The Gay Conversion Therapy Case and Its Discontents 

On October 7, the conservative majority of the Supreme Court appeared eager to set back Colorado’s LGBTQ-affirming legislative legacy—and on gay and transgender rights more broadly. During oral arguments in Chiles v. Salazar, the Court’s conservative justices raised concerns about the state’s statutory ban on conversion or “reparative” therapy, on the books since 1999, and its apparent threat to Christianity-informed free speech. 

On the evidence of the Justices’ questions, a ruling against the Colorado statute seems likely. That setback would follow the Court’s anti-LGBTQ decisions from last term: Skrmetti v. Tennessee (2025), which supported bans on gender-affirming health care, and Mahmoud v. Taylor (2025), which allowed religion-compelled parents to opt their children out of public school story hours featuring LGBTQ-affirming books.  

“Conversion therapy” attempts to alter a person’s sexual orientation or gender identity so that they comply with anti-LGBTQ ideological commitments. As a therapeutic practice, mainstream medical professionals have widely rejected it—and it has been outlawed in over 23 states. Mental health professional organizations agree that identifying as LGBTQ is not a mental disorder, and that attempts to change someone’s sexuality or gender identity are at best ineffective and at worst actively harmful to patients. The practice includes anything from “talk therapy” that treats LGBTQ individuals as in need of a “cure,” to electric shock or pharmaceutical interventions. These practices persist, largely underground, in defiance of current bans. 

Colorado’s law bans medical interventions that cast LGBTQ individuals as mentally ill. A former conversion-therapy client of Colorado’s Focus on Family described the ban as “guiding people to the best version of themselves” by nurturing practices that are “beneficial, healing, and can save lives” and outlawing “therapy where [the] only…outcome considered successful is harmful.” In other words, the practices prohibited by the ban are those focused on the singular goal of encouraging a client to reject their LGBTQ identity.   

Kaley Chiles, a counselor licensed by the state to treat addictions, argues that the Colorado law violated her First Amendment rights by outlawing her ability to counsel sexuality- and gender-questioning youth who are seeking Christianity-informed therapies to help them resist their same-sex sexual desires and their gender dysphoria.  

Colorado is no stranger to Supreme Court fights over LGBTQ rights. The state is, paradoxically, home to the most vociferous anti-LGBTQ movement leaders and the most progressive LGBTQ-affirming policies—making it ripe for contentious legal and political rifts. In Romer v. Evans (1996), the Court overturned a 1992 voter initiative that branded Colorado “the hate state.” The ballot measure, organized by the Colorado Citizens’ Commission, barred gays and lesbians from seeking any state or municipal legislative protections from sexuality-based discrimination.  

Colorado quickly shed its “hate state” identity by passing the bipartisan conversion therapy ban in 1999 and then updating its anti-discrimination measures in 2008 to include sexual orientation and gender identity. Yet almost ten years later, the state was back in Court—this time in a conflict with Christian wedding service providers. In a 2017 case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court sided with a Colorado baker’s claim that the state’s nondiscrimination laws violated his Christianity-informed expressive rights to refuse to bake a wedding cake for a gay couple’s upcoming nuptials. Six years later, in 303 Creative v. Elenis, a Christian wedding videographer blamed the state for “chilling” her desire to design wedding websites exclusively for heterosexual couples. Once again, the Court rebuked the state’s LGBTQ nondiscrimination laws in favor of Christian business owners who oppose marriage equality.  

Chiles raises parallel substantive questions about the double helix of free exercise and free speech. Does the conversion therapy ban impose similar harms to Christianity-informed free speech that the Court outlawed in Masterpiece Cakeshop and 303 Creative? 

Assuming Chiles has standing to sue (a subject of some disagreement), the Court will have to determine whether her claim should be reviewed under the highly demanding “strict scrutiny” test, and, if “strict scrutiny” is warranted, whether the Court should send the case back to the lower Court or render judgment now. Two lower federal courts agreed with the state that the ban regulates medical conduct rather than speech and thus should be reviewed under the forgiving “rational basis” standard, as are other laws regulating medical care.  

