SCOTUS Is Poised to Rule Against Colorado’s Ban on So-called Conversion Therapy For Minors 

On October 7, 2025, the Supreme Court heard oral arguments in Chiles v. Salazar, a case challenging Colorado’s law, which subjects mental health providers to professional discipline should he attempt to help a minor address their sexual orientation or gender identity in any other way other than affirming the gay or transgender identity. Legal observers, including mainstream media, predict the Court will strike down the law. A 7-2 decision appears likely, with Justices Jackson and Sotomayor dissenting.

The Colorado Law

The case centers on Colorado’s 2019 law restricting therapeutic practice with minors. Colorado Revised Statute §12-245-202 defines “conversion therapy” as:

any practice or treatment by a licensee, registrant, or certificate holder that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

“Conversion therapy” does not include practices or treatments that provide:

(I) Acceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development, . . . , as long as the counseling does not seek to change sexual orientation or gender identity; or

(II) Assistance to a person undergoing gender transition.

The law permits counseling in only one direction —the counselor may approve of a child’s gender confusion and encourage and assist with medical transition but is prohibited from using any approach that may help that child become comfortable with his sexed body.

History of Therapeutic Speech Restriction Cases

Colorado was not the first state to restrict the speech of mental health providers who want to help children to accept their sex. California enacted the first such law in 2012, the same year it passed the FAIR Act requiring all schools to include instruction on transgenderism. Seemingly, the goal was to create “transgender children” and ensure that mental health providers cannot help any child who might wish to unchain himself from that identity. Twenty-five states followed.

First Amendment challenges to these laws have produced inconsistent appellate decisions. Some courts created a new category of “professional speech” subject to greater government regulation (i.e., with less First Amendment protection) than “ordinary” speech. In 2014, the Third Circuit held that therapeutic speech is still speech (rather than conduct), but that it could nonetheless be subject to greater restriction as “professional speech.” The Supreme Court declined to review that decision.

Four years later, in Tingley v. Ferguson, the Ninth Circuit held that Washington State could prohibit mental health providers from offering therapy to help minors address unwanted same-sex attraction, characterizing talk therapy as “conduct” because it is medical treatment. Moreover, it found it was “professional speech,” which the court said is entitled to far less robust protection under the First Amendment. (Tingleycontradicted the Ninth Circuit previous ruling in 2002 in Conant v. Walters, which held that prohibiting medical providers from discussing the benefits of marijuana as a treatment even though it was illegal at the time violated the First Amendment. In Conant, the court made clear that “[b]eing a member of a regulated profession does not … result in a surrender of First Amendment rights,” and that “professional speech may be entitled to ‘the strongest protection our Constitution has to offer.’”)

Shortly after Tingley, the Supreme Court addressed the “professional speech” distinction in an unrelated case, NIFLA v. Becerra. The NIFLA court held that the full force of the First Amendment applies to professional speech, though the government may regulate such speech when those regulations are incidental to conduct. Despite this precedent casting doubt on Tingley, the Ninth Circuit reaffirmed its position in post-NIFLA appeal that talk therapy could be restricted because it was medical treatment. The Supreme Court declined to hear the appeal, but Justices Kavanaugh and Thomas dissented from the denial of certiorari, signaling that they would likely find a law muzzling a therapist unconstitutional.

Meanwhile, the Eleventh Circuit reached the opposite conclusion from the Ninth Circuit in Otto v. City of Boca Raton, striking down a local ordinance restricting so-called conversion therapy. The Otto court declared: “If speaking to clients is not speech, the world is truly upside down. These ordinances sanction speech directly, not incidentally—the only ‘conduct’ at issue is speech.”

The circuit split made it all but inevitable that the Supreme Court would finally address professional speech restrictions in the context of “conversion therapy” bans. Kaley Chiles, a licensed therapist, had already filed suit in Colorado challenging its ban, which brings us to today.

