No one told Kaley Chiles that she had crossed some sort of line or was in any kind of trouble. The Christian therapist did not sue the state of Colorado, where she lives, over anything that actually happened. It was, rather, a pre-enforcement challenge filed with legal help from the conservative Christian advocacy group Alliance Defending Freedom. The case is now before the U.S. Supreme Court, with a decision expected by the end of June.
Chiles contends that a 2019 Colorado law to prevent licensed therapists from engaging in conversion therapy—a discredited practice that involves trying to change young people’s minds about their sexual orientation or gender identity—stifles her First Amendment rights. According to Chiles’s complaint, “Colorado’s law forbids her from speaking, treating her professional license as a license for government censorship.” The Trump Administration has taken her side, lending one of its top lawyers to the cause.
The case, Chiles v. Salazar, will be the first time the Supreme Court has weighed in on the constitutionality of conversion therapy bans. But it is similar to other cases involving religion and public policy that have been brought before the Court in recent years, notably including 303 Creative LLC v. Elenis. In that case, a Colorado website designer, also backed by the Alliance Defending Freedom, sued over a state law that prohibited her from turning away gay customers even though none had sought to hire her and no one took any action to enforce the law. The designer, Lorie Smith, alleged that the state was “censoring and compelling my speech” by not allowing her to discriminate against hypothetical customers.
In 2023, the Supreme Court’s ultra-conservative supermajority ruled in Smith’s favor, striking down Colorado’s law, as this column predicted it would. Similarly, in the Chiles case, the Court, based on what was said during oral argument last October, seems poised to rule that Colorado’s conversion therapy law favors one viewpoint over another, known as “viewpoint discrimination,” a First Amendment no-no. (There are signs the Justices may not rule definitively on conversion therapy bans but, more narrowly, on whether lower courts performed the correct legal analysis in upholding Colorado’s law. This would still be a win for Chiles.)
The Court’s pending ruling could upend laws on the books in more than twenty states that forbid conversion therapy for minors. This practice is denounced by every major health organization, including the American Medical Association, the American Psychological Association, and the American Academy of Pediatrics. Conversion therapy doesn’t work to change a person’s sexual orientation, but it has been linked to harms including an increased risk of suicide.
Colorado’s law applies only to licensed therapists, not life coaches or counselors “engaged in the practice of religious ministry.” During oral argument on October 7, a lawyer for the state said even a licensed therapist like Chiles would not face disciplinary action “unless somebody files a complaint with [the petitioner’s] licensing board and she has an adjudicatory hearing, an opportunity for judicial review, and all those things.”
In other words, this is a challenge of a law brought by someone who was not, and likely will never be, subject to it. Out of this seed has sprouted a case that could topple the ability of state and local governments to disallow practices known to be ineffective and harmful.
In a November 2024 filing with the Court, Chiles’s attorneys described her as “a licensed counselor who helps people by talking with them” as well as a practicing Christian who “believes that people flourish when they live consistently with God’s design, including their biological sex.”
Chiles, the filing says, works with young people who come to her voluntarily to “achieve freedom from what they see as harmful self-perceptions and sexual behaviors.” She does not try to help them change “their attractions, behavior, or identity,” but instead lets them freely explore “gender roles, identity, sexual attractions, root causes of desires, behavior, and values.” And while Chiles “never promises that she can solve these issues, she believes clients can accept the bodies that God has given them and find peace.”
Colorado contends it has the right to regulate the conduct of medical professionals, “including treatments that use words.” Chiles’s lawyers insist her consultations are not conduct, which can be regulated, but speech, which is protected. They say the state had not identified a single study that supported its claim that “voluntary counseling between minors and licensed counselors” causes harm.
At oral argument, the Court’s conservative justices signaled their support for Chiles’s position, with Justice Samuel Alito positing it as a case of two scenarios. In one, a male adolescent comes to a therapist and says he feels uneasy about his same-sex attraction and would like to end or reduce it. Providing counseling along these lines would violate Colorado’s law. In the other, a young man with the same feelings who asked for a therapist’s help “so he will feel comfortable as a young gay man” would face no such prohibition. “Looks like blatant viewpoint discrimination,” Alito said.
Liberal Justice Elena Kagen seconded this concern: “[I]f a doctor says, I know you identify as gay and I’m going to help you accept that, and another doctor says, I know you identify as gay and I’m going to help you to change that, and one of those is permissible and the other is not, that seems like viewpoint discrimination.”
Indeed, of the nine Justices, only liberal Ketanji Brown Jackson seemed to fully accept the state’s position. She noted that, just last June, the Court had upheld Tennessee’s law restricting gender transition care for minors. Why was that restriction OK and this one not? “It just seems odd to me that we might have a different result here,” she said.
At one point, Jackson pressed James Campbell, Chiles’s attorney and chief legal counsel for the Alliance Defending Freedom, to admit that the state had produced evidence that conversion therapy is harmful. He replied: “Colorado certainly cites studies, but those studies suffer from significant flaws. The main flaw in all of them is that they lump together dissimilar approaches. They treat voluntary conversations the same as shock therapy.”
The American Civil Liberties Union (ACLU) has not filed a brief nor staked out a position on the Chiles case, although it has in the past strongly backed bans on conversion therapy for minors. The ACLU’s media office did not respond to inquiries from The Progressive regarding its position.
Meanwhile, the Foundation for Individual Rights and Expression (FIRE), a prominent free speech defender, has urged the Court to reject Colorado’s ban on conversion therapy. The group agrees with Chiles that the law targets protected speech.
“A win for Colorado,” FIRE stated, “would embolden government actors to impose broad viewpoint-based restrictions on a wide variety of professional speech disguised as regulations on ‘conduct.’ That possibility should worry everyone, no matter your views on conversion therapy.”
Under Chief Justice John Roberts, the Supreme Court has repeatedly interpreted the free speech protections of the First Amendment in a way that affirms the public policy goals of religious conservatives.
In a 2018 decision, it struck down a California law that required Christian pregnancy counseling clinics to inform clients of the option of abortion, finding that this violated their free speech rights. Last June, it ruled in favor of Christian parents who argued that a Maryland school district’s policy of allowing students access to LGBTQ+-themed books was a violation of their First Amendment rights. (Both of these lawsuits were backed by the Alliance Defending Freedom and the Trump Administration.)
In a brief to the Court in support of Colorado’s conversion therapy ban, the Wisconsin-based Freedom From Religion Foundation said the case was among a growing list in which religious parties “have been permitted to litigate claims that seek to make the law reflect their personal beliefs instead of legal rights and principles.” It noted that Chiles had not suffered any harm from Colorado’s law, nor was she likely to. “Despite having no history or intention of violating [this law], Chiles worries that somehow, someday, someone might get the wrong impression that she has,” it wrote.
Conversion therapy, as it has been practiced, sometimes involving chemicals or even electric shocks, is an abomination. It is rightly singled out as something that no licensed professional should engage in. But what the religious right has set out to do, in this case and others, is to identify less egregious examples that it can argue merit First Amendment protection, and then use those to undermine disfavored public policy.
And, in this, they have been extraordinarily successful. Since 2011, the Alliance Defending Freedom has directly represented parties in sixteen winning cases before the U.S. Supreme Court. Chiles v. Salazar will likely push that number to seventeen.