WASHINGTON, D.C. – Today, the U.S. Supreme Court ruled 8-1 in Chiles v. Salazar that Colorado’s 2019 counseling ban on talk therapy for minors violates the First Amendment and the free speech of licensed counselors. Colorado’s law banned licensed counselors from expressing viewpoints aimed at helping minors change any unwanted same-sex attractions, behaviors, or gender confusion. The majority opinion found the law “censors speech based on viewpoint,” and is “unconstitutional” under the “First Amendment’s jealous protections for the individual’s right to think and speak freely.”

Justice Ketanji Brown Jackson was the standalone dissent stating counseling only “incidentally” involves speech and that the practice of medicine is “subordinate to the police power of the States.”

However, Justice Neil Gorsuch authored the majority opinion stating the majority rejected the argument that licensed counseling incidentally involves speech and rejected it is merely “professional conduct” deserving of diminished protection. Rather, Justice Gorsuch explained that since Kaley Chiles’ counseling practice consisted entirely of the spoken word—without any physical interventions or medication— Colorado’s law regulated speech rather than conduct. The ruling reaffirms that licensed professionals (doctors, counselors, etc.) do not lose their free speech protections when they get a state license.

“The spoken word is perhaps the quintessential form of protected speech,” wrote Justice Gorsuch. “And that is exactly the kind of expression in which Ms. Chiles seeks to engage. As a talk therapist, all Ms. Chiles does is speak with clients; she does not prescribe medication, use medical devices, or employ any physical methods.” 

Chiles’ speech is not conduct just because it can also be described as a “treatment” or a “therapeutic modality,” wrote Justice Gorsuch.  “The First Amendment is no word game,” and free speech cannot be “renamed away or nullified by ‘mere labels,’” he stated. 

Justice Gorsuch noted that some of Chiles’ clients seek to align their attractions and behaviors in harmony with their bodies, but Colorado prevented those conversations from ever taking place because it is only in favor of expressing support for a child’s “gender transition.”

Allowing the law to stand would have created a “cavernous ‘First Amendment Free Zone’” stated Justice Gorsuch. The American people “lose” when the government transforms an opinion into forced conformity, reads the ruling.

Justice Gorsuch concluded that “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault” on the inalienable right of free speech and the free marketplace of ideas.

Liberty Counsel filed two amicus briefs to the High Court in this case, one arguing that the Court should take the case, and one on the legal merits of the case after the Court accepted the case for review. Liberty Counsel argued that Colorado’s law relies heavily on ideology instead of sound science, and that it should not stand because the First Amendment does not allow any state to dictate which counseling viewpoints may be discussed between a counselor and their client.

Liberty Counsel began this type of litigation with Pickup v. Brown against California in 2012, the first state to pass a law banning change counsel. Liberty Counsel won the first cases in the nation striking down these counseling bans in Florida. In both Otto v. City of Boca Raton and Vazzo v. City of Tampa, the Eleventh Circuit Court of Appeals struck down city ordinances that prohibited licensed counselors from providing voluntary talk therapy to minors seeking help to eliminate unwanted same-sex attractions or gender confusion because they were unconstitutional under the First Amendment. These cases set up the conflict with the Colorado case that provided the opportunity for the Supreme Court to take up the matter. 

Liberty Counsel Founder and Chairman Mat Staver said, “The U.S. Supreme Court’s resounding decision in Chiles v. Salazar is a major victory for the integrity of the counseling profession. This ruling ensures the government cannot strip the First Amendment away from licensed counselors and dictate a state-mandated ideology between counselor and client. Talk therapy is speech, and the government has no authority to restrict that speech to just one viewpoint. Counseling bans can now be struck down nationwide so that people can get the counseling they need.”

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