Conversion Therapy: A Judicial Reprieve

An 8-1 decision reveals less about conversion therapy than about where the Court has decided the Constitution stops state power in its tracks.

Photo by Karollyne Videira Hubert on Unsplash

Of all days, the ruling arrived on Transgender Day of Visibility. In an 8-1 decision that drew six conservatives and two liberals into a single majority, the Supreme Court held that Colorado’s 2019 ban on conversion therapy, as applied to the talk therapy practice of licensed counselor Kaley Chiles, regulates speech based on viewpoint and must face strict scrutiny rather than the deferential standard the 10th Circuit had applied. The surprise is not the outcome. The surprise is who joined it.

A court that defers broadly to state health and safety regulations found, here, that labeling a practice “treatment” does not shield it from the First Amendment’s most demanding test. The ruling is less a vindication of any particular therapy than a signal about where, and for whom, the Constitution’s speech guarantees now run most forcefully. That selectivity is the pattern worth watching.

The Event Beneath the Headlines

In Chiles v. Salazar, No. 24-539, argued October 7, 2025, and decided March 31, 2026, the Court reversed the 10th Circuit and remanded for strict scrutiny review. Justice Gorsuch, writing for all eight colleagues except Justice Ketanji Brown Jackson, held that Colorado’s Minor Conversion Therapy Law censors speech based on viewpoint as applied to Chiles’s practice. The 10th Circuit had applied rational basis review, treating the law as a professional conduct regulation that only incidentally burdened speech. Gorsuch rejected that framing entirely.

Conventional narrative reads this as another chapter in the Court’s culture-war jurisprudence: a religious counselor, backed by the Alliance Defending Freedom, wins a First Amendment claim against a law designed to protect LGBTQ minors. That reading is accurate as far as it goes.

The problem is that it cannot explain Justice Elena Kagan. Kagan, joined by Justice Sonia Sotomayor, wrote separately to agree that Colorado’s law is viewpoint-discriminatory. Her reasoning sharpened the point: the state permits therapy that supports a minor’s gender transition while forbidding therapy that questions it. That selective suppression of one side of a debate is precisely what the First Amendment forbids. And her concurrence opens a consequential door: another state could, on the same logic, ban identity-affirming therapy rather than identity-changing therapy. The symmetry is exact.

Professional Speech Under Strict Scrutiny

The deeper institutional shift concerns the doctrine of professional speech and whether it can insulate state licensing decisions from First Amendment challenge. Colorado’s position rested on a longstanding premise: that states have broad authority to regulate what licensed professionals do in a professional capacity, including what they say. The Supreme Court, in Gorsuch’s opinion, reaffirmed what it began in NIFLA v. Becerra (2018): there is no broad exemption from the First Amendment for speech that happens to occur in a professional setting.

Gorsuch distinguished the two narrower speech categories that receive lesser protection, fraud and direct incitement, and found neither applicable to Chiles’s talk therapy. When a state restricts a licensed professional’s speech because of the views expressed, favoring one side of an ongoing debate, strict scrutiny applies. Colorado’s law permits a counselor to support a minor’s gender transition through talk therapy while forbidding support for a minor’s wish to explore identity differently. Gorsuch found the asymmetry dispositive.

Jackson’s dissent, which she read from the bench, argued that this framing erases a century of state police power doctrine. “It threatens to impair States’ ability to regulate the provision of medical care in any respect,” she wrote. The stakes on both sides were concrete. For Chiles, the ban threatened fines of up to $5,000 per violation and loss of her license. For Colorado, the law reflected a consensus from the American Psychological Association and major pediatric organizations that practices aimed at changing a minor’s sexual orientation or gender identity cause harm. Those competing interests have now been resolved, for the moment, in the counselor’s favor.

The Selective Libertarian Turn

The Court’s expansion of speech protections into professional regulatory space has a traceable precedent. NIFLA v. Becerra (2018) struck down a California law requiring crisis pregnancy centers to disclose available state-funded abortion services, overriding the state’s claimed authority to define what licensed professionals must communicate in a professional context. Chiles extends that logic: when a state restricts a professional’s speech not just by subject but by viewpoint, favoring one position in a live debate over another, strict scrutiny follows regardless of the regulatory label attached.

