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In House Bill 19-1129, the State of Colorado banned the use of “conversion therapy with a patient who is under eighteen years of age” by licensed medical professionals. According to the law, “conversion therapy” is “any practice by [certain licensed professionals] that attempts or purports to change an individual’s sexual orientation or gender expression or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” Under the law, a licensed mental health professional that provides “conversion therapy” would be subject to disciplinary review and a possible fine.
Kaley Chiles is a mental health professional whose licensure is governed by the Colorado licensing statute. Although she was never punished under the Colorado law, she requested an injunction in Federal Court asking for an order that the law could not be enforced against her for providing “talk therapy” designed to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with their bodies.” Chiles v Salazar, 607 US ___, p. 2. Although she says that “does not try to persuade her clients to change their attractions, behavior, or identity”, she sees her practice as a reflection of her “Christian faith.” Id. at 2; Petition for Writ of Certiorari, p. 5. She argued that, because the only treatment that she provides her clients is “talk therapy”, it would violate her right to free speech to have the licensing statute enforced against her. Ultimately, her case ended up in the United States Supreme Court.
Majority Opinion:
In an opinion issued on March 31, 2026, Justice Gorsuch wrote for the majority of the Court, agreeing with Ms. Chiles that the Colorado law could not be used to regulate what a therapist may say to a patient during a session. According to Gorsuch, the “Court has recognized a few historic and traditional categories of expression . . . where content-based restrictions on speech will not automatically trigger strict scrutiny—categories that include fraud, defamation, and fighting words.” Chiles, p. 9. The majority (eight of the nine Justices on the Court) held that Colorado’s licensing statute did not fall into any of these exceptions. Id. at 11. In so holding, the Court rejected the argument that “the law does not regulate expressions at all, only conduct, treatment, or a therapeutic modality.” Id. at 12. According to the Court, Chiles’s speech does not become conduct . . . just because it can also be described as a ‘treatment,’ a ‘therapeutic modality,” or anything else.” Id. at 12. The Court described this as merely a “word game.” Id.
The majority also rejected the idea that medical licensing represents the type of law associated with the historical limitations on free speech. “First,” the Court said, “the State has not presented persuasive evidence that its law is part of a historical tradition.” The Court observed that that “the very first state ‘counselor-licensure bill’ was adopted only in 1976.” Id. at 20. “Second,” the Court continued, “licensing laws have traditionally addressed what qualifications an individual must possess before practicing a particular profession.” Id. at 20. Thus, the Court held that the law’s limitations on a licensed counselor’s professional speech violates a counselor’s First Amendment rights to freedom of speech. The Court observed, “Licensed professionals have a host of good-faith disagreements about the prudence and ethics of various practices in their fields.” Id. at 22. According to the Court, the Colorado law sought to “transform[] prevailing opinion into enforced conformity.”
Dissent:
In her dissent, Justice Jackson began, “There is no right to practice medicine which is not subordinate to the police power of the States.” Chiles, (Jackson, J, dissenting), p. 1. She continued, “And medical professionals do not, generally speaking, have a right to use the Constitution as a weapon allowing them rigorously to control the content of reasonable conditions that a State imposes on licensed healthcare providers for the protection of its residents.” Id. at 2. Turning her attention to Colorado’s ban on professionally sanctioned “conversion therapy”, Jackson observed, “Not only is conversion therapy ineffective, former participants of conversion therapy report that it causes lasting psychological harm.” Id. at 4. She noted that the harm is particularly significant when conversion therapy is directed at minors. Id. at 5. Therefore, according to Jackson, Colorado’s prohibition on conversion therapy by licensed professionals accomplishes the same role typically associated with licensing statutes and regulations: “First Amendment principles are not offended when lesser scrutiny is applied to a state law regulating medical treatments in a manner that incidentally restricts a provider’s professional medical speech.” Id. at 8.
According to Jackson, even though the “conversion therapy” ban implicates a professional’s speech, these kinds of restrictions are not unheard of:
“Within the confines of the professional-patient relationship, treatment-related “truths” are a given—they are set by licensing and malpractice standards, and it is not uncommon that such regulation incidentally restricts provider speech. Moreover, regulation of the practice of medicine is pervasively and unavoidably viewpoint based. The majority and the concurrence both resist this: They relentlessly deride Colorado for engaging in “viewpoint discrimination” by banning conversion therapy but permitting affirming care. But context makes that point ring hollow. When a State establishes a standard of care, or punishes a doctor for providing care outside of that standard, it necessarily limits what medical professionals can say and do on the basis of viewpoint.” Id. at 20.
For example, she said, a State “may . . . prohibit a doctor from encouraging a patient to commit suicide, or a dietician from telling an anorexic patient to eat less. Likewise, no one would bat an eye if a State required its doctors to discourage, but not encourage, smoking tobacco.” Id. at 21. Similarly, Jackson points out “Colorado’s clear aim is enforcement of a standard of care that is indisputably applicable to the State’s licensed healthcare professional.”
Finally, Justice Jackson disputed the majority’s contention that licensing standards are not historically rooted. “Medical licensing began as early as 1639, before this country was founded.” Id. at 27. Though many states deregulated medical licensing in the 19th Century, “[t]oday, every State has a medical-licensing scheme.” Id. at 26-27. Jackson expressed her concern that the Court’s decision “might make speech-only therapies and other medical treatments involving practitioner speech effectively unregulateable. . . ., [s]o, to put it bluntly, the Court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers.”
Conclusion:
Chiles presents an interesting discussion about the role of state government in regulating professional licensing when the professional conduct at issue consists primarily, or solely, of spoken words between a professional and a client. The majority concluded, at least under the circumstances of the case before it, that a professional’s right to free speech outweighs the State’s interest in ensuring that the services rendered comport with the prevailing standards. The counter argument as presented by Justice Jackson in dissent would allow States to enforce professional standards of care, even when doing so would limit a professional’s right to free expression. For now, the former is controlling law. What the future holds for “conversion therapy” or other controversial forms of professional speech is anybody’s guess.