Oct. 7 (UPI) — The Supreme Court‘s conservative justices signaled Tuesday they were likely to side with a Christian therapist who argued that Colorado’s ban on conversion therapy violates her free speech rights.
The case stems from a lawsuit by Kaley Chiles, a licensed counselor whose practice is based in Christianity who says the Colorado law prevents her from assisting her minor clients who seek “to live a life consistent with their faith.”
Conversion therapy can include psychological, behavioral, physical and faith-based practices that are intended to change a person’s sexual orientation or gender identification. Opponents point to evidence that it is harmful and leads to more serious psychological problems for people who experience it. Roughly half of states have banned it.
However, the court’s justices argued whether the conversion therapy banned by Colorado’s law is harmful to minors and if it was a violation of the Constitution’s free speech protections or regulation of medical treatment.
Justice Samuel A. Alito Jr. said that Colorado’s law would mean different treatment for an adolescent male who approaches a licensed therapist hoping to lessen his attraction for other males versus another adolescent male who wants to feel something different.
“It looks like blatant viewpoint discrimination,” he said.
Colorado is one of 23 states that ban conversion therapy, which is the practice of attempting to change a person’s sexual orientation or gender identity through therapy.
Critics call the technique a pseudoscience, and the American Psychological Association and several other mental health and LGBTQIA+ organizations have come out in opposition to its use.
Colorado Attorney General Phil Weiser said a Supreme Court ruling striking down Colorado’s law could imperil not only efforts to prevent conversion therapy but other healthcare treatments that medical experts say are harmful or ineffective.
“For centuries, states have regulated professional healthcare to protect patients from substandard treatment,” he said, according to NBC News. “Throughout that time, the First Amendment has never barred states’ ability to prohibit substandard care, regardless of whether it is carried out through words.”
James Campbell, the lawyer for Chiles argued that the studies showing the harms of conversation therapy are flawed because they lump together voluntary conversations between a client and therapist with coercive measures, like shock therapy.
Alliance Defending Freedom, a conservative legal firm, is representing Chiles in the case.
Shannon Stevenson, the state’s solicitor general, argued that the harm in conversion therapy “comes from telling someone there’s something innate about yourself you can change.”
“Then you spend all kinds of time and effort trying to do that,” she said. “And you fail, but you bore the burden.
A lower court ruling said the Colorado law is a restriction on mental health treatment, not on speech. In a ruling by the 10th U.S. Circuit Court of Appeals, justices said the ban aligned with medical consensus that conversion therapy is “ineffective and harmful” and “rationally serves” the interests of the state in protecting minors.
Stevenson reiterated that argument saying that “Colorado’s law regulates treatments only and because it enforces the professional standard of care,” not speech.
However, conservative members of the court didn’t seem to buy that argument.
“Just because they’re engaged in conduct doesn’t mean that their words aren’t protected,” Chief Justice John Roberts said.
Justice Ketanji Brown Jackson, one of the court’s liberals, brought up how the Supreme Court upheld Tennessee’s ban on gender-affirming care for minors. She asked if Colorado’s law wasn’t just the functional equivalent” of Tennessee’s law.
“I realized that there were two different constitutional provisions at issue, but the regulations work in basically the same way, and the question of scrutiny applies in both contexts,” she said. “So it just seems odd to me that we might have a different result here.”
Hashim Mooppan, a principal deputy solicitor general representing the Trump administration, argued that Tennessee’s law concerned drugs and medical treatment while Colorado’s law was focused on what is said during talk therapy sessions.