SCOTUS to Consider Whether State Bans on “Conversion Therapy” Violate the First Amendment

This morning, the Supreme Court granted certiorari in Chiles v. Salazar, a First Amendment challenge to a Colorado law that prohibits so-called “conversion therapy” for minors. At issue is whether this is a permissible regulation of professional conduct or a viewpoint-based restriction on speech (with potential religious liberty implications as well). This will almost certainly be one of the most watched (and potentially most controversial) cases of next term.

Here is the question presented from the petition for certiorari:

Kaley Chiles is a licensed counselor who helps people by talking with them. A practicing Christian, Chiles believes that people flourish when they live consistently with God’s design, including their biological sex. Many of her clients seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires. But  Colorado bans these consensual conversations based on the viewpoints they express. Its content- and viewpoint-based Counseling Restriction prohibits counseling conversations with minors that might encourage them to change their “sexual
orientation or gender identity, including efforts to change behaviors or gender expressions,” while allowing conversations that provide “[a]cceptance, support, and understanding for…identity exploration and development, including…[a]ssistance to a person undergoing gender transition.” Colo. Rev. Stat. § 12-245-202(3.5).

The Tenth Circuit upheld this ban as a regulation of Chiles’s conduct, not speech. In doing so, the court deepened a circuit split between the Eleventh and Third Circuits, which do not treat counseling conversations as conduct, and the Ninth Circuit,
which does.

The question presented is:

Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech  Clause.

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