Free Speech Victory for Counselors – Part 1

Professional counseling to overcome homosexuality or transgenderism has been the focus of attack by the LGBT movement at home and abroad for some time. A major decision, crucially important for religious freedom, free speech, and liberty of conscience, which should be definitive, but may well have to be fought in litigation in other cases, was issued by the Supreme Court this spring in the Chiles v. Salazar case. 

Kaley Chiles is a Licensed Professional Counselor (LPC) and a Licensed Addiction Counselor (LAC) in Colorado. She is associated with Deeper Stories Counseling, which attempts to “bridge the divide between the mental health community and the faith community.” She filed a pre-enforcement lawsuit against Colorado’s ban on professional counseling against homosexuality or transgenderism for minors (the Minor Conversion Therapy Law (MCTL)) as an unconstitutional ban on freedom of religion and freedom of speech. The U.S. Supreme Court agreed with her free speech claims in a March 31 decision that the MCTL was both an “egregious assault” on free speech and guilty of “viewpoint discrimination” (the state mandating speech in favor of a particular viewpoint in an ongoing controversy, one of the worst violations of the free speech doctrine).

The Danger in Counseling Bans

The great danger in such laws – beyond the fact that people ought to be able the access such counseling if they want – is that the prohibition of speech against homosexuality or transgenderism will spread from professional counseling to any such speech by anyone. This is shown in many Western nations and jurisdictions that have done exactly that, so that even the counseling of a parent to their child against LGBT behavior or inclination is illegal. Some such laws, as in Germany, apply only to speech to minors, others, as in France, apply to speech by anyone to anyone. In the United States, such legislation is blocked by the strong free speech doctrine the Supreme Court has long upheld. But many states have attempted to erode the free speech doctrine by passing laws prohibiting professional advice aimed at overcoming LGBT inclination and behavior, or at least such counseling for minors.  

Another great danger in the controversy is the way the LGBT movement has termed such counseling. Called “reparative therapy” or “sexual orientation change therapy” (SOCE) by its advocates, it is called “conversion therapy” by its opponents. The use of the word “conversion” seems strategic, as it could very easily be extended beyond sex to religion, and stigmatize, and ultimately criminalize any advocacy of change in religious beliefs or practices. Again, the free speech doctrine in this country makes this unlikely in the near future, but it is a possibility, perhaps longer-term, in other Western jurisdictions.

Counseling Bans in Other Western Nations

This writer has reviewed the alarming progress in the early 2020s of bans against counseling to overcome LGBT behavior and inclination in other countries. In late 2020, it was noted that the meaning of “conversion therapy” was being extended to include any practice, whether a paid service or not, intended to suppress or extinguish homosexual inclination or transgender identity. Also apparent in laws in other countries similar to Colorado’s law is the viewpoint discrimination, which makes illegal telling others about the very real dangers of LGBT life (which pro-LGBT advocates reflexively attribute to “stigma,” or “discrimination”), while explicitly allowing affirmation of any LGBT identity. This was done by Bill C-8 in Canada, which ultimately did pass as the even more severe Bill C-4, without hearings or debate in the Canadian Parliament in December 2021.

At the same time, a similar legislative push was noted in Great Britain and Victoria state, Australia.  It was observed in connection with the British legislation that Christianity seeks personal conversion from sin, not therapy, and labelling conversion as “therapy” and criminalizing it is a direct attack on the gospel. It was also noted that this would include speech in church or at home. The provincial law in Australia was passed with extremely high penalties (ten years in prison and the equivalent of a £100,000 fine).

Subsequent articles pointed to the advance of “conversion therapy” bans that effectively criminalized expression condemnatory of LGBT behavior and inclination in the West (here, here, here, here, and here). These laws really attack Christian faith and morals at a very basic level, the level of sexual morality. They represent the gravest domestic threat to Christianity (and to the classical liberal doctrines of freedom of religion and free speech that developed in later Christian civilization) since the conversion of the West to Christianity in ancient times.

Hurt Feelings as Harm

The positions taken on this issue in Supreme Court briefs followed familiar lines, with conservative churches and right-leaning organizations supporting Chiles, and liberal or secularist organizations supporting Colorado. It is important to notice that the issue before the court was not policy (whether sexual orientation change therapy (SOCE) is right or wrong), but constitutional requirements.

As noted in the Family Research Council brief (to be reviewed subsequently), LGBT advocates earlier maintained in United States v. Skrmetti (2025) that the Equal Protection clause of the Fourteenth Amendment meant that Tennessee could not prohibit the “gender transitioning” (really sexual mutilation) of minors, whereas in Chiles v. Salazar, they maintained that the Free Speech clause of the First Amendment may be set aside by Colorado to prohibit speech discouraging such “transitioning” of minors. Notably, the American Civil Liberties Union, which still holds a strong free speech doctrine, and the American Bar Association, both of which filed briefs in the 303 Creative v. Elenis case opposing freedom of expression for creative professionals, did not submit a brief  in Chiles v. Salazar. A review of the more notable briefs follows.

The American Psychological Association, the American Psychiatric Association, and twelve other mental health and medical associations (including the American Medical Association and the American Academy of Pediatrics) in their brief basically held that the harm of SOCE (or SOCGICE, sexual orientation change and gender identity change efforts, referring to therapy to overcome transgenderism) has been well established by professional medical associations. The speech of Licensed Professional Counselors or others with health credentials in treating patients was held to be a form of conduct, and thus not to have the protection of the First Amendment. APA strongly maintained that regulation of therapists’ speech to achieve beneficial outcomes for mentally distressed LGBT people is “evidence based.” But it is difficult to see how this could be true, if (on page 32 of the brief) it was (shockingly) held the “SOCGICE should neither be studied nor provided precisely because SOGICE may cause harm to patients.”

