How the Supreme Court Uses "Free Speech" to Dismantle LGBTQ Protections

In Chiles v. Salazar, the Court's conservative majority is poised to strike down conversion therapy bans by redefining harmful medical practices as protected speech.

The Supreme Court heard oral arguments Tuesday in Chiles v. Salazar, a case that will likely determine whether states can protect minors from conversion therapy, the discredited, harmful practice of trying to change someone’s sexual orientation or gender identity. Based on how the arguments went, it’s pretty clear which way this is headed, and it’s not good.

The case challenges a 2019 Colorado law that bans licensed mental health professionals from practicing conversion therapy on minors. The law doesn’t apply to religious counselors or prevent anyone from discussing their beliefs. It simply says that if you’re a licensed therapist, you can’t subject kids to a practice that every major medical and mental health organization in the country has condemned as dangerous and ineffective.

Kaley Chiles, a licensed counselor in Colorado, sued the state claiming the ban violates her First Amendment rights. She’s represented by the Alliance Defending Freedom, the conservative Christian legal group designated as a hate group by the Southern Poverty Law Center. ADF has been on a winning streak at the Supreme Court lately. They’ve successfully argued Masterpiece Cakeshop, 303 Creative v. Elenis (the wedding website case), and they were behind Dobbs, the decision that overturned Roe v. Wade. They’re now trying to add conversion therapy bans to their list of victories.

During Tuesday’s arguments, the conservative majority signaled they’re ready to do exactly that. Justice Samuel Alito characterized this as a “pure speech” First Amendment case. When Justice Ketanji Brown Jackson asked James Campbell, the ADF lawyer representing Chiles, whether he was “categorizing her therapy as a medical treatment,” Campbell responded that “the First Amendment depends on the difference between speech and conduct, not on the difference between treatment and non-treatment.”

That framing (conversion therapy as “pure speech” rather than a regulated medical practice) seemed to resonate with the majority. The arguments lasted just under 90 minutes, and by the end, only Jackson seemed to be mounting a serious challenge to ADF’s position.

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This isn’t some isolated case where the justices just happen to be wrestling with difficult First Amendment questions. This is part of a clear, consistent pattern of the Supreme Court siding against LGBTQ rights whenever religious objections are invoked.

Look at the recent track record. In 2021, the Court ruled unanimously in Fulton v. City of Philadelphia that the city violated the First Amendment by refusing to contract with Catholic Social Services unless the agency agreed to certify same-sex couples as foster parents. Sure, the decision was technically narrow, turning on specific contract language that allowed for discretionary exceptions. But the message was clear: religious objections trump nondiscrimination protections.

Two years later came 303 Creative v. Elenis, where the Court ruled 6-3 that Colorado couldn’t require a website designer to create sites for same-sex weddings. The case was built on a comically shaky foundation. When Lorie Smith filed her lawsuit in 2016, she hadn’t even started designing wedding websites yet. The “request” from a same-sex couple that her ADF lawyers later submitted to the court? It turned out to be fake. The man whose name appeared on the request form has been married to a woman for years and says he never sent it. None of that mattered to the Court’s conservative majority.

Then, just this past June, came United States v. Skrmetti. The Court ruled 6-3 that Tennessee’s ban on puberty blockers and hormone therapy for transgender minors doesn’t violate the Equal Protection Clause. Chief Justice John Roberts performed some impressive rhetorical gymnastics to get there, insisting that a law explicitly targeting transgender youth was actually just about “age” and “medical use,” not sex or transgender status. As Chris Geidner at Law Dork noted, Roberts essentially resolved the case through his choice of definitions while claiming to stay out of the policy debate.

Now we have Chiles, and the same playbook is in effect. Call it “pure speech,” frame state regulation as “viewpoint discrimination,” and the outcome writes itself.

This isn’t the same Supreme Court that gave us Obergefell v. Hodges, the 2015 decision establishing marriage equality. It’s not the Court that decided Bostock v. Clayton County in 2020, extending employment discrimination protections to LGBTQ workers. That Court had Justice Anthony Kennedy, who wrote the Obergefell decision with soaring language about dignity and equality. That Court had a different composition and, apparently, a different view of whose rights matter most when they come into conflict.

The current Court has a 6-3 conservative majority, and when cases pit religious objections against LGBTQ rights, we know how it’s going to go. The same legal group keeps winning. The same framing keeps working. And LGBTQ people, especially LGBTQ kids, keep losing.

There’s something else going on here that’s worth paying attention to: the Court has figured out it can reach whatever outcome it wants by simply choosing how to define what’s at issue in a case.

Geidner put it perfectly in his Law Dork newsletter: this was “a sharp lesson in how much power the court has in resolving cases through definitions while claiming to stay out of the political and policy debates.”

Supreme Court likely to strike down Colorado's conversion therapy ban

In Skrmetti, Roberts framed Tennessee’s ban on gender-affirming care as a law about “age” and “medical use.” Never mind that everyone who supports or opposes that law knows perfectly well it’s about sex and transgender status. By defining it as an age-based medical regulation, Roberts could apply the weakest form of constitutional scrutiny and uphold the ban.

Jump ahead to Tuesday’s arguments in Chiles, and suddenly we’re in what Justice Elena Kagan called “free speech land.” Colorado describes its law as banning “a practice or treatment performed for the purpose of changing the patient’s sexual orientation or gender identity.” Sounds like medical regulation, right? But the Court isn’t buying it. Instead, the majority appears ready to define this as pure speech deserving of robust First Amendment protection.

