(Bloomberg Law)—The US Supreme Court’s decision to hear a Colorado therapist’s suit over a state law barring her from counseling minor patients about their sexual orientation or gender identity has the potential for far-reaching effects on professional speech, scholars say.
The case is “part of a broader effort to use the First Amendment to strike down LGBTQ+ rights,” but could lead to the collapse of anti-discrimination and consumer protection laws if the justices extend their ruling beyond that context, said Scott Skinner-Thompson, a professor at the University of Colorado Law School in Boulder.
This is the first time the top court has considered the constitutionality of a state’s restrictions on professional speech since National Institute of Family and Life Advocates v. Becerra in 2018.
There, the justices said that a California law requiring anti-abortion pregnancy centers to publicly post information about where clients could get abortions was a content-based restriction that likely violated the First Amendment.
The court said “professional speech” is subject to the same rules as any other speech, but the justices recognized that state regulations of professional conduct that only incidentally implicate speech receives less protection.
The Colorado case provides an opportunity for the Supreme Court to further refine that precedent.
The decision could sweep in a variety of other restrictions on professional speech on other hot-button issues ranging from abortion to gun control, said Craig Konnoth, a professor at the University of Virginia School of Law in Charlottesville.
State Authority
States have the power to regulate licensed professionals, such as doctors and lawyers, within their borders. Historically, that was uncontroversial, Skinner-Thompson said.
About half the states now bar licensed professionals from engaging in “conversion therapy” with minor patients, Skinner-Thompson said.
Colorado’s provision defines “conversion therapy” as an effort “to change an individual’s sexual orientation, 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.”
A state can’t infringe on constitutionally protected fundamental rights, Skinner-Thompson said.
But “just because speech is involved doesn’t mean it’s protected,” he said. Laws that “target” speech—as opposed to only having an incidental effect on it—trigger First Amendment protection, Skinner-Thompson said.
Most courts consider the provision of medical care to be conduct that only incidentally affects speech, Skinner-Thompson said.
Konnoth said Colorado isn’t prohibiting therapists from talking about their views on sexual orientation or gender identity outside of their practices. In any event, the state has a compelling interest in protecting its youth, he said.
Narrow Issue?
But Reilly Stephens, senior counsel at Liberty Justice Center, said the case deals solely with whether states can limit what licensed professionals can say to their clients, he said.
Liberty Justice Center—a nonpartisan group that seeks to protect citizens’ rights, including First Amendment rights—filed a friend-of-the-court brief urging the justices to review the case.
Stephens drew a distinction between medical practice and therapy, which consists solely of speech.
“Therapy is treatment provided by speaking,” he said. Speech implications can’t be “assumed away” by saying the state’s just restricting conduct.
There’s a First Amendment “gloss” over state regulations, Stephens said. They can’t adopt content-based “speech codes to control what doctors can and can’t say,” he said.
He agreed that a doctor couldn’t, for example, be barred from talking to a patient about gender-affirming care, even in a state that doesn’t allow it to be prescribed.
“The government has no business prohibiting counselors from expressing ideas that are helping families,” said John Bursch, vice president of appellate advocacy for the Alliance Defending Freedom. The organization represents the therapist in the Colorado case.
“The government does not need to censor speech to combat discrimination,” Bursch said. A ruling for the therapist “will keep the government out of these critical conversations and protect the free-speech rights of counselors across the nation,” he said.
No Surprise
The Supreme Court’s decision to hear arguments in this case isn’t surprising, legal scholars said.
Three justices previously indicated they’d grant review of the issue, which has been percolating up through the courts for a while, Skinner-Thompson said.
“It was going to happen sooner or later,” he said.
“Conservatives sense that they’ve got the wind in their sails and will win in both the courts and the courts of public opinion,” Konnoth said.
The justices are also expected to resolve a circuit split between the US Court of Appeals for the Eleventh Circuit, which struck down a local Florida ordinance banning gay conversion therapy, and the Ninth Circuit, which upheld California and Washington laws restricting the practice, Konnoth said.
The Tenth Circuit’s decision in the Colorado case deepened the split, he said.
Konnoth worked on the California case during his tenure in the state’s solicitor general’s office.
For Stephens, the case is about defining the “contours” of professional speech regulation and not a “culture war.”
But every “major medical and mental health association in the United States” has “condemned” the practice, said Casey Pick, director of law and policy for the Trevor Project.
Research has shown that LGBTQ+ youth subjected to the therapy were more than twice as likely as their peers to attempt suicide within a year, she said.
The case is Chiles v. Salazar, U.S., No. 24-539, cert. granted 3/10/25.