More than 20 states currently forbid medical professionals from offering corrective “treatments” for gay and transgender youth that seek to change their sexual orientation and/or gender identity. Major medical organizations have unanimously condemned conversion therapy as unscientific and potentially dangerous for patients. If the justices strike down such laws, states would have far fewer tools to protect gay and transgender Americans from harmful and often coercive treatments.
“Like Chiles, these clients ‘believe their faith and their relationships with God’ inform ‘romantic attractions and that God determines their identity according to what He has revealed in the Bible,’” her lawyers told the court in their petition for review. “These clients believe their lives will be more fulfilling if aligned with the teachings of their faith, and they want to achieve freedom from what they see as harmful self-perceptions and sexual behaviors.”
The law forbade licensed medical professionals and counselors from utilizing “any practice or treatment” that “attempts or purports to change an individual’s sexual orientation or gender identity” or “eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” While Chiles only practices talk therapy, conversion-therapy providers in other states have tried to use aversion therapy, hypnosis, and even electric shocks to try to change their clients’ orientations and identities.
The lower courts rejected her argument. States generally have the power to regulate professional conduct, especially in the medical field. In recent years, however, the Supreme Court’s conservative majority has been more receptive to challenges to those regulations on free-speech grounds. In the 2018 case NIFLA v. Becerra, for example, the justices struck down a California law that required crisis pregnancy centers—anti-abortion clinics that try to deter sometimes unknowing patients from obtaining the procedure—to inform patients about their options to obtain an abortion.
In doing so, the court’s conservatives limited states’ ability to regulate “professional speech,” a category of speech that had been widely recognized by the lower courts. Federal judges had long recognized that there were limits to what lawyers and doctors could ethically tell their clients. But that approach was treated with some skepticism by the majority in NIFLA, opening the door to challenges like the one brought by Chiles.
Two years ago, in 303 Creative v. Elenis, the conservative majority held that a Colorado state law that prohibited anti-LGBT discrimination in public accommodations could not be used against a Christian website designer in the state. The plaintiff said that she wanted to be able to design wedding websites without offering them to same-sex couples, even though she had never designed wedding websites before the lawsuit.
Chiles’s claim against Colorado is similarly pre-emptive and emphemeral. “Neither of the respondent Boards has received a complaint about [Chiles], much less taken any disciplinary action against her,” the state of Colorado told the justices. “[Chiles] has never alleged that she intends to practice conversion therapy as defined by the MCTL. She nonetheless filed a pre-enforcement challenge in 2022, more than three years after the MCTL took effect.”
“[Chiles] offered no expert declarations or affidavits and now invokes unvetted and irrelevant non-record material to suggest that young people’s health is at risk if health care professionals are unable to engage in conversion therapy—when the evidence indicates nothing of the sort,” the state argued. “Her failure to develop a record also makes this an especially poor vehicle for considering her pre-enforcement, facial challenge.”
By taking up this case, the court’s conservative majority could either narrow or strike down bans on conversion therapy by elevating the hypothetical harms done to counselors such as Chiles instead of the scientifically-proven harms done to LGBTQ patients by such treatments. The justices are already considering a case this term on whether the Fourteenth Amendment’s Equal Protection Clause protects transgender Americans from discrimination. In short, the court is poised to do tremendous damage to LGBTQ rights by the time its term ends this summer.
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