The LGB Dilemma

Neither Our Duty-USA nor Genspect support therapeutic interventions aimed at changing an individual’s sexual orientation, nor do we endorse any type of coercive, physically harmful, or psychologically damaging techniques employing guilt or shame to alter same-sex attraction or gender identity. Both organizations acknowledge that same-sex attraction is very often innate and unchangeable, whereas identity is malleable, as articulated in Our Duty’s amicus brief in Chiles.

The conflation of sexual orientation with gender identity in these laws is deeply ironic, given that transgenderism actually serves, in many cases, as an extraordinarily barbaric way of converting gay kids to appear as straight ones. Same-sex attracted individuals are disproportionately represented among those who identify as trans, and then often end up undergoing severe medical procedures with lifelong complications to attempt to mimic the opposite sex. Consequently, a ruling that ban therapists from exploring options other than transition will end up causing untold harm to gay and lesbian minors.

Understanding the Standard of Review

The outcome in Chiles hinges on which constitutional standard of review applies.

Strict scrutiny applies when a law infringes upon a fundamental constitutional right, such as free speech. Under strict scrutiny, the government must demonstrate that the law is narrowly tailored to achieve a compelling governmental interest using the least restrictive means possible. Few laws survive this demanding test.

Rational basis review, by contrast, requires only that a law be rationally related to a legitimate government interest. Laws regulating economic activity or making classifications based on age typically receive rational basis review. The government almost always prevails under this deferential standard.

Chiles argues that strict scrutiny applies because Colorado’s law restricts the content of her speech with clients. Colorado contends that rational basis review applies because the state merely regulates professional conduct, characterizing therapeutic speech as medical treatment (or conduct) rather than protected expression.

Analysis of the Oral Arguments

The oral arguments suggested a difficult day for Colorado. Solicitor General Shannon Stevenson faced tough questioning from most justices, with only Justice Sotomayor offering a lifeline. While Stevenson is clearly a skilled attorney, she struggled to overcome unfavorable facts and adverse legal precedent.

Justice Thomas opened the questioning by addressing a procedural argument advanced by the Solicitor General. Anticipating an unfavorable ruling, Stevenson argued for an extremely narrow interpretation of the statute, contending that the law prohibits only therapy explicitly aimed at changing a client’s sexual orientation or gender identity. Under this reading, counseling designed to help clients change behaviors or reduce unwanted sexual or romantic attractions would remain permissible, provided the ultimate goal was not to change orientation or identity itself. Stevenson argued that the activities – talk therapy to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction – could be performed so long as the therapist’s goal was not to change sexual orientation or the minor’s then-current “gender identity.”

With the exception of Justice Sotomayor, who attempted to support this interpretation, the justices appeared skeptical, particularly Justice Alito. This narrow reading by Colorado was designed to bolster a claim that Chiles faces no imminent harm and therefore lacks standing to challenge the law.

Sotomayor seemed to be searching desperately for a procedural ground to avoid reaching the First Amendment question. She emphasized that the law had not been enforced during the six years since enactment, undermining Chiles’ claim of imminent injury necessary for standing. However, Chiles’ counsel effectively responded that Chiles seeks to counsel children toward acceptance of their biological sex—counseling that even under Stevenson’s narrow interpretation would be prohibited—and that complaints have recently been filed against Chiles with investigations pending. (The likely culprits of the complaints are transgender activists who may have accidently ended up helping their adversary win in this case.) Justice Sotomayor also unsuccessfully pressed Stevenson to disavow the portions of the statute applicable to Chiles’ intended counseling. Ultimately, Sotomayor conceded that Chiles had established standing.

The central debate focused on the distinction between speech—which is protected by the First Amendment—and conduct—which is not. Justice Kagan offered a thoughtful question to Chiles’ counsel, asking him to explain when speech constitutes the sole form of treatment versus when the treatment combines speech and conduct. Justice Barrett raised the issue of medical malpractice to spotlight that therapists do not have carte blanche to provide therapy that harms patients. In other words, there are other ways of protecting patients from therapists’ harmful words besides statutory bans.

