Conversion Therapy’s Pedantic Renaissance
Imagine a gay couple who got married following the US Supreme Court’s 2015 Obergefell decision that found the Fourteenth Amendment protects the right of same-sex couples to marry. After performing their vows, the two men kiss with the same lips that once chanted protest slogans and made arguments in favor of same-sex marriage — words protected by the First Amendment. Now, the same civil liberties that gave LGBT folks the power to advocate for their rights may be used to permit the suppression of gay, bi, and trans people in therapeutic settings.
Earlier this month, the Supreme Court heard oral arguments for Chiles v. Salazar, which challenges Colorado’s ban on the widely discredited practice of conversion therapy. In recent years, there has been a renewed interest in conversion therapy and adjacent practices, especially regarding trans-identifying minors, a large majority of whom stop identifying as trans when they are older, often maturing into gay cis adults. The prolific Alliance Defending Freedom (ADF), a Christian conservative legal group, argued that talk therapy meant to change a person’s sexual orientation or gender identity is protected speech when it excludes other treatment measures that combine speech with “conduct”, such as administering medication or shock therapy. This case forebodes a slew of culture war lawsuits presently on the Court’s docket, which may soon include a challenge to Obergefell itself.
The petitioner in Chiles v. Salazar is Kaley Chiles, a licensed counselor in Colorado Springs who feels her speech is being chilled by Colorado’s law that prohibits therapists from attempting to alter the gender identity or sexual attractions of a minor. Chiles says she is not deceptively inserting conversion therapy into her clients’ counseling without their knowledge. Rather, she claims her clients seek her out or are referred to her by churches because they want faith-based Christian counseling services that affirm a fixed biological sex and heterosexual attraction.
If the Court decides to strike down the ban, which would impact 27 states with similar laws, it will at least not result in the reintroduction of electric shocks, physical abuse, and forced medication. Instead, it will permit therapists to engage in talk-only therapy that tries to convert LGBT people out of their sexual orientation and/or gender identity. This type of discourse is already constitutionally protected speech when administered by a non-medically licensed person, such as a minister.
Source: New York Times.
Chiles v. Salazar focuses primarily on the speech rights of counselors to have consensual conversations with minors to alter their sexuality or gender identity, but it left important questions unanswered about what right a parent has to mandate talk-only conversion therapy for a minor who does not want it.
The case hinges on the distinction between speech and conduct, and what it means when the two concepts overlap. According to the speech-as-conduct doctrine, when speech is used to engage in behavior, such as describing how a patient should take medication, that speech is involved in conduct and not necessarily protected by the Constitution. However, the ADF argues that Chiles’ practice, which is based solely on conversation, is protected by the First Amendment.
The legal tensions at the heart of this case are nothing new. The law has long placed limits on what a professional may say to a client in certain regulated settings. Doctors cannot say whatever they want to patients. Lawyers and financial advisors cannot say whatever they want to their clients. And educators cannot say whatever they want to students. As a Yale Law Journal essay titled “The Limits of Professional Speech” explains, “Professional speech is different from other types of speech. When professionals speak to their clients to give professional advice within the confines of a professional-client relationship, the law constrains what they may say in many ways.”
Beyond that, a very credible argument can be made that conversion talk therapy goes beyond mere speech and constitutes treatment in and of itself. Justice Ketanji Brown Jackson appeared skeptical of the idea that the Court should find a distinction between speech used in a therapeutic setting as part of a treatment versus speech incidental to therapeutic conduct because such conversations, in her view, were essentially “a tool that is being used, just like in other medical treatments” such as scalpels or injections.
The ADF’s chief legal counsel, the well-spoken Jim Campbell, argued that “Colorado forbids counselors […] from helping minors pursue state disfavored goals on issues of gender and sexuality.” Even liberal justice Elena Kagan seemed skeptical of Colorado’s ban on conversion therapy for similar reasons. The ban appeared to Kagan “like viewpoint discrimination in the way we would normally understand viewpoint discrimination.” Viewpoint discrimination — another key concept in the case — is when the government favors one position over another, violating the government’s responsibility to maintain viewpoint neutrality.
The skepticism of Colorado’s law by Kagan, or even past LGBT allies such as Justice Neil Gorsuch, who previously supported decisions that protected and expanded the rights of LGBT people, reveals that granular legal technicalities often determine the outcome of court cases despite a judge’s personal preferences.
In Bostock v. Clayton County, GA (2020), Justice Gorsuch penned a decision that found firing an employee for being gay, bi, or trans constituted discrimination based on sex, and thus violated civil rights law. Yet, prior to his term on the highest court in the land, Gorsuch had made various rulings about contraception and LGBT discrimination that had advocacy groups worried about his SCOTUS nomination in 2017.
Throughout civil rights history, there have been many cases where the success or failure of a law meant to protect minorities is determined by specific legal mechanisms — often intermixed with political concerns — instead of any exalted ideals of justice. One such instance was the Civil Rights Cases (1883), which found the Civil Rights Act of 1875 was unconstitutional for prohibiting racial discrimination in private places such as hotels and railroads. The Court ruled 8-1 that the Fourteenth Amendment only regulates state action and could not outlaw discrimination in private places (this decision remains controversial today, as it may not reflect the original intent of the framers of the Fourteenth Amendment).
In the next century, after decades of struggle, a similar law was passed: the Civil Rights Act of 1964. Instead of drawing its powers from the Equal Protection Clause — which the Court found only applies to government action — it drew its authority from the Commerce Clause, allowing the federal government to prohibit racial discrimination in public accommodations such as hotels and restaurants.
Will the same instrument — the First Amendment — that allowed LGBT people to organize, advocate, and argue for equality before the law also permit licensed medical professionals to seek to convert LGBT youths into lives of repression? The US will have to wait months to know whether the Supreme Court will strike down laws that prohibit this talk-only conversion therapy. As the Court continues to hear and consider cases about LGBT issues throughout the duration of the second Trump administration, we will wait anxiously to know if human rights are safe, or if we will need to use the First Amendment to go back to the legal drawing board.
Published Oct 31, 2025
