Supreme Court & 'Conversion Therapy': What's Next?

The Supreme Court’s 8–1 decision in Chiles v. Salazar is not the end of the road for the battle over bans on the discredited practice of “conversion therapy.” The ruling significantly alters how lower courts must evaluate Colorado’s counseling law, potentially leading to challenges to similar legislation in other states.

A Shift in Legal Focus

The Supreme Court rejected the lower court’s initial framing of the case as a medical or healthcare dispute. Instead, the court determined that Colorado’s law regulates speech, not medical procedures, because the plaintiff, Chiles, only engaged in “talk therapy.” This distinction is crucial, as it necessitates a reevaluation of the law under First Amendment principles.

First Amendment Implications

As Beth Parlato, senior legal counsel at Independent Women, explained, “There was no medical procedure, medical surgery. This was strictly a narrow ruling on First Amendment violation of clear viewpoint discrimination.” The ruling mandates that lower courts treat the case as a freedom-of-speech issue, a point Parlato believes will be pivotal. “It’s basically telling you what you can say and how to counsel,” she stated. “You can’t do that. We can’t all be told our beliefs.”

Colorado's Law and its Imbalance

Under Colorado’s law, counselors were permitted to affirm a child’s claimed gender identity or same-sex attraction, but were prohibited from encouraging the child to embrace their biological sex or explore opposite-sex attraction. Parlato emphasized this imbalance as a key factor in the Supreme Court’s decision. “When the state censors speech, and basically is telling the counselors that you have to only affirm a child’s gender identity, you cannot do anything else but affirm,” she said, “There’s no other counseling that can happen.”

Dissent and Broader Impact

Justice Ketanji Brown Jackson authored the lone dissent, echoing the lower court’s characterization of the case as a medical matter. However, Parlato dismissed this argument, stating, “Her two colleagues that generally would side with her, Justice Sotomayor and Kagan, they actually sided with the majority.”

Similar counseling restrictions exist in 25 other states and the District of Columbia. Parlato anticipates the Supreme Court’s guidance will prompt challenges to these laws, requiring courts to assess them as speech bans rather than medical regulations. She also believes the ruling signals a broader reassessment of gender-affirming care for minors.

A Return to “Reality”

Parlato praised the Supreme Court’s decision as a return to “biological reality, in truth and common sense.” She cited studies indicating that approximately 90% of children experiencing gender confusion or dysphoria eventually grow out of it. Parlato also connected the ruling to a lawsuit against a surgeon and psychologist for facilitating a minor’s double mastectomy, suggesting a growing legal and cultural reconsideration of such procedures. “We’re going back to common sense,” she concluded. “We’re going back to reality, which is what we need to do to protect our children.”