHINGTON — The Supreme Court on Tuesday appeared poised to back a free speech challenge to a Colorado law that bans conversion therapy aimed at young people questioning their sexual orientations or gender identities in a case likely to have national implications.

If the court rules against the state, it could affect more than 20 states that have similar bans and raise new questions about other long-standing state health care regulations.

The court, which has a 6-3 conservative majority that often backs conservative free speech claims, heard oral argument in a case brought by Kaley Chiles, a Christian therapist, who says the 2019 law violates her free speech rights under the Constitution’s First Amendment.

Conversion therapy, favored by some religious conservatives, seeks to encourage gay or lesbian minors to identify as heterosexual and transgender children to identify as the gender identities assigned to them at birth. Colorado bans the practice for licensed therapists, not for religious entities or family members.

At issue is whether such bans regulate conduct in the same way as regulations applying to health care providers, as the state argues, or speech, as Chiles contends. Chiles says she does only talk therapy.

Based on the questions asked during oral argument, a Supreme Court majority is likely to conclude that Colorado is trying to regulate speech in a way that favors one viewpoint over another.

Drawing a distinction between speech that encourages minors to embrace their gender identity or sexual orientation while prohibiting them from questioning it “looks like blatant viewpoint discrimination,” said conservative Justice Samuel Alito.

Justices seemed skeptical of the state’s argument that the speech in question is tied to the kind of conduct that medical regulators often impose restrictions on.

“Just because they are engage in conduct doesn’t mean their words aren’t protected,” Chief Justice John Roberts said.

He and other justices pointed to a 2018 Supreme Court ruling^[1] in which the conservative majority backed a free speech challenge to a California law that requires anti-abortion pregnancy centers to notify clients about where abortion services can be obtained.

The court’s liberal justices asked more probing questions of Chiles’ lawyer but, of the three, only Justice Ketanji Brown Jackson seemed to fully embrace the state’s arguments in favor of the ban.

She brought up the Supreme Court’s ruling earlier this year when it held that states could ban gender transition care^[2] for minors, in a case involving a Tennessee law. She questioned why the court would give states deference in one scenario but not the other.

“It just seems odd to me that we might have a different result here,” Jackson said.

One recurring question that was raised is whether a ruling against Colorado would also limit the potential for conservative states enacting what conservative Justice Neil Gorsuch called “mirror-image” laws that would ban therapy that encourages youth to embrace their gender identity or sexual orientation.

“Can a state pick a side?” Justice Amy Coney Barrett, another conservative, asked.

Hashim Mooppan, representing the Trump administration in support of the challengers, said the First Amendment would bar both types of laws.

Referencing the ruling earlier this year, he noted that under Colorado’s legal theory, Tennessee could have banned gender-affirming talk therapy as well as treatments like puberty blockers and hormones that were at issue in that case.

“We think that’s a strong reason to support our position,” Mooppan said.

The Supreme Court has, in major cases, backed LGBTQ rights, legalizing same-sex marriage in 2015 and ruling five years later that a federal law barring employment discrimination applies to both gay and transgender people.

But in another line of cases, the court has backed free speech and religious expression rights when they conflict with anti-discrimination laws aimed at protecting LGBTQ people.

The court backed a religious rights challenge^[3] this year to a Maryland school district’s policy of featuring LGBTQ-themed books in elementary schools.

Colorado Attorney General Phil Weiser, a Democrat, said in court papers that a ruling against the state would imperil not just conversion therapy bans but also other health care treatments that experts say are unsafe or ineffective.

Chiles, represented by the conservative Christian group Alliance Defending Freedom, countered in her court papers that therapy is “vital speech that helps young people better understand themselves.”

The state is seeking to “control what those kids believe about themselves and who they can become,” the lawyers said.

The court might not issue a definitive ruling on conversion therapy bans; it could focus more narrowly on whether lower courts that upheld the ban conducted the correct legal analysis.

If the law infringes on speech, it must be given a closer look under the First Amendment, a form of review known as “strict scrutiny,” which the justices could ask lower courts to do instead of doing it themselves. Under that approach, judges consider whether a government action that infringes on free speech serves a compelling interest and was “narrowly tailored” to meet that goal.

The Trump administration filed a brief urging the court to find that the law does burden speech while also saying a ruling in favor of Chiles would not upend state regulations in other areas.