In Counseling Case, the Supreme Court Sides with the First Amendment

W hen you can’t win the debate with words, you end the discussion with force.

Colorado officials have modeled this principle for the past 15 years. Don’t like religious views on marriage? Let’s try to drive believers like cake designer Jack Phillips and web designer Lorie Smith out of business. Think it’s backward to affirm men can’t be women? Let’s use criminal penalties to force businesses, including XX-XY Athletics, to say men are women. Deny that women deserve their own private spaces? Let’s force Christian summer camps to put boys into girls’ cabins and showers. Disagree that women can change their minds about terminating their pregnancy? Let’s ban nurses from helping women access abortion-reversal drugs.

I could keep submitting more examples, but you see the trend. Colorado is at war with the First Amendment. But like land wars in Asia, it’s hard to win crusades against the Constitution. Colorado has so far lost or given up in all of the above cases that are concluded, going 0–3 at the Supreme Court. That’s a lot of taxpayer dollars lit on fire.

This background puts the Supreme Court’s 8–1 decision in Chiles v. Salazar on Tuesday in context. Once again, Colorado didn’t like a particular viewpoint, and it passed a law banning licensed counselors from advising gender-confused kids to accept their bodies. Meanwhile, the law explicitly allowed counselors to promote the opposite view. So if a teenage girl is struggling with gender dysphoria and wants advice from a counselor to live like the girl she is, she can’t get it. But if a counselor wants to encourage that girl to get a double mastectomy or some other irreversible surgery to make her look like a boy (which she is not), full steam ahead.

Licensed counselor Kaley Chiles challenged this restriction on her counseling with the help of Alliance Defending Freedom, where I am a member of the legal team representing her, and Colorado defended it, saying words spoken in the counselor’s office should be treated like conduct — and thus more easily regulated. Just as the state can regulate doctors performing dangerous surgeries, the state reasoned, it should be able to regulate licensed counselors having voluntary conversations that are “dangerous.”

The Supreme Court made quick work of this defense in Chiles. It ruled that speech is still speech when spoken by professionals. That doesn’t mean professionals can’t be held accountable for harmful advice, it just means the government doesn’t have a blank check to regulate professionals’ speech. Instead, Colorado must justify censoring professionals just as it must justify censoring others. After all, licensed professionals give a lot of helpful advice. Imagine if the government could ban lawyers from advising clients about how to challenge unconstitutional laws. Getting a license to practice your profession doesn’t mean you lose your First Amendment license to speak the truth.

Colorado’s second defense fared just as poorly. It worried that counselors would give bad advice and cause kids to hurt themselves. Backed by the typical industry groups (the same groups that say “traditional masculinity is psychologically harmful”), Colorado pointed to a history of counselors using harmful tactics like shock therapy to get kids to change their behavior. Surely Colorado’s law is justified considering that?

But the Supreme Court wasn’t fooled here either. No one is denying that states can regulate harmful conduct, and sometimes even words, that actually cause harm in ways that reflect our history. Yet here, Chiles only wants to talk with those who want to hear. Colorado’s law went far beyond our tradition of laws like malpractice. And Colorado didn’t provide any proof — not a single study or any other evidence — that voluntary conversations affirming biological reality, the kind that Chiles wants to have with willing minors, cause harm to anyone.

That makes sense. About 90 percent of kids struggling with gender dysphoria before puberty eventually grow comfortable with their bodies. And scientific studies increasingly show the significant dangers posed to kids pushed to undergo body-rejecting drugs and surgeries. In fact, by censoring counselors like Chiles, Colorado is likely driving them to malpractice. Earlier this year, a New York jury found a psychologist guilty of malpractice who approved a double mastectomy for a 16-year-old girl. Just as during Covid-19, beware the officials peddling “trust the experts” to set aside common sense and the Constitution.

With all this background in mind, the Chiles v. Salazar decision was easy because it came down to trust. Whom do you trust to decide which conversations families can hear and what advice is best for them: Colorado officials or families themselves? After 15 years of ongoing censorship, Colorado officials have lost any benefit of the doubt. Let’s hope they finally learn their lesson.