Justice Sotomayor made a notable misstep when she analogized therapy for gender dysphoria to treatment for anorexia. This comparison inadvertently echoed a common argument from critics of sex-rejecting interventions. Just as therapists would not affirm an anorexic patient’s distorted self-perception, affirming that she is indeed fat and encouraging her to starve herself, they should not affirm a child’s maladaptive belief that he is the opposite sex. This opened the door for Chiles’ counsel to discuss the harms of affirming a child’s rejection of his sex. Justice Sotomayor quickly interrupted before he could elaborate on these concerns.

Sotomayor continued to look for ways to rule in favor of Colorado, or at least remand the case back to the trial court. She shifted her questioning to Colorado’s evidence regarding harm to children caused by so-called “conversion therapy.” The Department of Justice attorney, who had intervened in the case, carefully identified the methodological flaws in the studies Colorado cited—deficiencies that Chiles’ counsel had previously highlighted. The Solicitor General countered that Colorado could provide much more evidence in support of the harms.

Justice Jackson’s questioning also showed a bias toward ruling in favor of Colorado, consistently trying to steer the court towards a finding that therapeutic speech is conduct rather than pure speech. But it is unlikely that the argument that Colorado may regulate counseling consisting entirely of speech because “the words are used to deliver medical care” resonated with the majority of the court.

Notably, Justice Alito challenged the Solicitor General’s reliance on the medical consensus and standards of care as the overriding factor in Colorado’s law. He pointed to historical examples where medical consensus proved tragically wrong, including the eugenics movement and the widespread institutionalization of children with Down’s Syndrome. His questions clearly implied that neither consensus nor established standards of care are infallible, suggesting that he probably also thinks hormonally and surgically altering children because they are deluded about their sex may eventually also be viewed as a shameful and scandalous practice.

The justices engaged in substantial questioning concerning “mirror image” laws—hypothetical statutes prohibitingtherapists from affirming a minor’s transgender identity (rather than requiring them to). Both Chiles’ counsel and the Department of Justice agreed that such laws would also be subject to strict scrutiny, unwavering from their argument that speech is speech, and restrictions based upon viewpoint or the content of the words need to be tied to a compelling state interest.

The Solicitor General, however, argued that the applicable standard of review depends on prevailing standards of care. Under her framework, if the medical standard of care establishes that “gender affirming care” harms children, a law prohibiting such care would also need only satisfy rational basis review. When pressed about competing views within the medical community, the Solicitor General deflected, asserting that Chiles had presented no evidence of treatment efficacy. The Solicitor’s contention that the standard of review depends on medical consensus lacks merit. The existence of medical consensus—which notably does not exist regarding medical interventions for minors who adopt transgender identities, and which, arguably, historically was “watchful waiting” and non-affirmation—has never been what determines whether rational basis or strict scrutiny applies. Instead, the applicable standard of review depends on the nature of the constitutional right at issue and whether the government regulation is content-based or content-neutral. Moreover, the Solicitor General’s position essentially rehashed arguments about restricting professional speech that the Supreme Court rejected in its 2018 NIFLA v. Becerra decision.

Should the Supreme Court rule that Colorado’s law prohibiting a licensed health provider is not constitutional, that ruling will extend to all states with such laws. This will, thankfully, provide a pathway for more therapists to conduct exploratory therapy with minors, without fear of losing their licenses, to help them understand the reasons for their newly adopted identities, rather than helping to push them down the road of lifelong medicalization and sterilization.

Erin Friday, a California attorney, actively champions parental rights, particularly regarding gender ideology’s influence in schools and medical practices. Driven by personal experience, she advocates vigorously for children’s safety and parental involvement. Erin serves as a Genspect USA board member, highlighting the necessity of cautious, evidence-based youth care. Her advocacy empowers families nationwide, promoting transparency, informed consent, and child-focused policies.

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