On Tuesday, October 7—the second day of its new Term—the Supreme Court will hear oral argument in Chiles v. Salazar. You’re likely to hear a lot of confusing rhetoric about the case, so I’ll briefly explain here what is at stake.
1. The case concerns a Colorado law that prohibits mental-health professionals from providing counseling to an individual under the age of 18 that “attempts or purports to change an individual’s sexual orientation or gender identity.” The law allows counseling that aims to affirm the individual’s sexual orientation or gender identity. The issue in the case is whether the law’s discrimination on the basis of viewpoint must satisfy heightened scrutiny under the Free Speech Clause of the First Amendment or instead—as a Tenth Circuit panel majority ruled—is subject only to very deferential rational-basis review.
2. The law uses the term “conversion therapy” to cover the counseling that it prohibits. In using that term, it draws on the opprobrium that term earned when it consisted of aversive techniques that (as the district court summed things up) included treatments that “induc[e] nausea, vomiting, or paralysis; providing electric shocks; or having the individual snap an elastic band around the wrist when the individual bec[omes] aroused to same-sex erotic images or thoughts.”
But the term, as defined by the Colorado law, is broad enough to include therapy that consists entirely of ordinary talking. And that’s exactly what this case involves.
3. The plaintiff, Kaley Chiles, is licensed as a professional counselor in Colorado. Ms. Chiles is a practicing Christian whose clients are seeking counseling, often from a Christian perspective, for issues that include same-sex attraction and gender-identity confusion. As the Tenth Circuit majority acknowledged, Ms. Chiles “uses only talk therapy in her counseling practice.”
I’ll note that the Tenth Circuit majority repeatedly uses the term “talk therapy” to refer to Ms. Chiles’s counseling. I don’t see how anyone can fairly object to this term.
4. In ruling against Ms. Chiles, the Tenth Circuit majority relied on the proposition that “the First Amendment does not prevent restrictions directed at conduct from imposing incidental burdens on speech.” (Emphasis added; ellipsis eliminated.) The majority contends that the Supreme Court’s ruling in NIFLA v. Becerra (2018), which invalidated a notice requirement that a California law imposed on crisis pregnancy centers, somehow supports it. It invokes the Court’s statement that “States may regulate professional conduct, even though that conduct incidentally involves speech.”
But Ms. Chiles’s talk therapy isn’t “conduct that incidentally involves speech.” It is speech. As Judge Harris Hartz stated in dissent, “there is no applicable Supreme Court authority permitting regulation to escape rigorous scrutiny when, as here, it is directed at speech because of its point of view.” On the contrary, the Court’s ruling in Holder v. Humanitarian Law Project (2010) requires strict scrutiny.
5. Imagine for a moment that a state enacted a law that was the polar opposite of Colorado’s law—a law, that is, that forbade counseling that aimed to affirm a person’s sexual orientation or gender identity. It’s farfetched that any court would hold that such a law is subject only to rational-basis review. Why should the result be any different here?