In Chiles v. Salazar, the Supreme Court ruled on March 31 that Colorado’s law prohibiting conversion therapy for minors is unconstitutional. Conversion therapy is the process of trying to change someone’s orientation or gender identity via faith based intervention, medical interventions, or psychotherapy. Psychotherapy, or Talk Therapy, is what this case revolved around.
The court’s conservative majority was joined by liberal justices Elena Kagan and Sonia Sotomayor. Ketanji Brown Jackson was the sole dissenter.
This ruling was understandably controversial; most psychologists, therapists and doctors agree that such therapies – often forced on vulnerable patients – are ineffective and dangerous. More than that, this ruling represents an uncomfortable reality about the justice system: the legally “correct” outcome is not always the one that may seem most reasonable. A law that prevents dangerous treatments, but is unconstitutional, such as this one, embodies that.
This case dealt specifically with “Talk Therapy.” The petitioner, Kaley Chiles, did not object to the ban on physical interventions, that include shock therapy and starvation. Chiles, a licensed mental health professional, was banned from advising youth to “change their sexual orientation” if it was causing them stress. The intent behind this law was medically sound, but Chiles believed that regulating what she can and cannot say in a therapy session violates her First Amendment rights.
The Supreme Court found that it did, in fact, violate her right to free speech to regulate what she said in talk therapy sessions. Justice Neil Gorsuch, who authored the opinion of the court, wrote: “the spoken word is perhaps the quintessential form of protected speech.” Under the Colorado law, Chiles was “permitted to speak in ways that encourage a client” but prohibited her from speaking in a way that would help a client “realign” his identities.
Even if the law is well-intentioned, the language of the law is constitutionally problematic. Specifically, it encourages one viewpoint of affirming a client’s identity and prohibits the other. Kagan cited the absoluteness of the language as a reason for it to be ruled unconstitutional, adding that a “content-based” law would be a legally different argument. While still scrutinized, content-based laws would regulate what one is allowed to speak about. It would be constitutional if the state could establish why it is necessary.
Now, opponents of the ruling would argue that it puts the public at risk. Jackson argued in her dissent that states have been given the right to regulate medical procedures and that there are exceptions when regulating the medical field.” In the past, professional speech has been considered somewhat different from standard free expression: exactly the point Jackson argues would redeem this case.
However, the exact ruling in this case does not cause as much harm as some may fear. It does not allow harmful physical treatments or absolve therapists from responsibility, and prevents conservative legislatures from passing laws that would regulate affirming speech – when therapists help patients discover themselves and find their personal gender identity.
Importantly, this case does not overturn the ban on physical treatments. Chiles herself specifically described those interventions as “long abandoned, aversive” practices. This ruling also means that while states cannot regulate what a therapist says, they could still ban a therapist from using psychotherapy in a way that “converts” a client’s identity against their will.
Secondly, this ruling does not absolve a therapist from responsibility should their treatment cause a patient harm. This opinion does not declare immunity. Other First Amendment cases, such as United States v. Alvarez, have found that false speech is free speech. However, it does not remove responsibility for harm caused. Alvarez ruled that a law regulating speech is unconstitutional, but if the speech causes harm, it can be punished under other statutes, such as fraud or perjury. From this and existing malpractice statutes, it could reasonably be argued that a therapist still has a duty of care to patients.
Should a therapist establish a therapist-patient relationship, the therapist fails to care within professional standards (which could include providing a minor with harmful conversion treatments), and it can be established that the patient suffered as a direct result of that breach, the therapist who prescribed it can be held responsible. The Chiles decision does not undermine that.
This ruling also protects the care therapists can provide. In her concurring opinion, Kagan wrote about a hypothetical “mirrored” law, if a state made a law that prohibited therapists from affirming a minor’s identity. If the court ruled to affirm Colorado’s law, this mirrored law would also be constitutional.
This would be, without question, just as controversial, and arguably more harmful. Any ruling the court comes to on divisive social issues will always be controversial. In this case, applying the law created controversy, but the law it struck down simply was unconstitutional, and deserved its demise. Ultimately, this ruling preserves the First Amendment, still forces the highest standard of care and preserves the integrity of the Constitution and the court.
