Chiles v. Salazar

A Colorado counselor, Kaley Chiles, is asking the Supreme Court to rule that her voluntary talk therapy with minors is protected speech under the First Amendment. She argues that because her therapy consists only of conversation, a state law that forbids her from helping clients align their gender identity with their biological sex is a form of censorship. The state of Colorado counters that this is not a free speech issue at all. It argues that when a licensed professional is treating a patient, their words are a form of medical 'conduct' that the state can regulate for safety, just as it regulates surgical procedures or drug prescriptions.

The central tension is whether the government's power to regulate professions can extend to controlling the actual content of conversations. Chiles argues that calling talk therapy 'conduct' is a word game designed to strip it of constitutional protection. Her position, based on a past Supreme Court case, is that professionals do not lose their First Amendment rights just because they are speaking as part of their job. During arguments, Justice Jackson questioned this premise, asking how this therapy is different from a doctor prescribing medication to achieve a similar goal, suggesting she views the therapy session as a clinical setting where the state has a strong interest in setting safety standards.

The state warns that if Chiles wins, any professional—from a doctor giving debunked medical advice to an engineer giving faulty instructions—could claim a First Amendment right to provide harmful advice as long as it is delivered through words. This would cripple the state’s ability to protect the public from malpractice. The difficult question for the Court is to find the line where a professional's conversation stops being an exchange of ideas and starts being a medical treatment the government can control.

Counselor Kaley Chiles argues that a Colorado law creates exactly this unconstitutional imbalance. She claims the law is a classic example of 'viewpoint discrimination' because it takes sides in a debate. Under the law, a therapist is free to have conversations that affirm a minor's decision to identify as a different gender than their sex at birth. However, a therapist is forbidden from having conversations aimed at helping a minor explore feelings that might lead them to become comfortable with their biological sex. Chiles's attorney powerfully argued that this is one-sided, noting a minor can get therapy to transition without parental consent, but is barred from getting therapy for the opposite viewpoint even with parental consent.

The state of Colorado argues it is not discriminating against a viewpoint but is instead regulating a harmful medical practice. The state's position is that its ban is based on the overwhelming consensus of every major medical and mental health organization in the country, all of which have concluded that therapies aimed at changing a minor's gender identity or sexual orientation are dangerous. Therefore, the state claims it is not silencing an idea it dislikes, but rather enforcing a neutral, evidence-based standard of care to protect children from demonstrable harm, such as depression and suicide.

The conflict forces the Supreme Court to decide what the law is truly targeting. If it is targeting a specific message—'it is better to identify with your biological sex'—then it is likely unconstitutional censorship. But if it is targeting a specific harmful action—the act of performing a discredited therapy—then it may be a permissible health and safety regulation. The challenge is that, in this context, the message and the action are delivered through the very same words.

This question, raised forcefully by Justice Gorsuch during arguments, exposes the central risk in the state of Colorado's legal position. Colorado defends its ban on therapy aimed at changing a minor's gender identity by arguing it is simply enforcing the current, overwhelming consensus of major medical organizations that such therapy is harmful. This approach seems reasonable when applied to a practice that is widely discredited today.

However, Justice Gorsuch presented a devastating historical hypothetical: in the 1970s, the established medical consensus was that homosexuality was a mental disorder. He asked Colorado's lawyer if, under her legal theory, a state back then would have been justified in banning therapy that affirmed a gay identity. This hypothetical flips the script, showing how the power to regulate professional speech based on 'consensus' could be used to enforce outdated, discriminatory, or politically motivated views. It suggests that what is considered 'harmful' or outside the 'standard of care' can shift dramatically over time.

The state's attorney struggled to provide a direct answer, attempting to pivot back to the specific facts of her case and the strength of the current medical agreement. Her reluctance to defend the logical extension of her argument was telling. It highlighted the core danger identified by the counselor challenging the law: allowing the government to ban conversations based on prevailing scientific or political views creates a weapon that could be turned against different ideas in the future, chilling speech and locking in one era's orthodoxy as permanent law.

This question frames the fundamental constitutional debate in the case. Generally, the First Amendment provides robust protection for speech, but the government has long had greater authority to regulate what people say when they are acting as licensed professionals. The state of Colorado argues this authority is broad, allowing it to regulate therapy as a form of professional 'conduct' to protect vulnerable patients from treatments deemed harmful by the medical community. In the state's view, a therapy room is not a public square for debating ideas; it is a clinical setting where the state must ensure safety.

On the other side, counselor Kaley Chiles argues that professionals do not surrender their constitutional rights at the office door. She relies heavily on a recent Supreme Court precedent, NIFLA v. Becerra, which affirmed that professionals retain First Amendment protection. She argues that because her service is conversation, a law banning certain conversations based on the ideas expressed is a direct regulation of speech, not conduct. To her, the state is trying to use the label of 'professional regulation' as a loophole to engage in otherwise forbidden censorship.

The Supreme Court is therefore tasked with defining the scope of the 'professional speech doctrine.' If the Court sides with Colorado, it could affirm that states have significant power to control the content of conversations within professional-client relationships, especially in healthcare, to enforce standards of care. If it sides with Chiles, it would signal that even in a clinical setting, a professional's speech on matters of public and personal importance is highly protected, limiting the state's ability to declare certain therapeutic viewpoints off-limits.

A person generally cannot challenge a law in court unless they can show they are facing a real and immediate threat of being harmed by it, a legal requirement known as 'standing.' In this case, a Colorado law forbids counselors from providing therapy aimed at changing a minor's gender identity. However, as Justice Sotomayor pointed out during arguments, the law has not been enforced for six years, and the state has suggested it would not apply to the specific kind of voluntary talk therapy provided by the counselor, Kaley Chiles.

This raises a critical procedural question: how can Chiles claim she is under an 'imminent threat' of prosecution if the state isn't actively enforcing the law against people like her? The state argues she cannot, and that her lawsuit should be dismissed because she doesn't have standing. If she isn't actually at risk, then there is no live controversy for the court to resolve.

Chiles's response is that the law is still on the books, and its plain text appears to cover her work. The threat of a future prosecutor deciding to enforce it creates a 'chilling effect,' forcing her to self-censor her speech to avoid potential punishment, which itself is a form of harm. This procedural issue gives the Supreme Court a potential 'off-ramp.' The justices could choose to dismiss the case on this technical ground, ruling that Chiles lacked standing to sue in the first place. Such a decision would leave the major First Amendment question about speech versus conduct unanswered for another day.