Perhaps key to this is the claim (pages 13-14) that homosexual desire and expression have in the course of the development of psychology been found to be a normal variation of the human personality rather than a pathology. In fact, however, both of the APAs (psychological and psychiatric) were intimidated by homosexual activists into denying the pathology of homosexuality in the early 1970s, and this denial now carries over into transgenderism. The claim of normalcy for LGBT identities further ignores that occurrence of sexual variety does not establish the normalcy of behaviors and inclinations contrary to the intent of sex, and this has devastating results.

A brief from several constitutional law and First Amendment scholars concedes that the NIFLA v. Becerra (2018) Supreme Court decision (very relevant to the Chiles case) did not exempt “professional speech” from First Amendment protection but maintains that NIFLA made an exception for professional speech that “incidentally involves speech.” The problem here is that Childs’s speech which might turn patients away from homosexuality or transgenderism is not incidental, but fundamental to her purpose of helping patients reach their desired goals. The state is really engaging in viewpoint discrimination in holding that homosexual inclination or identification with the opposite sex should not be suppressed or extinguished, that it is “harmful” to try to do so, while encouraging homosexual or transgender identity.

 A variety of pro-LGBT religious organizations submitted a brief concurring that the speech of licensed professionals is not free, and against the claim of Kaley Chiles that her religious freedom would be violated (although the Supreme Court did not entertain the free exercise claim). Here appeal was made to the infamous Employment Division v. Smith (1990) decision (which many liberal spokesmen, including the ACLU, oppose for other purposes). It was claimed that the law was “neutral and generally applicable.” But even though it did not single out particular religions, it is hard to see how the Colorado ban on SOCE was neutral if since it involved viewpoint discrimination against strong religious doctrine (explicitly permitting encouragement of identification with the opposite sex, while forbidding encouragement of identification with one’s biological sex).

A brief from lay Roman Catholics likewise held that professional speech is not free and stressed that SOCE is abuse. Following out the brief’s arguments, traditional Christianity itself, and not merely the condemnations of LGBT inclination and behavior, is abusive, because it prescribes a painful path to salvation, which can be exceptionally painful for LGBT inclined persons. Since Kaley Chiles is endeavoring to build a bridge between Christianity and modern therapy, should ideas Colorado holds to be abuse be censored from her speech? Professional speech, however, is not in fact exempt from the First Amendment, and claims in this brief and others that licensure makes an exception to freedom of speech are false, because overcoming homosexuality and transgenderism is not incidental to the counselor’s work, as the NIFLA decision would require, but central when providing counseling to overcome homosexuality or transgenderism that patients request.

The brief of the Trevor Project, the American Foundation for Suicide Prevention, and the National Alliance on Mental Illness relies in part on stories of personal pain during SOCE. Typical is story recounted on pages 9-10 of the brief in which a subject said that SOCE “takes something inherent in who a person is and tells them … that’s wrong and it needs to be fixed.” But homosexuality is contrary to the intent of sex, which is the union of male and female for procreation, and reasonably the creation of a natural family, bound together by the intimacy of monogamous, opposite sex intercourse. Hearing painful ideas simply does not establish injustice and thus should not be considered “harm.” The brief also relies on surveys of LGBT youth. But these will naturally be hostile to SOCE.

Other briefs likewise focus on personal pain as harm. Parents of Conversion Therapy Participants had more stories to recount, and maintained that the level of judicial scrutiny employed in adjudicating the case did not matter, because the state had an interest in preventing the hurt feelings of minors.

The brief from Former Conversion Therapy Leaders lists leaders of the ex-gay movement who have renounced SOCE, including Alan Chambers, formerly head of Exodus International, as well as recounting the collapse of that organization. As with previous brief, these arguments fail Biblically and legally. They fail Biblically, again because Christ prescribed the narrow gate to salvation. Neither the involuntary nature of our sinfulness (“I just can’t help it”) nor the pain of repentance and sanctification are excuses for sin. The arguments of this and the previous brief also fail legally because there is no First Amendment exception for painful speech, as the Snyder v. Phelps (2011) case shows (which concerned Westboro Baptist Church members picketing a military funeral).

Another brief from the Conversion Therapy Survivor Network maintains that minors may feel compelled by their parents to submit to SOCE treatments. Parents or guardians, however, normally have a child’s best interest at heart. Care and direction of minor children must rest with some adult or adults. This is really a claim of emotional harm. Again, painful speech is not an exception to First Amendment coverage, if it were, free speech would mean little. Speech that offends no one really doesn’t need protection.

Finally, a brief from the Williams Institute, a major pro-LGBT policy and research organization at UCLA relies on state’s power of licensure, and the “medical consensus” against sexual orientation change therapy. As noted above, Kaley Chiles’s treatments are entirely speech therapy; she does not prescribe medicine or any physical interventions. Counseling against homosexuality or transgenderism is not incidental, but fundamental to her work where sexual orientation change or help with identifying with one’s sex is requested.

Williams Institute also advances the “social stigma” argument, although clearly opposition to homosexuality and transgenderism is above all rooted in religious doctrine, as well as the obvious use of sex contrary to its biological function, and awareness of allied diseases, both physical and reasonably, given the attempted alteration of human design, psychological. But even if stigma were the moving force behind SOCE, that would not overcome the arguments from freedom of religion and freedom of speech. Hurt feelings (presented in this brief as “minority stress”) do not establish injustice. However painful and humiliating they might be, freedom of religion and speech must prevail in any free society. And above all, Christians are obligated to give others the whole counsel of God (Acts 20:26-28).

Important briefs supporting Kaley Chiles’s right to counsel freely on LGBT issues, and concluding remarks, will be presented in a subsequent article.