WASHINGTON — The Supreme Court justices on Tuesday heard a free-speech challenge to state laws against “conversion therapy” and sounded likely to rule the measures violate the 1st Amendment.
California and more than 20 other states have adopted laws to forbid licensed counselors from urging or encouraging gay or transgender teens to change their sexual orientation or gender identity.
They were adopted in reaction to a history of dangerous and discredited practices, including treatments that induced nausea and vomiting or administered electric shocks.
Lawmakers and medical experts said these efforts to “cure” LGBTQ+ teens were cruel and ineffective and caused lasting harm.
But these “talk therapy” laws have been challenged by a number of Christian counselors who believe they can help young people who want to talk about their feelings and their sexual identity.
The court on Tuesday heard an appeal from Kaley Chiles, a counselor from Colorado Springs, Colo. She says she is an evangelical Christian, but does not seek to “cure” young people of a same-sex attraction or change their gender identity.
But she sued, alleging the state law seeks to “censor” her conversations and threatens her with punishment.
She lost before a federal judge and a U.S. appeals court, both of whom said the state has the authority to regulate the practice of medicine and to prevent substandard healthcare.
But the justices, both conservative and liberal, said the Colorado law appeared to violate the 1st Amendment.
“What’s being regulated here is pure speech,” said Justice Samuel A. Alito Jr.
Moreover, he said, the state law enforces a double standard. It would punish a licensed counselor who agrees to talk to a teenage client who wants to “overcome same-sex attractions,” but not if she encourages the teen to accept or affirm those attractions.
Justice Elena Kagan said she too saw a potential 1st Amendment violation. And Justice Sonia Sotomayor said there was less evidence that talk therapy alone has caused real harm.
In defense of the law, Colorado state solicitor Shannon Stevenson said the law applies only to licensed counselors. It does not extend to others, including religious ministers.
The practice of medical care “is a heavily regulated area. A doctor doesn’t have a 1st Amendment right to give wrong advice to patients,” she said.
Justice Amy Coney Barrett and others suggested counselors could still face a medical malpractice lawsuit, even if the court rules the state law violates the 1st Amendment.