The Fate of ‘Conversion Therapy’ Bans Is in the Supreme Court’s Hands. Here’s What to Know

“Conversion therapy,” the widely discredited practice of trying to change someone’s sexuality or gender identity, has been banned across more than 20 states over the last 13 years.  But the fate of those prohibitions is now in question, as the nation’s highest court will begin hearing a challenge to Colorado’s state-level ban on conversion therapy for minors on Tuesday.  Colorado has said that the law is a typical regulation of professional health care treatment that protects children from harm, pointing to what it characterized as “overwhelming evidence that efforts to change a child’s sexual orientation or gender identity are unsafe and ineffective.”  Ruling against the ban, it argues, would “undercut states’ longstanding ability to protect patients and clients from harmful professional conduct.” But in Chiles v. Salazar, the case now before the nation’s high court, mental health counselor Kathy Chiles alleges that the state’s ban infringes on her free speech protections.  “The government has no business censoring private conversations between clients and counselors,” Jim Campbell, chief legal counsel of the Alliance Defending Freedom, which is representing the plaintiff in the case, told TIME in a statement. “Colorado’s law harms these young people by depriving them of caring and compassionate conversations with a counselor who helps them pursue the goals they desire.”  Here’s what to know about the case, and what’s at stake in the court’s decision.  What is the case about?   Chiles v. Salazar was filed by a local practitioner against the state’s 2019 minor conversion therapy law (MCTL), which specifically bars licensed professionals from treating minors with conversion therapy. The suit was a pre-enforcement challenge, meaning it wasn’t responding to any enforcement action taken by the state but rather was filed in anticipation of possible enforcement in the future. Chiles, the plaintiff, argues that the state law is a “viewpoint-based speech restriction” because it allows her to speak to clients if she helps them “embrace a transgender identity,” but does not protect her if “those clients choose to align their sense of identity with their sex by growing comfortable with their bodies,” according to the brief filed on her behalf.  Colorado, on the other hand, argues that previous Supreme Court rulings make clear “that the First Amendment allows states to reasonably regulate professional conduct to protect patients from substandard treatment, even when that regulation incidentally burdens speech.” Now, the Supreme Court—which decided to hear the case following a circuit court split—will consider whether Colorado’s law violates the First Amendment, or is a permissible restriction on free speech. How is the Supreme Court expected to rule?  The case, experts say, could go either way.  Eugene Volokh, a University of California, Los Angeles law professor and expert on the First Amendment, says that many states have other restrictions of professional-client speech, particularly for licensed professionals. Licensed lawyers, for instance, cannot provide legal advice to non-clients. And medical professionals have the responsibility to provide treatment that does not cause harm to their patients.  While the Supreme Court hasn’t ruled on conversion therapy in the past, it has delivered other decisions that Volokh says will likely shape this case. In its 2018 National Institute of Family and Life Advocates v. Becerra (NIFLA) decision, for instance, the Supreme Court ruled that a California state law requiring pregnancy crisis centers to disclose state services about family planning, including abortion, was an infringement of free speech. “The Supreme Court suggested that there is no special exception for professional-client speech,” says Volokh. But he adds that the court didn’t rule on what to do “with regard to the general licensing requirements” or “restrictions on counseling that the profession, or at least the majority of the profession, views as incompetent or as dangerous.” Still, he says, it’s possible the Supreme Court could rule similarly to a lower court decision in Otto v. City of Boca Raton, which struck down a local ordinance barring therapists from engaging in conversion therapy, determining that there are no exceptions to speech protections for professional speech per the NIFLA decision. Restrictions on talk therapy, the court found, were unconstitutional. Casey Pick, director of law and policy at nonprofit The Trevor Project, notes another, more recent decision from the nation’s high court when discussing the potential outcome of the Chiles case: this summer’s U.S. v. Skrmetti ruling, in which the conservative majority allowed a state-level ban on gender-affirming-care for youth to remain in place. “In Skrmetti, the court ruled in favor of a state’s ability to make a decision about the provision of medical care, and whether, even in the case then where doctors, medical organizations and parents all supported access to that kind of care, the legislature did not,” says Pick, whose organization filed an amicus brief in favor of respondents in Chiles v. Salazar. Chiles v. Salazar is in some ways similar, Pick says. The Skrmetti decision dealt a heavy blow to LGBTQ+ rights. But, she says, “If the Supreme Court is to be consistent with its decision in Skrmetti, then it should rule in favor of Colorado being able to regulate these practices.”  What’s at stake?  The court’s decision could determine the fate of conversion therapy bans across more than half of the U.S. While there is no national law restricting the practice, 23 states have laws similar to Colorado’s on the books, and Executive Orders in other states also restrict the practice—impacting the lives of many LGBTQ+ youth.  Whether or not other state-level conversion therapy bans would immediately be overturned if the Court decides against Colorado’s depends on what the court rules, experts say.  Advocates argue that the case is not a “speech case” but rather a case about regulating medical and mental health care for the benefit of LGBTQ+ youth. Young people who have undergone conversion therapy are more than twice as likely to report having a suicide attempt in the past year, according to a 2020 peer-reviewed study by the Trevor Project published in the American Journal of Public Health.  “We would find ourselves in a situation where you would no longer have a law that prohibits this conduct ahead of time and protects young people from being subjected to it,” Pick says.  Conversion therapy is a highly controversial practice that arose as a treatment for people who experienced same-sex attraction and is not recognized as a “legitimate therapeutic practice” because it does not “target any underlying mental illness or disorder,” according to an amicus brief filed by the American Psychological Association (APA) and more than a dozen  other major medical associations.  “The most recent research supports the American Psychological Association’s conclusions that SOGICE [sexual orientation and gender identity change efforts] are not helpful therapeutic interventions but rather ineffective and potentially harmful practices that reinforce stigma,” the brief says. “Exposure to SOGICE is associated with a range of negative outcomes, including ‘loneliness, regular illicit drug use, suicidal ideation, and suicide attempt[s]’ as well as ‘severe psychological distress.’” And many other countries—including Brazil, Canada, Spain, Germany, France and others—have banned the practice nationwide.