The Constitution and Colorado's Conversion Therapy Ban

May a state constitutionally ban counselors from encouraging patients to identify with their biological gender—while allowing counselors to encourage patients to change gender?

On March 10, the Supreme Court agreed to review a case posing that issue.

The case is Chiles v. Salazar. It is the latest of three Supreme Court cases arising from Colorado policymakers' efforts to suppress disfavored viewpoints on gender and sexuality.

The Background of the Colorado Law

Some readers may be surprised that suppression efforts should come out of Colorado. Until a few years ago, the Centennial State was among the nation’s most freedom-loving. In 2009, the Mercatus Center at George Mason University ranked Colorado as the second most free state in the country. (New Hampshire was first.)

But Colorado’s political climate has changed, rapidly and drastically. In part, this was due to a calculated effort by “progressive” forces to flip the state. But mostly it was due to population changes: In 2009, there were under five million Coloradans. Now there are over six million—largely due to massive immigration from blue states.

Thus, by 2013 (the last year Mercatus issued its rankings), Colorado had dropped from 2^nd on the freedom index to 19^th. Since then, regulation and government spending have exploded, and every branch of state government seems to have taken on an authoritarian tinge.

So, it was in keeping with Colorado’s new political climate when the state government tried to restrict the religious freedom of a conservative Christian baker by forcing him to prepare cakes celebrating same-sex weddings. In that climate, moreover, a Christian web designer felt compelled to sue to protect her free speech rights.

Both the baker case and the web designer case went to the Supreme Court, and in both, the justices slapped down the Colorado authorities hard.

But the results seem not to have deterred state politicians. In 2019, the Colorado legislature banned licensed counselors—including physicians—from uttering politically-disfavored speech while administering therapy.

Specifically, the legislature prohibited “conversion therapy” for minors. It defined conversion therapy as

“any practice or treatment . . . 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.”

Meanwhile, the legislature excluded from the ban

“Acceptance, support, and understanding for the facilitation of an individual's coping, social support, and identity exploration and development . . . as long as the counseling does not seek to change sexual orientation or gender identity.”

It also excluded from the ban “Assistance to a person undergoing gender transition.”

As a practical matter, the statute permits counselors to assist patients who wish to depart from their biological gender, while prohibiting them from assisting patients in reclaiming their biological gender.  Moreover, the statute not only prohibits counselors from addressing actual psychological disorders: It also prohibits them from addressing purely voluntary “behaviors or gender expressions.”

The Case Background

Kaley Chiles, a licensed counselor and traditional Christian, asked a federal district court for a preliminary injunction against the 2019 legislation, claiming it violated the Free Speech Clause of the First Amendment. She argued that the law was unconstitutionally vague and was a “viewpoint based” restriction. Under the Supreme Court’s twentieth century First Amendment precedents (largely disconnected from the actual meaning of the First Amendment), a viewpoint-based restriction is void unless the state can show it is “necessary to further a compelling governmental purpose.”

The district court denied her request, with one judge dissenting. The U.S. Court of Appeals for the Tenth Circuit affirmed. Both courts held that the law merely regulated Chiles’ professional conduct and that the law’s restrictions on speech were merely incidental to that conduct. Both tribunals also ruled against Chiles’ claim that the statute was unconstitutionally vague.

Chiles then successfully petitioned the Supreme Court for a writ of certiorari—that is, for review of the lower courts’ conclusions.

A Reason Such Cases Arise

Traditionally, American political liberals have distinguished between civil liberties (which they count as important) and economic freedom (which they count as less important). But the three Colorado cases illustrate that freedom is not so easily divisible. There are no airtight compartments between civil liberties and economic freedoms.

On their face, most civil rights laws seem to restrict only economic freedom. But by forcing those in business to serve those they do not wish to serve, civil rights laws—as justifiable as they are—necessarily infringe on the right of free association. More seriously, the number of protected categories in civil rights laws has a way of multiplying. In Colorado, for example, the protected categories have expanded far beyond those marked by immutable characteristics, such as race or sex, to include groups engaging in arguably optional—or even inarguably optional—behavior. And as the number of protected categories has grown, enforcement has increasingly clashed not just with the right of free association but with the First Amendment civil liberties of freedom of speech, press, and religion.

Similarly, Colorado’s regulations on licensed counselors have grown; there are now dozens of restrictions in state law, not to mention those imposed by regulatory agencies. The speech restriction on Kaley Chiles is only one example.

The Free Speech Issue

As noted earlier, the court of appeals held that Colorado’s ban on conversion therapy is merely a prohibition of a particular kind of professional conduct, to which speech is merely incidental. The court added that “speech made in a professional context—particularly in the context of licensed professional counseling—is distinguishable from, for example, political speech.”

One can argue that in today’s environment, any discussion of issues such as “gender identity” is necessarily “political speech.” Whether or not that is true, however, the court of appeals’ holding is problematic for several reasons.

First, although twentieth century Supreme Court majorities distinguished between political and other kinds of speech, the Constitution makes no such distinction. On the contrary, the historical record shows that when the Bill of Rights was ratified, the concept of “freedom of speech” included all forms of speech equally, aside from a few specific exceptions such as treason, sedition, and slander.

Second, labeling the speech prohibited by the Colorado statute as “incidental to professional conduct” proves too much. The religious and speech freedom the Supreme Court protected in the baker and web designer cases was also incidental to their professional conduct. To take the point further, the government might similarly justify bans on certain newspaper comments because those comments are published only “incidentally” to the conduct of the newspaper profession.

Third, the dissenting district court judge observed that the holding encourages a dangerous trend in which government censors justify suppression by labeling disfavored comments as “unprofessional” or “professional misconduct.” While still in academia, I experienced this myself: When I dared to criticize publicly decisions of the state supreme court, the court’s supporters on the faculty—instead of defending my right to speak—tried to marginalize my comments by charging that by taking my case to the public, I was acting unprofessionally.

The Parental Rights Issue

A century ago, the Supreme Court issued two cases holding that the Constitution, under the Fourteenth Amendment Due Process Clause, protects the right of parents to govern the education and upbringing of their children. The court has endorsed those cases many times since—most recently in 2022—and they remain good law.

Parents of a child suffering from gender dysphoria may well decide that “conversion therapy” is the best course for their child. However, the Colorado legislation conflicts with that right by outlawing conversion therapy for minors.

The rights of parents are not at issue in the Chiles case because the person challenging the law is not a parent but a counselor. But if the law survives current Supreme Court review, parental rights could be the basis for future litigation.

Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3^rd ed., 2015). He is a contributor to the Heritage Foundation’s “Heritage Guide to the Constitution.”