Free Speech Victory for Counselors – Part 2

An earlier article discussed the recent Chiles v. Salazar case, in which the U.S. Supreme Court determined that Colorado (and, at least potentially, any jurisdiction) cannot prohibit psychotherapy involving only speech which is aimed at reducing or eliminating same-sex attraction. Speech by professionals is protected under the First Amendment, as it is for laymen. The article considered, in particular, briefs to the court supporting Colorado, and the “medical consensus” they claimed against any form of “speech only” therapy to correct same-sex attraction or identification with the opposite sex (transgenderism), even when requested by patients.  This article will look at arguments from briefs supporting Kaley Chiles, the Colorado Licensed Professional Counselor (LAC) who brought the pre-enforcement challenge against Colorado’s Minor Conversion Therapy Law. The law prohibited licensed counselors (psychologists, psychiatrists, LACs, etc.) from engaging in sexual orientation change efforts (SOCE), which critics of this practice refer to as “conversion therapy” with minors.  

SOCGICE and the Professional Consensus

Probably the most notable argument made, pointed out by conservative-aligned but not specifically religiously affiliated organizations, was that however strongly the respected medical organizations asserted a conclusive consensus that sexual orientation change efforts (SOCE), or sexual orientation change and gender identity change efforts (SOCGICE)  is ineffective and harmful, the documentation they provided included frank and not infrequent admissions that there are no scientifically rigorous studies showing that SOCGICE is ineffective or harmful. The confident assertions appear to be based on anecdotes and tying speech only therapy to coercive, and in some cases gruesome, physical interventions used to change sexual orientation decades ago, when there was a strong public and medical consensus against homosexuality (which was criminal, at least as a sexual activity, in all states before 1961). Another crucial point is that with the addition of transgenderism to the LGBT acronym, a licensed professional counseling a minor to identify with his or her biological sex, however strongly desired by the patient, was illegal in Colorado.  

The Becket Fund for Religious Liberty identified the true question in the Chiles case as “the least restrictive means of protecting children from harm.” Banning SOCGICE does not do this, as the law pushes children toward “gender transitioning,” and the now (sadly) familiar approach of social transitioning, puberty blocking drugs, cross-sex hormones, and finally surgery to alter sexual anatomy (really sexual mutilation). It observed that both the 2024 Cass Review in Great Britain, and the 2025 Health and Human Services report on the Treatment for Pediatric Gender Dysphoria in the United States found “no good evidence” that “gender affirming care” improves mental health outcomes. And importantly, Becket pointed out, “gender transitioning” carries “increased likelihood of sexual dysfunction, infertility, coronary artery disease, liver dysfunction, and cancer.” Becket further observed that Colorado’s Medicaid program will pay for “cross-sex hormones, mastectomies, and genital surgeries – permanently stripping young girls of the opportunity to ever bear or nurse children. According to Colorado, children can safely make those momentous decisions. But it is too dangerous for a child even to talk with a counselor who tells her that her body is a healthy gift from God. That is not only backwards and harmful but also a violation of the Free Speech Clause.”

Becket also noted that both the Cass Review and the HHS report have identified counselling bans “as a significant barrier to care for children with gender dysphoria, chilling counselors who would otherwise offer compassionate counseling to help children resolve their dysphoria without harmful medical interventions.” Uncensored counselling with children or youth who experience distress about their sexual identity is far preferable to immediate affirmation of a minor’s declaration that they do or may belong to the opposite sex, as it helps disclose the causes of the distress, and alleviate it without “irreversible medical interventions.” This is the “cautious approach,” which has “long been standard practice among counselors.”

Importantly for parents faced with the threat of suicide as the only alternative to transitioning, Becket observed that the Cass Review found that “[t]here is no evidence that gender-affirmative treatments reduce … deaths by suicide in trans people.” Consequently, “the suicide myth has now been debunked.” But it is not surprising that suicide should be an issue with sexually confused people, since according to the HHS report “minors with gender dysphoria also experience a disproportionately high rate of co-occurring mental health issues, including ‘depression, anxiety, suicidality, self-harm, and eating disorders,’ and ‘neurodevelopmental conditions like autism spectrum disorder.’”

