The U.S. Supreme Court has remitted a significant case concerning Colorado’s ban on “conversion therapy” back to the lower courts for reevaluation. The 8-1 decision favors Kaley Chiles, a therapist who claimed the law infringes on her right to free speech, particularly her ability to express certain views during therapy sessions with minors. This legal controversy stems from a 2019 Colorado statute aimed at preventing therapies intended to alter a young client’s sexual orientation or gender identity.
Justice Neil Gorsuch, authoring the majority opinion, indicated that the lower circuit court had erred by not applying a “strict scrutiny” standard—a more rigorous test of constitutionality—when reviewing the First Amendment implications for Chiles. The higher standard of review could potentially invalidate the ban, as it requires the government to demonstrate that any restriction on speech is tightly aligned with a compelling state interest.
Justice Ketanji Brown Jackson dissented, underscoring the professional context in which Chiles operates. Jackson argued that for licensed healthcare professionals, First Amendment protections can often be secondary to the state’s interest in regulating medical care. She expressed concern about the broader implications of restricting state power over healthcare communications.
The U.S. Court of Appeals for the 10th Circuit had earlier upheld the law, relying on the “rational basis” test, which is less stringent than strict scrutiny. The circuit court had declined to see the therapy ban as primarily about speech, framing it instead as a regulation of conduct associated with medical treatment.
Justice Elena Kagan, joined by Justice Sonia Sotomayor in a concurring opinion, acknowledged that while the law in its current form conflicts with First Amendment principles, a content-based yet viewpoint-neutral statute could present a more challenging constitutional question.
The Supreme Court’s decision to remand the case hints at potential difficulties ahead for laws restricting speech that are tied to professional conduct but it doesn’t address the merits of the ban itself. Legal professionals and policymakers will now await how lower courts will tackle the standard of review that will apply in this contentious area. For further details, the full discussion of the decision can be explored on SCOTUSblog.