Campbell’s argument for Chiles boils down to this: speech is speech, no matter where it happens or in what context. If a therapist is just talking to a patient, that’s not “conduct” that can be regulated like other medical treatments. It’s speech, and any attempt by the state to regulate it must be subjected to strict scrutiny, meaning it will almost certainly be struck down.

Jackson tried to push back on this. She asked Campbell about two licensed professionals treating someone who wants “to live consistently with my biological sex.” One treats the person with medication, the other with talk therapy. Why should they be treated differently under the law?

Campbell’s answer was telling: it doesn’t matter whether we’re talking about medical treatment or not, because “the First Amendment depends on the difference between speech and conduct, not on the difference between treatment and non-treatment.”

Colorado Solicitor General Shannon Stevenson stood firm in her response. “Counseling is an evidence-based practice that Petitioner trained for thousands of hours to be qualified to do,” she argued. “And her advice and counseling therapies through her words can be extremely harmful. And so there is no difference between that and the medical context.”

But the majority didn’t seem persuaded. Jackson noted that “it’s just a little puzzling to me that she would stand in a different position than a medical professional who has exactly the same goals, exactly the same interests, and would just be prescribing medication for that rather than her talking with the client.” She was talking to an unsympathetic bench.

The Trump administration’s position, argued by Principal Deputy Solicitor General Hashim Mooppan, went even further. He called Colorado’s law “a sweeping categorical prior restraint,” using language associated with some of the most disfavored types of speech restrictions. Justices Neil Gorsuch and Clarence Thomas picked up that framing in their questions to Stevenson.

Here’s what makes this so frustrating: the inconsistency is baked right in. As Geidner points out, under the Court’s current approach, states can regulate attorney advertising and solicitation (a heavily speech-based profession) and they can ban gender-affirming medical care for transgender minors. But states apparently cannot require crisis pregnancy centers to provide accurate medical information, and they cannot ban conversion therapy.

What’s the difference? Well, in the cases where the Court lets states regulate, they define the issue in a way that avoids triggering heightened First Amendment scrutiny. In the cases where they strike down state laws, they define the issue as pure speech or viewpoint discrimination.

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Let’s be clear about what we’re talking about when we say “conversion therapy.” This isn’t some legitimate therapeutic approach where reasonable people might disagree. Every major medical and mental health organization in the country has condemned these practices as dangerous and ineffective. The American Medical Association, the American Psychological Association, the American Psychiatric Association, the American Academy of Pediatrics. All of them.

Conversion therapy refers to a range of discredited practices aimed at changing someone’s sexual orientation or gender identity. These can include behavior modification techniques, aversive treatments, and psychoanalytic approaches rooted in the idea that being LGBTQ is caused by “faulty parenting” or can be “cured.” It subjects patients to guilt, coercion, and trauma in an effort to make them believe they’re fundamentally broken.

The harm is well-documented. According to the Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health, 13% of LGBTQ young people ages 13 to 24 reported being subjected to conversion therapy practices, with 83% of them saying it happened when they were under 18. A peer-reviewed study published in the American Journal of Public Health found that LGBTQ youth who underwent these practices were more than twice as likely to report having attempted suicide.

More than twice as likely to attempt suicide. That’s what we’re talking about here.

Human Rights Campaign President Kelley Robinson put it bluntly in a statement after Tuesday’s arguments: “So-called ‘conversion therapy’ is not therapy, it is an abusive discredited pseudoscience rooted in shame, rejection and fear. It often resorts to guilt, coercion and trauma in a disturbing effort to make someone believe they are less than simply because of who they are. These appalling practices can destroy families, worsen mental health outcomes and rob people of their faith communities.”

Twenty-three states and the District of Columbia have laws protecting minors from these practices when performed by licensed mental health professionals. If the Supreme Court strikes down Colorado’s law, all of those protections could be in jeopardy.

And it’s not like Chiles is being prevented from expressing her religious beliefs. She can talk about her faith all she wants. She can advocate for her views on sexuality and gender. The Colorado law explicitly exempts religious counseling. What she can’t do is use her license as a mental health professional to subject vulnerable minors to harmful, discredited practices that the entire medical establishment has rejected.

That distinction seems to be lost on the Court’s conservative majority.

The Supreme Court has become very good at pretending its decisions are about neutral principles rather than outcomes. It’s about “age” and “medical use,” not discrimination against trans kids. It’s about “free speech,” not allowing harmful practices targeting LGBTQ youth. It’s about religious liberty, not whose rights actually matter when they conflict.

But you can’t look at the pattern and come away thinking this is anything other than what it is. The same legal group keeps bringing these cases. The same justices keep ruling in their favor. And LGBTQ people, especially kids, keep losing protections.

The Court will issue its decision in Chiles v. Salazar sometime next year, probably in June. Based on Tuesday’s arguments, we know how it’s going to go. Colorado’s conversion therapy ban will be struck down, and similar laws in nearly half the states will be threatened. Kids who are already vulnerable, already facing higher rates of depression and suicide, will lose legal protections against practices designed to make them hate themselves.

And the Court will tell us this is just about the First Amendment. That it’s not taking sides in culture war debates. That it’s simply applying neutral legal principles. We know better.