Finally, Becket observed that “up to 80-95% of minors experiencing gender dysphoria may naturally grow out of it after puberty” and the Cass Review found that “there is ‘no evidence’ that clinicians can ‘reliably predict’ which minors ‘will have longstanding gender incongruence in the future’ and which ‘might regret or detransition at a later date.’” Counselors thus have no way of knowing who in particular will regret irreversible damage to sexual and reproductive function, except that it will be the substantial majority of sexually confused minors seeking help.

And so despite its overall claim of “overwhelming evidence” of the danger of harm in SOCGICE, “Colorado identified no study (good or bad) that focuses on the type of therapy at issue in this case: talk therapy for a minor provided by a licensed mental-health professional.” Thus, “Colorado has presented no evidence that pure talk therapy with a minor is harmful; its evidence was largely based on studies addressing aversive or coercive methods.” But pure talk therapy is exactly what was the point at issue in the Chiles v. Salazar case.“Far from advancing a compelling state interest in protecting children, then, Colorado’s law inflicts harm on vulnerable youth. The Counseling Restriction itself—not Chiles’s speech—is the ‘direct causal link’ with ‘harm to minors,’” Becket declared.

Converting Speech into Conduct

The Family Research Council in its brief, focused on Colorado’s attempt to convert speech into conduct, by claiming it is “professional” speech, which is not protected, or not fully protected by the First Amendment. “If Colorado’s theory were right, states could just as easily pair licensing with speech requirements on journalists and thereby control what is printed in newspapers, said on television, and posted on blogs,” FRC said. But this strategy has already been ruled out by earlier Supreme Court precedents, particularly NIFLA v. Becerra (2018), which ruled out California’s attempt to require forced speech of crisis pregnancy centers, requiring them to post information about the availability of abortions.

FRC also noted that the American Psychological Association’s sweeping claims of overwhelming evidence of the ineffectiveness and harm of SOCGICE were unsupported by the studies that it cites. These studies “did not focus on talk therapy or control for relevant variables.” FRC also noted what Becket did, that APA maintains that “children cannot provide informed consent to simply talking in therapy. Yet it told this Court in United States v. Skrmetti” (concerning Tennessee’s law against medical transitioning of minors) “that children could consent to vastly more dangerous and unproven hormones and surgeries that involve a certainty of permanent sterilization.” FRC observed in this connection that the great majority (more than 90%) of children who receive puberty blockers proceed to full “gender transitioning” surgery.  

The brief from the Solicitor General (noted below) agrees with this, saying that “every public health authority that has conducted a systematic review of the evidence has concluded that the benefit/risk profile of [pediatric medical transition] is either unknown or unfavorable.” But, FRC noted, APA “ignored those systematic reviews in Skrmetti, just as it ignores that its own systematic review here” (which found that there is a “‘complete lack’ of ‘rigorous recent prospective research’” about the potential harm of SOCGICE). Essentially, APA and the other professional associations opposing SOCGICE are engaged in a power grab, which involves getting courts “to recognize an exception to freedom of speech when the leaders of national professional organizations declare certain speech to be dangerous and demand deference to their views.” Also like Becket, FRC noted that APA’s “own systematic review” of SOCEGICE in 2009 did not support its claim, made then and today, that the harm of SOCGICE is evidence based.

Thus, FRC said that “APA’s arguments in this case and Skrmetti share a common theme: distorting the scientific literature. In both cases, APA pretends that individual, flawed studies foreclose scientific debate, misrepresenting the body of evidence.” While APA claimed in both cases that “[a] myriad of studies demonstrate that gender-affirming care leads to positive outcomes,” … the “overarching theme” of all the systematic reviews on medical interventions “is the lack of high-quality evidence’ supporting them.”

