Once Framed as ‘Free Speech,' Colorado’s Conversion Therapy Ban Was Destined to Fall

The Supreme Court majority concluded there is no separate category of ‘professional speech’ that receives less constitutional protection

Photo by Jon Tyson on Unsplash

The Supreme Court’s decision this week in Chiles v. Salazar is about far more than conversion therapy. It redraws the line between what the government can regulate and what it must leave alone, and it does so in a way that will reshape how law treats speech in medicine, counseling and other professional settings.

The case also reflects a broader shift in how these disputes reach the court. For years, conflicts involving sexuality and conscience were framed as questions of religious freedom. That is no longer how they arrive. Chiles came as a free speech case.

But even then, the more important development is not simply how the case was argued; it is how the court chose to understand what was being regulated.

Kaley Chiles, a licensed counselor in Colorado, challenged a state law that prohibits therapists from engaging in “conversion therapy” with minors, reflected in professional efforts to change a client’s sexual orientation or gender identity.

The law drew a line. It prohibited counseling that seeks to change sexual orientation, while allowing counseling that affirms identity and supports exploration. Colorado defended that line as a matter of public health, pointing to a broad medical consensus that conversion therapy is ineffective and associated with depression, anxiety and increased risk of suicide.

Justice Ketanji Brown Jackson’s dissent takes that evidence seriously and treats it as the heart of the case. In her view, Colorado was doing what states have long done. It was regulating a form of treatment that the medical profession has concluded is harmful, just as states regulate drugs, procedures and standards of care more generally. The fact that this particular treatment is delivered through words, she argued, should not change the analysis.

Her core claim is a careful doctrinal one: There is a meaningful difference between a state that targets speech because of the ideas it expresses and a state that restricts speech only incidentally because it is regulating a medical treatment. Prior Supreme Court decisions, she argued, recognized exactly that distinction and called for less demanding constitutional scrutiny when a state is doing the latter — that is, when the speech restriction is a byproduct of regulating care, not an attempt to silence a point of view.

Eight other justices saw the case differently. And that difference determined everything that followed.

The Supreme Court did not deny that Colorado had evidence or that it was acting with protective aims. It said those should not be relevant considerations once the law was understood as regulating speech.

Chiles provides only talk therapy. She does not prescribe medication or perform procedures. She speaks. From that premise, the court drew a categorical conclusion: If what she does is speech, then what the state is effectively regulating is speech, whatever label the state uses.

That move is not just descriptive. It is decisive.

Once the case is placed in the domain of speech, the governing rules change. The court is then able to ask not whether Colorado was regulating a harmful practice but whether it was taking sides in a debate.

And on that question, the answer was straightforward: The law permits a therapist to affirm a minor’s identity, but forbids a therapist from encouraging change. It allows one perspective and prohibits the other. The court treated that as textbook viewpoint discrimination, the most disfavored form of speech regulation under the First Amendment.

At that point, the case was effectively over. Once a law is classified as viewpoint discriminatory, the government’s evidence, however substantial, carries far less weight. The question is no longer whether the state has good reasons; it is whether the state has chosen a side.

Colorado argued that it was regulating professional conduct. The lower courts agreed. The Supreme Court majority rejected that framing outright. From this view, calling something a treatment or a therapeutic method does not change what it is.

The First Amendment, the court said, cannot be avoided by labeling speech as conduct. Nor does the fact that the speaker is a licensed professional diminish constitutional protection. The court reiterated that there is no separate category of “professional speech” that receives lesser protection.

Thus, at the same time litigants have increasingly brought these cases as speech claims rather than religious ones, the court has become more willing to accept that framing and to go further by treating professional interactions themselves as speech. The first shift is strategic. The second is doctrinal. Together, they are reshaping the law.

The immediate case is about conversion therapy. The broader shift is about something larger.

The consequences are significant. A neutral and generally applicable law like Colorado’s would likely survive a religious freedom challenge under existing doctrine. Treated as a speech restriction, the same law triggers the most demanding form of constitutional review. And when that review is driven by a finding of viewpoint discrimination, the outcome is rarely in doubt.

The implications extend well beyond this case. Much of modern health care is delivered through conversation. Addiction counseling, eating disorder treatment, suicide prevention and end-of-life care all depend on words rather than instruments or prescriptions. States have long regulated these practices based on evidence about what helps and what harms.

After Chiles, those regulations rest on less certain ground. Any rule that permits some therapeutic messages while forbidding others risks being characterized as taking sides. And laws that take sides face a constitutional standard that most cannot satisfy.

The majority acknowledges some limits but does not define them. Justice Elena Kagan, joined by Justice Sonia Sotomayor, points to a possible path forward. A law that restricts clinical speech without favoring one viewpoint over another might survive constitutional challenge. But that distinction is easier to state than to apply. In a therapeutic setting where treatment often consists of conversation directed toward particular ends, separating content from viewpoint is not straightforward.

Jackson warns of the consequences. Rules requiring providers to act in patients’ best interests, to avoid cruel care and to meet basic standards of competence all shape what professionals say, and all could now face challenge. The majority does not provide a clear answer.

The First Amendment now reaches into spaces it has not occupied before.

The immediate case is about conversion therapy. The broader shift is about something larger. The debate is no longer being fought on the terrain of religion or public health. It is being fought on the terrain of speech. And on that terrain, the balance of power shifts.

Chiles follows a line of recent decisions in which the court has used the First Amendment to reach outcomes that might once have required a harder constitutional fight. This includes a 2023 case in which the court resolved a business owner’s religious objection to serving gay customers entirely through speech doctrine rather than religious freedom principles.

What is new in Chiles is that this logic has now moved inside the clinic. It applies not to a business owner speaking to the public but to a licensed professional speaking to a patient in a therapeutic relationship. That extension matters.

States that seek to regulate what licensed professionals say to patients will now have to navigate a constitutional landscape that has shifted beneath them. Laws that favor one therapeutic message over another will face serious obstacles. Kagan’s concurrence suggests a narrower path may exist, but no one yet knows how far it runs or whether legislatures can successfully walk it.

What is clear is that the First Amendment now reaches into spaces it has not occupied before. The cost of that expansion will be measured, case by case, in the states’ diminished capacity to directly regulate the care of their citizens.

This piece was previously published at Deseret News.