How in the world was the Supreme Court’s awful conversion therapy ruling 8–1?

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The Supreme Court delivered a major blow to one of the triumphs of the LGBTQ+ rights movement on Tuesday, imposing stringent constitutional restraints on laws that bar professional counselors from attempting to change a minor’s sexual orientation or gender identity. These measures, enacted by more than half the states, shielded children from a discredited and abusive practice that fails to achieve its aims while inflicting serious, lasting psychological harms. Now, by an 8–1 vote, SCOTUS has held that, under the First Amendment, such protections are “presumptively unconstitutional” as applied to “talk therapy,” severely restricting their scope. Even the liberal Justices Sonia Sotomayor and Elena Kagan signed onto this sweeping opinion.

What’s most frustrating about the court’s decision in Chiles v. Salazar—aside from its devastating real-world consequences for LGBTQ+ youth—is its profound hypocrisy masquerading as principle. Justice Neil Gorsuch’s majority opinion praises itself for preserving Americans’ “inalienable right to think and speak freely” by rejecting Colorado’s alleged “effort to enforce orthodoxy in thought or speech.” But as Justice Ketanji Brown Jackson explained in her lone dissent, the majority really took sides in the culture wars: It affirmed the constitutional rights of anti-LGBTQ+ therapists while continuing to disregard the rights of trans-affirming doctors, abortion providers, and other medical professionals disfavored by this court. More ominously, Jackson wrote, the majority “appears to have made this momentous decision without adequately grappling” with its “potential long-term and disastrous implications” for all manner of medical regulations, which are suddenly vulnerable to a First Amendment attack.

“Because the majority plays with fire in this case,” Jackson warned, “I fear that the people of this country will get burned.”

LGBTQ+ children will feel that burn first. Almost 30 states have curbed or outlawed “therapy” that seeks to change minors’ sexual orientation or gender identity—that is, to make them stop being gay, bisexual, or transgender. These measures take the form of professional licensure rules, subjecting therapists to fines (and eventually loss of license) if they try to “turn” an LGBTQ+ minor straight or cisgender. Nonprofessional counselors, including family and clergy, can still engage in this conduct, as can professional counselors outside of their paid practice. Every major American medical association to consider this issue has come out in opposition to “conversion therapy” for youth and endorsed its prohibition. These groups have explained that it is impossible to change a person’s identity in this way and deeply unethical to try. Survivors of the practice have attested to its inefficacy and dangers, including a heightened risk of suicide.

Anti-LGBTQ+ advocates, however, have long argued that these laws are not legitimate medical regulations, but rather invidious censorship that violates the First Amendment. So the far-right Alliance Defending Freedom, which rejects the validity of transgender identities and supports the criminalization of homosexuality, engineered Chiles v. Salazar as a Supreme Court test case. ADF argued that its client, a Colorado counselor named Kaley Chiles, has a First Amendment right to disregard the state’s conversion therapy ban and attempt to “convert” her LGBTQ+ patients. Colorado argued that its statute does not meaningfully implicate the First Amendment because it regulates conduct and only incidentally burdens speech. A federal appeals court agreed, upholding the state’s law under a lenient standard of review.

On Tuesday, the Supreme Court sided against Colorado, reversing the appeals court’s decision. Writing for every justice but Jackson, Gorsuch declared that Chiles’ talk therapy is “the quintessential form of protected speech.” He rejected the state’s argument that speech carries fewer First Amendment protections when delivered as a medical treatment. Chiles’ therapy is not conduct at all, Gorsuch wrote, but pure “expression.” And Colorado’s law censors that expression “based on viewpoint,” allowing her to affirm LGBTQ+ patients’ identities but not to critique or reject them. Thus, the state “seeks to silence a viewpoint she wishes to express.” This kind of “viewpoint discrimination,” Gorsuch concluded, is “presumptively unconstitutional,” and must survive strict scrutiny, meaning it is “narrowly tailored to serve compelling state interests.”

After this wind-up, the reader might expect Gorsuch to declare that Colorado’s law does not pass strict scrutiny and therefore violates the First Amendment. But he did not. Instead, having walked right up to that point, he stepped back, and sent the case back down to the appeals court, directing it to apply the test instead. He strongly implied that the Colorado ban, and others like it, would not survive this review “as applied” to talk therapy. But he left the question open for the appeals court to answer.

Why? In theory, the majority might have felt it was proper for the lower court to take the first stab as a matter of appellate procedure. But in other cases, SCOTUS has had no problem holding that a lower court applied the wrong First Amendment standard to a law, then immediately applying the correct standard to invalidate it. Perhaps Sotomayor and Kagan were only willing to join the majority if it stopped short of that step. It’s also possible that the two justices negotiated to have the majority focus on Colorado’s alleged discrimination against “viewpoint” rather than “content.” Kagan, joined by Sotomayor, wrote a brief concurrence arguing that this distinction was not academic, because content-based speech restrictions are not subject to quite as “rigorous” review. Had Colorado “enacted a content-based but viewpoint-neutral law,” Kagan wrote, “it would raise a different and more difficult question,” allowing the court to “recognize complexity and nuance.”