Ideological Commitment

FRC was helpful in pointing out just how ideological APA has become. It is not embarrassed to present to the public a study with conclusions different from the supporting evidence it contains, perhaps because it “dismisses as a ‘[s]tructural bias’ a lack of appreciation for ‘qualitative and mixed-methods research’—i.e., non-rigorous research reflecting feelings and ‘lived experiences.’ It disdains statistically sound research methods as ‘epistemologies most closely aligned with Whiteness’ and has announced that ‘no one methodological approach is ‘better,’’ and it wants to elevate ‘constructivist, critical-ideological, and other critical paradigms.’”

Further, “APA’s recent ‘Style Guidelines,’ which set forth rules for ‘scholarly communication,’ include a section on bias-free language relying on ideologically driven postmodern concepts … APA admonishes that ‘birth sex’ and ‘natal sex’ (and ‘males’ and ‘females’) are improper because they ‘imply that sex is an immutable characteristic without sociocultural influence’ … Thus, APA requires the use of ‘assigned sex,’ which APA says refers to ‘determination of chromosomes and anatomical structures of the body at birth, which necessarily is interpreted within a sociocultural context.’ APA does not explain how chromosomes differ across ‘sociocultural context.’”

It is very clear that at least part of APA is determined not to budge from its ideological intransigence. FRC observed that “after the Cass Report was published in April 2024, several APA state affiliates prohibited its very discussion on their professional listservs … the Pennsylvania affiliate banished discussion because ‘LGBTQIA+’ members and their ‘allies’ may feel ‘targeted.’”

This concern for the hurt feelings of people involved in the LGBT movement may explain APAs “evidence-free concern with hypothetical harms from talk therapy … APA’s brief suggests that ‘the lack of recent scientifically-valid efficacy studies on the broad range of [therapies] used in recent decades is due in part to the ethical barriers to such research.” According to APA, these therapies should not ever be “studied … because they may cause harm to patients.”

Like Becket, FRC observed that “APA demands respect for patient autonomy if a child wants permanently sterilizing and sexual function destroying ‘gender transitioning,’ but dismisses patient autonomy as ‘simply wrong’ if therapy to re-orient the patient to his or her biological sex is desired.”

Liberty Counsel, a public interest legal organization that advances the freedom of speech, religious liberty, and the sanctity of human life said in its brief that the Court should not uncritically defer to the opinion of “experts” as being science. It held that “this case presents another important question for this Court’s consideration: (quoting Judge Harris L. Hartz, who dissented from the Tenth Circuit Court’s ruling against Chiles). He asked, “whether a court should treat as ‘science’ the pronouncements of prestigious persons or organizations that are not supported by sound evidence.” Indeed, Liberty Counsel said, “this case illustrates a troubling trend whereby government bodies—and by extension, reviewing courts—arbitrarily rely on so-called ‘expert consensus’ to justify infringing the First Amendment rights of persons with which the government disagrees.”

Liberty said that “laws like Colorado’s that ban talk therapy for minors with gender dysphoria and unwanted sexual attractions exemplify the pernicious influence of the ‘cult of the experts,’ a modern phenomenon that aims to reshape the public consciousness by positioning experts as the arbiters of truth while suppressing competing viewpoints.” But “judicial deference to the ‘cult of the experts’ is inconsistent with the First Amendment’s protection of free expression and the demanding evidentiary standard required by strict scrutiny.”

Liberty Counsel dealt extensively with the 2009 APA report on “Appropriate Therapeutic Responses to Sexual Orientation,” which figured largely in the APA brief and the contrary FRC brief. That report concluded that SOCE was ineffective and harmful. But Liberty Counsel, like FRC and Becket, noted the basic problem with this type of argument advanced against SOCE, that it confidently asserts that SOCE is dangerous, and that further scientific debate is foreclosed, but the specific studies it cites in support of this conclusion offers no good evidence of harmful effects, and some subjects found SOCGICE to be helpful.

Even though APA in its 2009 report  found “no scientifically sound studies of recent SOCE that would enable [it] to make a definitive statement about whether or not recent SOCE is safe or harmful and for whom,” the APA task force that prepared the study nevertheless gleaned “some evidence to indicate that individuals experienced harm from SOCE.” But this adverse evidence was based on “early studies” that “documented iatrogenic effects of aversive forms of SOCE.” Liberty said that “clinical counselors, including those who desire to provide counseling prohibited by similar bans, have soundly rejected and condemned aversive techniques for decades.” Even then, the report conceded that there was “a lack of published research on SOCE among children.”

