Photo: A therapist conducts an online session with a transgender client. Getty images.
From the NASW Legal Defense Fund:
The oral arguments before the U.S. Supreme Court this week in Chiles v. Salazar centered on whether Colorado’s ban on conversion therapy for minors unlawfully restricts speech or permissibly regulates professional conduct. The justices’ questioning focused on the speech-versus-conduct distinction and the appropriate level of judicial scrutiny, signaling the case’s broad implications for state regulatory authority and clinical practice.
Petitioner Arguments
The Petitioner, Kaley Chiles, argues that her counseling, which helps clients realign their identity with their biological sex, consists only of words and is thus protected speech According to this viewpoint, restricting such conversations is a “categorical prior restraint on the speech of therapists” that lacks a “longstanding tradition” of regulation. Emphasizing the stakes of the case, counsel stated, “Colorado insists that its law is subject only to rational basis review, yet that would allow states to silence all kinds of speech in the counseling room, such as disfavored views on divorce or abortion. If heightened scrutiny doesn’t apply, states can transform counselors into mouthpieces for the government.” The Petitioner contends that the state’s power to regulate professional conduct should only apply when it is “incidental to regulated conduct,” such as administering drugs or performing procedures.
Respondent Arguments
Conversely, the Respondent, Salazar, representing the state regulatory agency, asserts that the law regulates professional “treatment” or “conduct,” not speech. Counsel explains that “because this law governs only treatments, it does not interfere with any First Amendment interest. It does not stop a professional from expressing any viewpoint about that treatment to their patient or to anyone else”. When a licensed professional is delivering clinical care, they have a “duty to act in their patient’s best interest” according to professional standards. From this perspective, the First Amendment offers “no exception” to the regulation of harmful practices, even if words are the primary tool.
Takeaways
In sum, Chiles v. Salazar stands to become a defining case in shaping the balance between First Amendment protections and state authority to regulate the practice of therapy. Its outcome will determine whether counseling conversations can be subject to content-based restrictions or remain shielded as protected speech. A decision applying strict scrutiny could significantly limit licensing boards’ ability to restrict therapeutic practices based on their content, while a ruling favoring rational basis review would reaffirm state power to set and enforce professional standards of care.
Regardless of the constitutional outcome, NASW remains steadfast in its support of the LGBTQ+ community. Permitting licensed mental health professionals to disregard widely accepted, evidence-based practices in favor of interventions that have been proven ineffective and harmful would undermine the very foundation of the mental health professions. To ensure that LGBTQ+ individuals, particularly minors, receive culturally responsive, comprehensive health and mental health care, NASW urges the Supreme Court to uphold the constitutionality of Colorado’s ban.
NASW has joined the American Psychological Association, American Psychiatric Association and 11 other organizations in an amicus brief supporting the respondent in the case, Patty Salazar, executive director of the Colorado Department of Regulatory Agencies. NASW and other mental health organizations argue that conversion therapy has long been proven to be ineffective and not change a person’s sexual orientation, gender identity, or gender expression and the practice is psychologically damaging.