It is, frankly, difficult to parse this concurrence. What would such a law actually look like? Would it bar licensed therapists from any discussion of a minor’s sexual orientation or gender identity—meaning a counselor could neither affirm nor reject their LGBTQ+ identification? If so, why would any state want to do that? Outlawing LGBTQ-affirming therapy would itself hurt children and defeat a key purpose of these laws. Maybe Kagan sought to prevent the majority opinion from undermining countless other state laws that restrict speech in the medical context. Her concurrence is too cryptic, though, to be of much use to lower courts trying to make sense of Gorsuch’s maximalist rhetoric.

Jackson’s dissent is far clearer. Colorado’s law, she explained, “restricts treatment-related speech uttered by medical professionals only as part of a larger regulatory scheme aimed at ensuring that providers tender high-quality medical care to patients.” In other words, Chiles may be engaged in “expression,” but that expression is a medical treatment that Colorado has every right to regulate. (Colorado imposes no regulations on this speech outside of formal medical practice.) The state is not targeting “speech as speech,” but a range of services that include verbal communication. And “why wouldn’t such speech-based medical treatments be subject to reasonable state regulation like any other kind of medical care?”

The justice did not invent this concept; it is rooted in the Supreme Court’s own decision in Planned Parenthood v. Casey, in a part of the opinion that was not overturned by Dobbs. There, the court upheld a law that ordered doctors to provide anti-abortion propaganda to a patient before terminating her pregnancy. It found that this requirement passed First Amendment muster because it regulated speech “only as part of the practice of medicine.” In other words, it was one part of a broader abortion regime, and should not be plucked out and assessed as a standalone regulation of expression. The same is true here, Jackson wrote: Colorado outlawed all kinds of “conversion therapies,” ranging from physical interventions (like electroshock) and “counseling conversions.” Under Casey, the state had every right to regulate therapists’ speech as one component of a larger law regulating the medical profession.

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Yet anti-LGBTQ+ therapists now enjoy a First Amendment right that is denied to abortion providers. But as Jackson pointed out, the inconsistency runs deeper. After Chiles, parents who seek to “convert” their transgender children have a constitutional right to do so. But thanks to last year’s decision in Skrmetti, parents who seek to affirm their transgender children with medication have no such right. States can ban gender-affirming medication but evidently cannot ban anti-transgender talk therapy. And the majority does not explain why anti-LGBTQ+ speech receives heightened protections when other viewpoints do not. Surely, Jackson wrote, a state can direct doctors to discourage, and not encourage, smoking cigarettes. It can prohibit doctors “from telling an anorexic patient to eat less” while allowing them to recommend eating more. It can stop doctors from encouraging patients to end their lives. These laws, too, censor speech on the basis of the state’s preferred viewpoint—in Gorsuch’s words, they “enforce orthodoxy.” Why is it, then, that nobody seriously argues that they’d violate the First Amendment, too?

Then there are the larger implications of the court’s decision for medical licensure and malpractice laws. States, Jackson noted, have long assumed the power to punish medical professionals for what they say in addition to what they do. They have closely regulated the provision of medical advice, for instance, and authorized malpractice suits when that advice leads to harm. If a doctor tells a patient not to get a cast because he believes God heals broken bones by himself, can he wield the First Amendment to defeat the patient’s lawsuit? Does a state “enforce orthodoxy” when it insists upon swift treatment for bone fractures? Could a patient sue a doctor who counsels against the measles vaccine in the midst of an outbreak? Or would such a suit punish the doctor for their “expression” by taking sides in an active debate?

The reality, Jackson wrote, is that medical regulations cover a vast range of speech that is now presumptively protected by the Constitution. So “the fallout” from Chiles “could be catastrophic.” Some states, for instance, order doctors to “make every reasonable effort to promote the welfare, autonomy and best interests of” their patient. Others require “humane and dignified treatment” while outlawing services performed in an “incompetent” or “cruel manner.” After Tuesday, “these kinds of regulations become unenforceable if the healthcare provider risks harming patients with their speech.” Doctors who use speech to harm their patients “can now assert a First Amendment right to carry on, regardless of these standards.”

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“To put it bluntly,” Jackson continued, “the court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers.” In a “worst case scenario,” the nation’s medical system “unravels as various licensed healthcare professionals” begin “broadly wielding their newfound constitutional right to provide substandard medical care” that takes the form of speech. “It is baffling that we could now be standing on the edge of a precipitous drop in the quality of healthcare services in America,” the justice concluded. “But the court sees fit to bring us one step closer to that fate today.” And by an 8–1 vote at that.

The best-case scenario is, in a way, just as disturbing. It is hard to believe that the majority truly wants to jeopardize all the laws that Jackson highlights. More likely, the conservative justices have a unique hostility toward pro-LGBTQ+ protections, and concoct bespoke reasons to strike them down—rules that are not applied to laws that these justices favor. We saw this move in 2023’s 303 Creative v. Elenis, which undermined another Colorado law protecting LGBTQ+ people from discrimination in the marketplace without fully dismantling all civil rights law. And we could see it again in Chiles. This time around, Kagan and Sotomayor may have sought to mitigate the damage rather than take a loss on the chin. But Jackson’s pessimism gives us every reason to fear that her colleagues have crafted a doctrine that lets them impose their own orthodoxy in the name of free expression.

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