No, the Supreme Court Did Not Legalize Conversion Therapy

The Supreme Court did not endorse conversion therapy, nor did it strip states of their authority to regulate it.

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I am a man who loves other men. I believe everyone should be accepting of who they are and who others are, which is why it pains me to see the continued existence of conversion therapy in our society. Conversion therapy is a stain on the history of American healthcare, and states have an important role in prohibiting it. That is precisely why the Supreme Court’s decision in Chiles v. Salazar deserves a more careful reading than it has received. The ruling has been enveloped in a whirlwind of misunderstanding and misinformation regarding its actual content.

Many have alleged that the Court ruled that Colorado’s ban on conversion therapy was unconstitutional, or that it ruled that states do not have any power to ban conversion therapy. The reality is far more mundane—and far more nuanced.

The Supreme Court did not decide whether Colorado’s law is constitutional. The majority in Salazar ruled only that the lower Court of Appeals had applied the wrong legal test and ordered that the case be reargued. In the opinion of the Court, Justice Gorsuch writes, “The judgment of the Tenth Circuit is reversed, and the case remanded for further proceedings consistent with this opinion.” In plain terms, the Court overturned the lower court’s reasoning and instructed it to try again using the correct standard. Constitutional law depends on rulings like these, ensuring the correct standard is applied to balance the interests of states and the rights of citizens of the United States.

The obvious question, then, is what standard the Court required. The answer, strict scrutiny, is the most demanding form of constitutional review we have. There are several levels of scrutiny federal courts use in evaluating the constitutionality of legislation, with strict scrutiny being the most demanding, and rational basis review the most lenient. Strict scrutiny requires Colorado to prove that it had a “compelling governmental interest” in passing this law, that the law was “narrowly tailored” in its scope, and that it was the “least restrictive means” the state could have used to achieve its goal. The Court did not rule on whether the law would pass strict scrutiny; that question remains open.

The Tenth Circuit originally upheld the law using rational basis review, reasoning that it interpreted the Colorado law as “regulating professional conduct and… regulat[ing] speech only incidentally.” That distinction matters. Laws that merely touch on speech indirectly are given broad deference, but laws that regulate speech on the basis of content or viewpoint trigger the Constitution’s highest level of protection.

The Supreme Court found that Colorado’s law crosses that line. As Justice Gorsuch explains, “Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express.” The law itself prohibits “any practice or treatment by a licensee… 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.” The key point of contention in this case is the prohibition of “any practice or treatment,” which, in the case of Ms. Chiles (the therapist suing the state of Colorado), includes the things she says to her patients.

Citing the language of the Colorado law, the Court further elaborates that “Ms. Chiles may express ‘[a]cceptance, support, and understanding for the facilitation of . . . identity exploration.’... But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it.” The argument is a straightforward one: Ms. Chiles is not only limited in what she can say, but she is also required to only express a certain viewpoint on a client’s identity regardless of the client’s desires.

Even if a client who suffers from gender dysphoria seeks assistance in conforming with their biological sex, therapists cannot offer such counseling. No matter what, the state of Colorado requires that therapists advance an affirming viewpoint in their conversations with patients. A law that permits one side of a conversation while prohibiting the other is not merely regulating conduct; it is regulating viewpoints. Because of this distinction between censoring one viewpoint and compelling another, a higher standard of review must be used. That does not mean the Court has ruled on whether this legislation is constitutional; that is for the lower court to decide.

If this law is deemed unconstitutional, it will be only on very narrow grounds. The question at hand in Chiles v. Salazar is not whether a state can ban conversion therapy altogether, but whether the state has a compelling interest in regulating “talk therapy” aimed at changing a client’s sexuality, and whether the current means Colorado has used to meet these interests are not more restrictive than what’s needed. Ultimately, that question will be up to the lower courts. “The question before us is a narrow one,” Gorsuch writes “[Ms. Chiles] does not take issue with the State’s effort to prohibit what she herself calls ‘long-abandoned, aversive’ physical interventions.” The opinion of the Court even suggests that Colorado has the right to ban “conduct—such as aversive physical interventions,” because such interventions are considered conduct rather than speech, with the former having much fewer constitutional protections than the latter.

Nothing in the Supreme Court’s ruling in Chiles v. Salazar determines that Colorado’s law banning conversion therapy is unconstitutional or guarantees that the Tenth Circuit Court of Appeals will determine it to be unconstitutional when the case is reargued, but that is not the point. The Supreme Court did not endorse conversion therapy, nor did it strip states of their authority to regulate it. It simply reaffirmed the longstanding principle that when the government regulates speech on the basis of viewpoint—no matter how misguided that viewpoint—it must meet the Constitution’s highest standard.