US supreme court appears poised to overturn Colorado ban on ...

The US supreme court appeared ready to rule against a Colorado law that bans “conversion therapy” practices that seek to change minors’ sexual orientation or gender identity, repeatedly questioning the state over whether the law hindered free speech and whether these practices have been proven harmful.

The high-stakes case could roll back the rights of LGBTQ+ youth across the country. Colorado is one of more than 20 states in the US that have banned conversion practices, and a ruling in favor of the Alliance Defending Freedom (ADF), a Christian legal group, could make those laws vulnerable to similar challenges.

In Chiles v Salazar, ADF is representing a woman who objected to a 2019 Colorado law outlawing conversion practices for youth under age 18. The law applies to licensed mental health clinicians who seek to change a patient’s gender identity or sexual orientation, discredited tactics that major medical associations have said are ineffective and harmful.

The conservative justices repeatedly questioned whether the law was an unconstitutional regulation of speech and whether the conversion practices in question were harmful enough to constitute banning them. They also inquired how Colorado was interpreting its statute, saying the plain language did not seem to comport with how it is being interpreted.

At times, the liberal justices sought to understand the state’s interpretation of the law as well, though they also noted how the state had not disciplined anyone over violations of the statute.

ADF, a conservative organization behind major anti-abortion and anti-LGBTQ+ cases, is representing Kaley Chiles, a licensed Colorado counselor who is Christian and contends the ban violates her first amendment rights to discuss her faith with patients. Her petition, Colorado’s lawyers argue, is based on a hypothetical infringement on her free speech, since the state has not disciplined her.

ADF says Chiles has begun “censoring herself” with her clients due to fear of the law, and her 2022 lawsuit against the ban was a “pre-enforcement challenge”.

As oral arguments began on Tuesday, the liberal justices questioned how Chiles’s therapy is affected by the law and how she is harmed by the law, despite not being subject to enforcement actions.

Jim Campbell, the alliance’s chief legal counsel, told the justices that the state was investigating complaints against Chiles. He described the therapy she provides as helping clients “when their goals are to resolve gender dysphoria by getting comfortable with their body and realigning their identity with their sex” and that she “helps them if they’re experiencing unwanted same sex attraction, if their goal is to reduce it”.

“There is ongoing harm every day,” Campbell said. “Ms Chiles is being silenced and the kids and families who want her help are unable to access it.”

Hashim M Mooppan, the principal deputy solicitor general in the US justice department, argued against the Colorado law before the court, saying the law didn’t meet the high standard of “strict scrutiny”, a judicial test for whether a government can constitutionally impede in a given area. The law was in essence a “prior restraint” on a therapist’s speech, he said. “The law restricts speech based on content and viewpoint,” Mooppan said.

The Colorado law prohibits any “licensed physician specializing in psychiatry or a licensed, certified, or registered mental health care provider” from engaging in “conversion therapy”, which it defines as “attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex”.

The law does not apply to non-medical professionals, such as religious ministers, and does not regulate the conduct of practitioners like Chiles outside of their work.

Conversion practices are condemned by the American Psychological Association, American Medical Association, the American Academy of Child and Adolescent Psychiatry and other major groups, with experts noting the techniques are linked to increased depression and suicide attempts. The outlawed practices – sometimes called “reparative” therapy or “sexual orientation change efforts” – have historically involved outdated tactics such as electrical shocks but can also take the form of religious counseling or talk therapy aimed at suppressing LGBTQ+ people’s identities and expression.

Shannon W Stevenson, Colorado’s state solicitor general, answered questions from the conservative justices over the care in question and whether it is harmful to patients. Stevenson argued that the Colorado law did not hinder a therapist’s speech and was not a violation of the first amendment, as the plaintiffs have argued.

“This court has recognized that state power is at its apex when it regulates to ensure safety in the healthcare professions,” Stevenson told the justices in her opening. “Colorado’s law lies at the bull’s eye-center of this protection because it prohibits licensed professionals from performing one specific treatment because that treatment does not work and carries great risk of harm.”

The state has interpreted the statute to prohibit therapies that would seek to reverse orientation or identity, Stevenson said, in response to questioning from justice Samuel Alito, who repeatedly asked about hypothetical patients and what care they could be seeking from a talk therapist. Therapy that helps people “cope with their feelings” without seeking to change their orientation would be allowed, she said. “Conversion therapy” was a “debunked” practice, she said, and detailed specific harms people report when they have undergone such practices.

“If the therapist told him or he asked, ‘Can you help me become straight?’ The answer would be, it would be banned,” Stevenson said. “The harms from conversion therapy come from when you tell a young person you can change this innate thing about yourself, and they try and they try and they fail, and then they have shame and they’re miserable, and then it ruins their relationships with their family.”

Stevenson also sought to draw distinctions between how the law applies to medical professionals and not those whose standard of practice isn’t regulated by the statute. The state can make sure health professionals align with a “standard of care”, she said, and in this instance, “conversion therapy” was not within the standard of care.

Alito questioned how the state was interpreting the statute and said it seemed to be regulating speech. “That seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination,” he said. He also questioned whether ideology sometimes plays a role in what is considered a medical consensus. Justice Amy Coney Barrett repeatedly asked for details or proof on how the practices were harmful.

Campbell, in his rebuttal, said that Chiles “wants to have full conversations, exploring issues of identity and gender, and that includes considering “change” of their orientation or identity.

“This law harms gender-dysphoric kids,” he said, claiming they will be “locked in” to the path of social and then medicalized transition practices.

The gender-affirming care model, backed by major medical groups, calls for extensive therapy to explore patients’ feelings of dysphoria and only involves prescribing medications when trans youth are persistent about their identities.

ADF has referenced several academic experts in its petition to reauthorize conversion practices. But two of those cited scholars, in interviews with the Guardian published on Monday, argued that ADF had “profoundly” misrepresented their work. Studies of the efficacy of this treatment came up repeatedly during the arguments, with Stevenson saying a controlled trial of children receiving this treatment would be ethically suspect.

ADF in an earlier statement defended its quotations as “accurate”.