Under a rational basis review, the state only needs to provide a reasonable rationale for banning conversion therapy—one that can easily be justified within the state’s normal efforts to protect the health and welfare of its citizens. Under strict scrutiny–a standard of review used only when a fundamental right has been abridged or when a suspect or spurious social classification (such as race or religion) is targeted by the legislation–the state faces a much higher evidentiary burden. In the case of a ban on conversion therapy, they must present evidence that Chiles’s type of talk therapy harms children.  

If the Court agrees with Chiles’s request for strict scrutiny, it has two options: to decide the case under this higher standard of review immediately or to send it back to the lower courts, as is typical, with instructions to reevaluate the evidence under the more rigorous standard. Chiles requests that the Court decide immediately, as it did last term in Mahmoud v. Taylor (the case involving parental opt-outs for school-based story hours with LGBTQ-affirming books), to address the supposed “irreparable” and “ongoing harm” that legislation and pending litigation have caused Chiles and her potential clients.  

Speech v. Conduct 

At oral argument, Justice Ketanji Brown Jackson pressed James Campbell, Chiles’s lawyer, to explain how her therapy differs from the many other medical interventions the state can regulate, as the Court held last term when it affirmed Tennessee’s gender-affirming-care ban. While quizzing Campbell, Justice Jackson asked “it’s just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would be prescribing medication for that rather than talking to the client.” Cambell, however, argued that Chiles is engaging only in a “back-and-forth, one-on-one conversation [that] is a form of speech.” Talk therapy is speech, therefore, protected by the First Amendment. The medical interventions outlawed by Tennessee—puberty delaying medications, hormone replacement, and gender-affirming surgeries—are conducted. As such, Campbell argued that they do not fall within the First Amendment’s protections, while Chiles’s therapy does. 

If considered as pure speech, a ban on Chiles’s therapeutic methods would infringe on her fundamental rights and require review under strict scrutiny. Under this standard, Chiles argues, the state would need to demonstrate how talk-focused conversion therapy harms minors sufficiently to justify an otherwise unconstitutional restriction of free speech and exercise rights. According to this standard, Chiles contends that the statute would almost certainly fail. While they may have evidence that conversion therapy in general creates risks for young patients, as Chiles states, there is little empirical proof that talk-focused therapy, like the one she provides, causes any risks. An amicus brief from a professional organization supports the state’s position. It cites examples of dangers linked to different forms of conversion therapy, mainly because these therapies portray LGBTQ identities as abnormal.  

Standard of Care 

Oral arguments raised questions about the evidence that future courts might require as they are asked to review medical care. Colorado’s attorneys argued that the law follows “standard of care”—a legal term referring to the level of practice by professional practitioners–in the treatment of young people struggling with sexual and gender identity. Deviations from “standard of care,” argued the state, can be regulated or barred through legislation as a matter of ordinary state protections.  

Conservative justices argued differently. Justice Amy Coney Barrett questioned the meaning of “standard of care” when experts offered “competing strands” or when states disagree. Do states just “pick a side?” she asked. Justice Samuel Alito wondered what the role of the Court should be in accepting medical expertise, “when the medical consensus has been politicized” or “taken over by ideology.” These inquiries raise questions about the capacity for future Court cases to disregard “standard of care” and medical consensus.  

Justices on both sides of the ideological divide seemed to agree that a state cannot target therapists like Chiles who provide voluntary treatment to patients explicitly seeking to resist same-sex sexual attraction or to accept their gender dysphoria by embracing their birth-assigned gender. Justices Elena Kagan and Alito both contended that (as Kagan explained) “if a doctor says ‘I know you identify as gay and I’m going to help you accept that’, and another says ‘I know you identify as gay and I’m going to help you change that,’ and one of those is permissible and the other is not, that seems like viewpoint discrimination.”  

Interestingly, Chiles’s attorneys agreed that the argument would hold on “the flip side”—in cases where a state may want to ban gender- or sexuality-affirming care that is talk-based. Implying that, if Colorado’s law is determined unconstitutional in its application to talk therapy, conservatives may not be able to outlaw professional speech that affirms gender identity or sexuality—in the context of treatment and beyond. 

This raises questions—especially as conservative lawmakers, including President Donald Trump, seek to punish individuals for engaging in speech that criticizes ICE or Charlie Kirk, or promotes “woke” pedagogies. If Chiles wins, how will that precedent apply to LGBTQ-affirming or other targeted speech?  

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