Last week, the U.S. Supreme Court issued a decision regarding the legality of conversion therapy for gay and transgender minors. Over the past week, I’ve seen a lot of confusion about what the Court decided.
Because this is such a hot-button issue, it’s worth examining the case to understand the facts and the legal reasoning. At its core, the decision was not about conversion therapy as the media is making it out to be, it was about First Amendment rights.
Kaley Chiles is a licensed counselor in Colorado who provides talk therapy to her clients. Some clients seek support affirming their sexual or gender identity, while others ask for help resisting same-sex attraction or coping with gender dysphoria. Chiles provides both types of therapy, depending on what the client requests.
However, in 2019, Colorado passed a law broadly banning “conversion therapy” for minors. The law defines conversion therapy as “any practice or treatment … that attempts … 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 attractions toward individuals of the same sex.”
Yet, at the same time, the law does allow therapy that affirms or supports LGBTQ+ identities. Chiles challenged the law, arguing that it violated her First Amendment rights to help her clients.
The Supreme Court, in an 8-1 decision, sided with Chiles. Importantly, this ruling does not mean the Court endorsed conversion therapy. The legal issue was that Colorado allowed speech affirming certain identities but prohibited speech supporting other viewpoints. The Court emphasized that no one is forced to undergo conversion therapy, but individuals should be allowed to receive it if they choose. Because this was a First Amendment case, the Court applied strict scrutiny, the most demanding standard of constitutional review.
Strict scrutiny is the highest standard courts use to decide whether a law violates our Constitution and is normally the standard applied when it comes to the First Amendment. It requires a law to pass three tests: compelling government interest, narrowly tailored, and the least restrictive means.
First, compelling government interest means the law must address a critically important goal, such as protecting children or national security. If Colorado believed conversion therapy harmed minors’ mental health, this could constitute a compelling interest. Protecting children typically meets this standard.
Secondly, narrowly tailored means the law must be precise and not unnecessarily restrict speech. Here, the Colorado law had issues. By banning only one side of a therapeutic conversation, it was biased. The law might have passed if it had banned gender therapy entirely, but selectively banning only certain speech fails this requirement.
Finally, the least restrictive means there must be no less restrictive way to achieve the goal. The Colorado law also fails this test. There are alternative ways to protect minors from harm, such as requiring informed consent, distributing information about potential risks, or regulating harmful practices without restricting speech. Since the law focused solely on speech rather than physical or coercive therapy, outright bans are overly restrictive and vulnerable under the First Amendment.
The surprise in this case was not that two liberal justices agreed with the decision, but that Justice Ketanji Brown Jackson dissented from applying strict scrutiny. She did not view this as a First Amendment case. Instead, she wanted to frame it as a medical care issue, allowing her to challenge conversion therapy based on harm. By focusing on professional conduct rather than speech, she emphasized the state’s role in regulating licensed counselors. This approach treats Colorado’s law as a reasonable regulation of professional care rather than a restriction on free expression, sidestepping strict scrutiny and highlighting the protection of minors.
In essence, Jackson prioritized her personal views about the harms of conversion therapy over the First Amendment framework, creating a tension between protecting minors and defending speech rights.
I am far from an expert on conversion therapy. But in a time when free speech is being restricted around the world, even in free first-world nations, I am glad most of our judges still stand up for this most important of rights.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.
