On March 31, the Supreme Court released its 8-1 decision in Chiles v. Salazar, holding that Colorado’s Minor Conversion Therapy Law (MCTL), C.R.S. §§ 12-245-101, 12-245-202, unconstitutionally regulates speech as applied to the Petitioner. The narrow ruling offers some clarification of the rules that govern speech incidental to the conduct of regulated professionals.
As summarized in Dykema’s November 2025 edition, Colorado’s MCTL forbids mental health counselors from engaging in “conversion therapy” by counseling minor clients to change their sexual orientation or gender identity. Kaley Chiles, a licensed mental health counselor, sought to engage in such conversations but refrained because of the MCTL. She raised an as-applied challenge to the law under the First Amendment and sought a preliminary injunction. The district court denied the injunction, and a divided Tenth Circuit affirmed.
Colorado argued the MCTL regulates speech that is only incidental to Chiles’s conduct—the administration of talk therapy—and thus does not violate the First Amendment. Chiles argued the MCTL is an unconstitutional viewpoint-based speech restriction because it permits a counselor to affirm a client’s sexual orientation or gender identity, but not to attempt to change or suppress it.
The majority, in an opinion authored by Justice Gorsuch, sided with Chiles. First, the majority found that Chiles had standing, agreeing that the MCTL prohibited her from engaging in certain speech during talk therapy, and emphasizing that Chiles faced a credible threat of enforcement under the MCTL, which created a chilling effect on her speech. The majority also reasoned that, because the MTCL would permit Chiles to affirm a client’s sexual orientation or gender identity but prohibited her from attempting to change or suppress it, the law restricted her speech based on viewpoint. Relying on a long history of First Amendment jurisprudence, the majority also found Colorado’s law did not meet requirements for content-based speech restrictions. And the majority rejected the idea that Chiles’s speech was “incidental” to her conduct because when administering talk therapy, her only conduct is her speech.
In a brief concurring opinion that was joined by Justice Sotomayor, Justice Kagan noted that it would be a closer question if a law is content-based but viewpoint-neutral. In the context of healthcare, which is highly regulated and pervasive, Justice Kagan suggested the decisive question will be the “difference between viewpoint-based and viewpoint-neutral content discrimination.”
Justice Jackson issued a lengthy dissent. Explaining that the scientific consensus in the medical community counsels against the use of conversion therapy because of its harmful effects on recipients, Justice Jackson took issue with the majority’s rejection of a state’s ability to curtail harmful practices in the highly regulated context of healthcare.
The majority’s ruling is narrow, but it is likely that Chiles will encourage challenges in other states with similarly worded conversion therapy bans.
Link to Takeaways: Takeaways:
- Protections for “Pure Speech”: Laws that ban the expression of some viewpoints but not others through the modality of talk therapy are likely unconstitutional as applied to some counselors. Speech made during one’s work as a licensed therapist cannot be regulated merely because the speaker holds a professional license, and speech is not necessarily incidental to the conduct of talk therapy.
- Implications for Similar Bans: Legislatures should examine the wording of local conversion therapy bans to determine if they are subject to challenge following Chiles.
For more information, please contact Chantel Febus, James Azadian, and Ryan VanOver.