Interestingly, Liberty Counsel observed that “Dr. Nicolas Cummings, the former president of the American Psychological Association, criticized political efforts to prohibit counseling as harmful to clients and counselors.” Cummings was quoted in USA Today as saying that “whatever the situation at an individual clinic, accusing professionals from across the country who provide treatment to fully informed persons seeking to change their sexual orientation of perpetrating a fraud serves only to stigmatize the professional and shame the patient” (“Sexual Reorientation Therapy Not Unethical,” USA Today, July 30, 2013). “Dr. Cummings further criticized political and legal efforts to prohibit counseling as violating the client’s right to self-determination and therapeutic choice: ‘attempting to characterize all sexual reorientation therapy as unethical violates patient choice and gives an outside party a veto over patients’ goals for their own treatment,’” he said.

Liberty Counsel concluded by saying that “the APA Report does not support Colorado’s conclusions that counseling may put young people at risk of serious harm … By imposing exacting standards to dismiss studies showing positive outcomes for SOCE while applying lenient criteria to infer harm, the APA task force betrays an ideologically driven agenda rather than a commitment to objective scientific inquiry …  Judge Hartz aptly compared such government overreach to a ‘Lysenko moment,’ referring to the infamous Soviet scientist whose ideological control over agricultural science suppressed dissenting views and led to disastrous consequences.”

Additional Briefs

D. Paul Sullins, formerly sociology professor at the Catholic University of America and President of the Leo Institute for Social Research and a Senior Research Associate at the Ruth Institute, and Jennifer Roback Morse, founder and President of the Ruth Institute, which focuses of marriage and family stability noted in their brief social science is in the midst of a replication crisis. Also, it has become ideologically dominated on certain topics, particularly sexual orientation, with unrepresentative samples, and exclusion of professionals and research subjects whose inclusion is not conducive to the desired conclusions. Also, “convenience samples” drawn from the homosexually active population, by their nature exclude persons who found sexual orientation change therapy (SOCE) successful but would certainly include people claiming to be harmed by it.

The National Association of Scholars, an association of professors, graduate students, academic administrators and trustees that supports liberal arts education against the continual academic drift to the left in recent decades, said in its brief to the Supreme Court essentially what FRC said. If the state can use credentials to restrict (or even require) speech in the field of counseling, it can do so in any profession (based of course on the political influence with the state of groups wanting speech restricted). “If the state can ban therapists from even talking – with young clients who want to have the discussion – about a potential change in sexual identity or orientation, based on the assertion that such a discussion is ‘harmful’ to minors, it could bar teachers and professors from even presenting the view that such change is possible or desirable (or the ‘incorrect’ side of other issues), even to students in an elective course who want to hear both sides of the issue … The Court can resolve this conundrum, and validate free speech without opening Pandora’s Box, by holding that restrictions on therapeutic speech relating to controversial matters of public concern, and utilizing or advocating approaches which either currently have, or within recent history have had, the support of more than a small fringe of the medical community, are subject to strict scrutiny.”

The Changed Movement, a group of people “who once identified as LGBTQ+ and exchanged that identity for a Christian worldview” said in its brief that “Colorado’s naked censorship of what it denigrates as “conversion therapy” doesn’t merely interfere with the uninhibited marketplace of ideas about sexual-orientation and gender-identity counseling. It seeks to own it lock, stock, and barrel … the personal stories of members of the CHANGED Movement … illustrate, people who sincerely desire help defying their feelings of same-sex attraction or aligning their gender with their biological sex are cut off from good and helpful ideas that improve their lives … the Colorado law denies individuals the right of self-determination when it comes to their own sexual orientation and gender identity by forcing people who want therapeutic help questioning their feelings about those subjects to instead accept the government’s preferred answer.”

