WASHINGTON — In a blow to LGBTQ rights, the Supreme Court on Tuesday ruled that Colorado's ban on conversion therapy aimed at youths struggling with their sexual orientation or gender identity violates the free speech rights of a conservative Christian therapist.
The 8-1 decision in favor of therapist Kaley Chiles on her claim brought under the Constitution's First Amendment is likely to have national implications — more than 20 states have similar laws. It could also have an impact on other forms of medical treatment that involve speech.
Writing for the majority, Justice Neil Gorsuch said that "the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country."
Colorado’s law “does not just ban physical interventions,” Gorsuch wrote. It also “censors speech based on viewpoint.”
In deciding the case, the court embraced Chiles’ argument that the Colorado law banning conversion therapy regulates speech, not conduct, as Colorado had argued. As such, the measure is not like other health care regulations that focus on conduct, the court concluded. The case, decided on the global Transgender Day of Visibility, will now return to the lower courts.
"I hope this win for free speech will fuel a greater pursuit of truth," Chiles told reporters after the ruling. "Because of today's ruling, families will have more options and states won't be able to shut those options down," she added.
Colorado Attorney General Phil Weiser, a Democrat who defended the law in court, said in a statement the ruling was a "setback for Colorado's efforts to protect children and families from harmful and discredited mental health practices."
Conversion therapy, favored by some religious conservatives, seeks to encourage gay or lesbian minors to identify as heterosexual and for transgender children to identify as the gender assigned to them at birth. Colorado bans the practice for licensed therapists, not for religious entities or family members.
The practice is widely discredited by medical organizations, including the American Medical Association, the American Psychological Association and the American Academy of Pediatrics. Conversion therapy is ineffective, research has found, and can even be harmful, increasing a risk of suicide among people subjected to it.
Liberal Justice Ketanji Brown Jackson was the sole dissenter, taking the unusual step of reading a summary of her opinion in the courtroom. She focused on the distinction between speech and conduct.
"Under our precedents, bedrock First Amendment principles have far less salience when the speakers are medical professionals," Jackson wrote.
The ruling could have an impact on other forms of medical regulation, with Jackson saying the court could be "ushering in an era of unprofessional and unsafe medical care" where some forms of treatment are effectively free from regulation. She mentioned as an example what are known as "informed consent" regulations that require medical practitioners to ensure patients are aware of any potential risks before they undergo a treatment.
"The fallout could be catastrophic," she added.
Fellow liberal Justice Elena Kagan wrote a concurring opinion making it clear the Colorado law did implicate free speech rights, but so would what she called "mirror image" laws that could seek to ban therapy aimed at affirming a teen's gender identity.
"Once again, because the state has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward," she said, describing how courts would address such a measure.
Polly Crozier, director of family advocacy at GLAD Law, a group representing LGBTQ people, noted that the ruling “does not change the fact that conversion therapists who harm patients will still face legal consequences” via potential medical malpractice lawsuits.
“The stories of conversion therapy survivors are filled with heartbreaking examples of shattered family connections and separation from faith communities that once sustained them,” she added.
The Supreme Court has a 6-3 conservative majority that has frequently ruled in favor of Christian conservatives who bring free speech cases that touch upon their religious beliefs.
The ruling follows a similar 2018 decision in which the conservative majority backed a free speech challenge to a California law that requires anti-abortion pregnancy centers to notify clients about where abortion services can be obtained.
The Supreme Court has backed LGBTQ rights in the past, legalizing same-sex marriage in 2015 and ruling five years later that a federal law barring employment discrimination applies to both gay and transgender people.
But, in a separate string of cases, the court has embraced free speech and religious expression rights when they conflict with anti-discrimination laws aimed at protecting LGBTQ people.
Last year, for example, the court backed a religious rights challenge to a Maryland school district’s policy of featuring LGBTQ-themed books in elementary schools without providing an opt-out option for families.
