Law Transforms Counselors into “Mouthpieces for the Government”  When the U.S. Supreme Court recently heard Chiles v. Salazar, the justices were confronted with a deceptively simple question: Can a state dictate what licensed therapists may or may not say to their adolescent clients about sexuality and gender? At stake is the speech of every professional – including therapists who affirm same-sex attraction, as well as those who are willing to question it. Also at stake is nothing less than the First Amendment’s bedrock promise that the government cannot punish expression based on viewpoint. A Law That Bans One Side of a Conversation Colorado’s law forbids therapists from engaging in any counseling with minors that aims to “change sexual orientation or gender identity,” including talk that seeks to reduce unwanted same-sex attraction or align gender identity with biological sex. Importantly, this law applies even to purely voluntary, conversational therapy – no drugs, no “aversion” techniques, just words between a willing patient and a counselor. For therapist Kaley Chiles, that law means she is forced to remain quiet with minors who come to her seeking help to live in accordance with their religious or personal convictions about sexuality. She argues that this is unconstitutional censorship on voluntary speech about deeply contested moral, religious, and scientific questions. Her lawyer, James Campbell, told the justices that if Colorado’s position stands, the state could “transform counselors into mouthpieces for the government.” Campbell invoked the Court’s 2018 decision in NIFLA v. Becerra, which struck down a California law forcing pro-life pregnancy centers to advertise abortion services. There, the Court held that professional speech still receives First Amendment protection and warned against “censoring private conversations between professionals and their clients.” The First Amendment in the Therapy Room The Tenth Circuit had rejected Chiles’s claim, applying the lowest standard of review – rational basis – to Colorado’s speech restriction. That ruling, Campbell told the Court, “gutted” NIFLA. Under such lenient scrutiny, a state could silence any disfavored viewpoint in a counseling session, from advice about divorce to moral discussions about abortion or family life. Several justices appeared troubled by that possibility. Justice Elena Kagan noted that if one therapist can tell a client “I’ll help you accept that you’re gay,” while another cannot say “I’ll help you change that” – “that seems like viewpoint discrimination.” Justice Neil Gorsuch pressed Colorado’s lawyer further. He asked that if the state can ban therapy that seeks to align a person’s identity with their biological sex, could a different state ban therapy that affirms a patient’s gay orientation – and justify it under the same rational basis standard? Colorado’s attorney, Shannon Stevenson, said yes. That answer underscores the double danger of viewpoint discrimination. What Colorado does today in the name of progress, another state could do tomorrow in the name of tradition. The federal government, appearing as a friend of the Court on Chiles’s side, made that exact point. Hashim Mooppan reminded the Court that in the 1970s, “it was the standard of care that being gay was a mental illness.” Under Colorado’s theory, a state back then could have outlawed counseling that affirmed a gay identity. That hypothetical isn’t ancient history; it’s the mirror image of the current case. What one era’s experts deem dangerous, another calls affirming. The Constitution doesn’t trust the government to referee such debates. Professional Speech Is Still Speech Colorado’s defense, echoed by Justice Ketanji Brown Jackson, was that Chiles is acting as a medical professional, not a private speaker. Justice Jackson asked why a therapist’s conversation about sexuality should be treated differently from a doctor prescribing medication. Campbell answered: “Because this involves a conversation.” That distinction matters. The First Amendment protects the exchange of ideas, even those occurring in professional settings. In NIFLA, the Court rejected the notion of a “professional speech doctrine” that would allow the state to regulate speech more freely simply because the speaker is licensed. As Justice Thomas wrote for the majority, “The First Amendment does not permit the government to impose content-based restrictions on speech without satisfying strict scrutiny.” If Chiles were decided otherwise, it would signal that professional speech – including a therapist’s, a professor’s, or even a lawyer’s – enjoys only conditional protection, subject to the prevailing political winds. The Slippery Slope of State-Approved Speech Colorado insists its law protects minors from harm but it has not cited a single study showing harm from voluntary talk therapy of the kind Chiles offers. Nor did the state explore less restrictive alternatives, such as informed-consent requirements or professional guidelines. Instead, it chose to ban speech outright – a blunt instrument aimed not at harm, but at a disfavored idea. And that is the essence of viewpoint discrimination – when the government’s concern is not the method of communication, but the message. The genius of the First Amendment is its neutrality. It protects speech we find uncomfortable precisely because we cannot predict which ideas will one day fall out of favor. A Warning from the Court When Justice Kagan and Justice Gorsuch – often ideological opposites – both voiced concern about viewpoint discrimination, it suggests that Chiles’s case may transcend culture-war lines. The Court’s challenge is not to decide who is right about gender or sexuality, but to reaffirm that the government cannot dictate the answer. Comments are closed.
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