The experiences of three young people with gender dysphoria in counseling, and the negative effects of laws like Colorado’s were reviewed to show its danger to sexually distressed or confused people.

A brief from “two dozen legal scholars and philosophers from across the country who teach and write about the Constitution and the First Amendment specifically” likewise pointed out that “there is nothing objectionable to the State in Chiles’ counseling except for the ideas that she communicates.” This, then, is a direct attack on the First Amendment. They very reasonably observed that “if speech could be converted to unprotected ‘conduct’ merely by a governmental assertion (no matter how sincere, or how plausible) that the speech to be regulated causes harm, there would be very little left of the freedom of speech.” Speech that offends no one does not need protection.

The scholars concurred with other briefs in support of Chiles that “this Court has considered and expressly rejected the proposal to recognize precisely the category of ‘professional speech’ from which the Tenth Circuit now seeks to withdraw full constitutional protection … whatever harm patients may suffer comes from the communicative or expressive content of the therapy. A prohibition forbidding such therapy clearly covers ‘speech’; it cannot plausibly be redescribed as applying merely to ‘conduct.’” 

It was observed by this brief that the American Bar Association cannot have legislators enact laws punishing lawyers who disagree with ABA’s positions, and neither should American Psychological Association be able to punish psychologists who disagree with its positions. It also very helpfully and keenly observes that the idea that science has debunked religious condemnation of various sexual behaviors is just that, an idea, and one idea among many that the state may not favor in restricting speech.

Eugene Volokh, a legal scholar specializing in First and Second Amendment law, submitted a brief supporting neither party in the Chiles v. Salazar case, although the content of what he said seemed to favor Chiles. He emphasized that “speech cannot lose its protection just because it is relabeled conduct and then banned. Indeed, this Court has consistently recognized that making ‘conduct’ illegal or tortious abridges free speech when the conduct consists of speech that supposedly causes harm because of what it communicates. Yet it would seem that “what is communicated” is exactly what is found harmful in “conversion therapy” bans.

Volokh also pointed out that “the speech integral to illegal conduct exception only applies to speech that promotes some other crime or tort.” In this regard, “the sign “White Applicants Only” is a threat of tortious conduct (illegal discrimination).” Thus, “speech integral to conduct” cannot be expression itself. Volokh said he had written the only article as of 2016 devoted to carefully explaining this distinction.

Administration Support

The Trump Administration supported Kaley Chiles. In his brief to the Supreme Court, Solicitor General John Sauer said that the question is whether the law “the law operates as a content-based speech restriction” or “merely as a regulation of conduct that incidentally burdens speech.” Supreme Court precedent supplies “a clear answer: Colorado’s law is a content-based restriction” on Chiles speech “because it is triggered by that speech’s communicative content.” In earlier cases, the Supreme Court “has held that even if a law ‘may be described as directed at conduct,’ it operates as a content-based speech restriction, as applied, if ‘the conduct triggering coverage under the statute consists of communicating a message.’”

Citing NIFLA, the United States observed that “a professional conduct regulation that is applied to restrict speech based on its content is thus generally subject to strict scrutiny, even if it also covers non-speech conduct.” and “The MCTL restricts what she [Chiles] may say to her minor clients based on the content and viewpoint of her speech, which generally triggers strict scrutiny.” The brief reiterates that “[s]peech is not unprotected merely because it is uttered by ‘professionals … The Free Speech Clause treats medical treatment consisting solely of speech differently from medical treatment consisting of conduct or conduct mixed with speech.”

Here the brief for the United States, like others supporting Chiles, attacked the idea that “professional consensus” rendered speech as conduct. It said that “evidence of harm caused by non-speech conduct cannot justify a content-based speech restriction.” But evidence of harm seemed doubtful in the United States brief, since “critically, the 2009 APA Report noted that the evidence was particularly lacking with respect to minor patients.”

Briefs in the Chiles v. Salazar case in support of Chiles submitted by religious organizations, or religiously affiliated organizations, and concluding comments, will be reviewed in a subsequent article.

More from IRD:

Free Speech Victory for Counselors – Part 1