What’s at stake in the Supreme Court’s therapy speech case

• The U.S. Supreme Court recently heard oral arguments in a challenge to a Colorado law requiring therapists to affirm the sexual orientation and gender identity of minor clients.
• A number of justices expressed concern that the law constitutes unconstitutional viewpoint discrimination against messages disfavored by the state.
• The case also raises significant religious freedom concerns highlighted in briefs filed with the Court.

​At the beginning of the U.S. Supreme Court’s term last week, it heard oral arguments in an important case about free speech with implications for religious freedom.

The case involves a challenge to a Colorado law, similar to laws in many other states, that levies fines and revocation of a professional license to mental health therapists who engage in “conversion therapy” with minors. This is defined in the law to include “any practice or treatment . . . that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” The law specifically allows therapy that provides “[a]cceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development . . . as long as the counseling does not seek to change sexual orientation or gender identity.” It also allows “[a]ssistance to a person undergoing gender transition.”

The broad language of the law thus not only applies to coercive actions which would clearly be in the power of the state to prohibit but also “talk therapy.” Thus, a therapist cannot suggest caution to a minor considering “gender transition” but can affirm a minor’s decision to pursue that aim.

The case does not involve the question of which therapeutic approaches to these sensitive issues are most appropriate but whether the state can put limits on what therapists can say to those who come to them for help.

Colorado argues that it has the authority to ban unsafe treatments even if it involves speech. The therapist challenging the law argues that the law censors certain viewpoints. The U.S. Department of Justice has weighed in on the side of the challenger, arguing that the law is a regulation based on the content of a message that triggers the most protective standard for determining whether the government is infringing on free speech.

News reports suggest that, based on questions asked during oral argument, the majority of U.S. Supreme Court justices believe the law may limit therapists’ free speech.

For instance, two of the justices suggested that the law contained a form of “viewpoint discrimination,” in which the government targets the expression of certain ideas for disfavored treatment. As Justice Samuel Alito pointed out to the attorney representing Colorado, the law dictates “opposite results” in a situation where someone seeks to feel comfortable as a gay man and one in which the individual seeks help to lessen sexual feelings that cause him discomfort. This, he explained, “Looks like blatant viewpoint discrimination.”

Although it was not a major theme in the oral arguments, the case also raises important religious freedom concerns. In fact, nearly two dozen amicus briefs were filed in the case raising these concerns.

For instance, a brief filed by policy organizations argued that both therapists and those seeking counseling “are best served by a system that incorporates respect for the[ir] values and conscience.” Religious scholars expressed concern that laws like Colorado’s “will dissuade like-minded people from entering the counseling field or thin the ranks of clinical professionals willing to engage identity issues from” a religious perspective. With these bans in place, the Colson Center argues, “churches and religious organizations are prevented from referring to a licensed counselor minors who need counseling for unwanted sexual or gender identity ideations.”

A very thoughtful brief on behalf of a group of religious organizations pointed out that a ban on counseling consistent with religious teachings about sexuality is “harmful to youth who struggle to cope with such feelings while remaining true to their faith.” It also notes that “[f]orcing licensed religious counselors to choose between their profession and their faith resembles civil disabilities historically imposed to exclude religious dissenters from certain professions.”

Religious organizations and people of faith were influential in developing the robust protections of free speech we are used to. As a result, this case, with strong evidence of government attempts to censor disfavored views, should be straightforward. That in turn can bolster protections of religious exercise so necessary to a functioning pluralism in a culture of strongly contested views about morality, family, and so much else.

Emily Payne, an intern at the Sutherland Institute, provided research assistance for this post.