The through-line is not partisan. Kagan agreed with the majority. The issue is selectivity: the same Court that gives states latitude across many regulatory domains draws a hard line when viewpoint discrimination appears in the therapeutic space. State legislatures and licensing boards that built protective frameworks on the assumption that medical consensus justified regulating a treatment’s content now face the Constitution’s most exacting test. The power shift runs asymmetrically: a state wanting to ban identity-affirming therapy rather than identity-changing therapy would face identical scrutiny. The symmetry is logical. It is also cold comfort for the two dozen states whose laws are now vulnerable.

Ripples Through Bodily Sovereignty

The second-order effects of the ruling are already calculable. The remand to the lower courts will require Colorado to demonstrate, under strict scrutiny, a compelling governmental interest pursued by a narrowly tailored statute. Given Gorsuch’s language characterizing the law as “censorship,” that standard is likely difficult to meet. Similar laws in roughly twenty other states now face the same scrutiny, either through amended filings in existing challenges or through new litigation following the ruling.

States will attempt to respond through redrawn statutes. Kagan’s concurrence points toward a thin pathway: a viewpoint-neutral law regulating both sides of the therapeutic debate equally might survive, though it would make the protective purpose considerably harder to explain. More practically, regulators will turn to informed-consent frameworks and procedural licensing conditions, tools more durable under First Amendment review. Whether those tools adequately protect the population the original laws addressed is a separate, unsettled question.

A 2024 survey by the Trevor Project of more than 50,000 LGBTQ Americans ages 13 to 24 found that 5 percent had undergone conversion therapy, down from 10 percent in 2020, a decline attributed in part to state bans. The fragmentation of those bans under strict scrutiny review may slow or reverse that trend. The parallel dispute over gender-affirming care for minors, already contested in federal courts on different legal grounds, proceeds on its own track, but the doctrinal logic of Chiles reaches into the same terrain wherever state authority over therapeutic conversation involving minors’ identity is at issue.

Selective Libertarianism and the Next Fault Line

The ruling’s pattern is visible. The Court applies its most demanding speech protections in licensed professional relationships with minors when a state’s regulation favors one side of a contested identity debate. That principle does not map cleanly onto a conservative-versus-liberal axis, as Kagan’s concurrence demonstrates. It maps onto the Court’s evolving theory of when government authority over clinical speech crosses into unconstitutional viewpoint control, a theory whose reach now extends into youth mental health.

The practical challenge for states is not drafting. It is coherence. A legislature that wants to protect minors from practices the medical community has labeled harmful must now construct a regulatory framework that does not suppress one ideological position about identity formation while permitting another. Kagan’s concurrence points toward viewpoint-neutral laws as the narrower viable path, but a statute that restricts all one-sided therapeutic speech about identity, regardless of direction, would be difficult to defend on policy grounds and easy to challenge on others. Gorsuch’s majority leaves little room to maneuver.

Whatever the lower courts determine on remand, Chiles v. Salazar signals a Court increasingly willing to apply the Constitution’s most exacting scrutiny in the domain of youth psychology and identity, where state police power meets the individual therapist’s claimed right to speak. Democratic majorities in state legislatures may still have tools to protect minors. They will need to deploy them with precision, under the knowledge that the Court has now moved the constitutional baseline in a domain that once looked settled.

Brewster’s Brief

The Case: Chiles v. Salazar

The Gist: Can the government tell a therapist what they can and can’t say to a patient? Colorado tried to ban “conversion therapy” for minors, but the Supreme Court just hit the pause button, saying that talking—even when it’s controversial “treatment”—is still protected speech.

The Vibe: An 8-1 landslide that brought together some very unlikely allies (looking at you, Gorsuch and Kagan).

Why it Matters: This isn’t just about one specific type of therapy. It’s a massive signal that the Court is ready to step into the “professional” world—doctors, lawyers, counselors—and tell states they can’t play favorites with which ideas are allowed in the room. If you thought state licensing boards had the final word on medical standards, think again; the First Amendment just cut to the front of the line.