The Supreme Court has agreed to hear Chiles v. Salazar, a landmark case that could determine whether therapists in the United States are free to question gender identity ideology when treating children or must affirm it under threat of sanction.
At the centre of the case is Kaley Chiles, a Christian counsellor in Colorado, challenging the state’s ban on ‘conversion therapy’ for minors. Once linked to discredited coercive practices like electroshock therapy, the term has since been radically expanded. Modern bans function as speech codes, dictating what therapists can and cannot say about the causes of ‘gender distress’.
In recent years, the ‘gender affirmative model’ has come to dominate therapy, assuming a child’s self-declared gender identity must be affirmed rather than explored. This contrasts with ‘watchful waiting’, a recognised clinical approach that allows gender distress to be explored over time rather than immediately affirmed. Advocates argue that psychological support, rather than early social or medical transition, should be the first response, particularly for younger children. Too often, conversion therapy bans enshrine the affirmative model in law, mandating unquestioning affirmation while prohibiting any alternative therapeutic approach.
Chiles v. Salazar will test whether such laws safeguard children or restrict professional speech. A similar debate is unfolding in the UK, where Labour has pledged a “full, trans-inclusive conversion therapy ban”, raising concerns that therapists could face legal consequences for failing to affirm a child’s gender identity.
Supporters of conversion therapy bans, including the state of Colorado, argue that these laws protect vulnerable young people from harmful and ineffective practices that exacerbate psychological distress and suicide risk. They also maintain that states have the authority to regulate medical treatments, including talk therapy, in the context of licensed therapeutic settings, which only “incidentally” involve speech. “A professional’s treatment of her patients and clients is fundamentally different, for First Amendment purposes, from laypersons’ interactions with each other,” Colorado officials said.
Opponents, including Chiles and her legal team at Alliance Defending Freedom (ADF), argue that such laws amount to government censorship, restricting private conversations between clients and therapists. They warn the bans are overly broad, compelling professionals to affirm gender identity while silencing alternative therapeutic approaches.
At least 20 states and Washington, DC, ban conversion therapy for minors. California was the first to prohibit it in 2012. While widely adopted in Democrat-run states, these bans have faced legal challenges, culminating in the present case.
The legal battle began in 2022 when Chiles sued Colorado over the 2019 law signed by Governor Jared Polis, who defended it as necessary to protect young people from what he called a pseudoscientific and harmful practice. A federal district court dismissed her challenge, ruling the law regulates conduct, not speech. The Tenth Circuit upheld that decision in 2024 ruling that conversion therapy is a form of professional conduct that states may regulate within the scope of licensed mental health practice.
Not all judges agreed. Judge Harris Hartz dissented, arguing that Colorado’s law engages in unconstitutional viewpoint discrimination, allowing therapists to support gender transition but prohibiting them from encouraging a client to remain in their birth sex. He warned the ruling created a First Amendment carveout for professional speech, which was unjustified and dangerous. His dissent underscored a key legal question: can speech in a professional setting be more heavily regulated than ordinary speech? Courts remain divided.
After losing in the Tenth Circuit, Chiles petitioned the US Supreme Court for review, arguing that lower courts are divided on whether therapy bans are legitimate professional regulations or unconstitutional speech restrictions. The Court’s decision to hear the case underscores the growing legal uncertainty around these laws.
The Third and Ninth Circuits have upheld conversion therapy bans, treating them as regulations of professional conduct. The Eleventh Circuit, however, has taken the opposite approach, striking down such bans as unconstitutional speech restrictions.
In King v. Governor of New Jersey, the Third Circuit acknowledged that the law restricted what counsellors could say to patients but upheld it as a valid regulation of professional practice, arguing the state’s interest in protecting minors outweighed free speech concerns. The Ninth Circuit, in Pickup v. Brown and Tingley v. Ferguson, took a similar stance, treating such bans as regulating conduct rather than speech, thus avoiding heightened First Amendment scrutiny.
The Eleventh Circuit took the opposite view. In Otto v. City of Boca Raton, it struck down local bans in Florida, ruling they were content-based speech restrictions that could not survive strict scrutiny. The panel (Judge Britt Grant, joined by Judge Barbara Lagoa) emphasized that talk therapy consists entirely of speech, and banning it on the basis of content – prohibiting certain views while allowing others – was a direct government intrusion into expressive freedom.
The Eleventh Circuit’s decision drew heavily from the Supreme Court’s ruling in National Institute of Family and Life Advocates (NIFLA) v. Becerra, which rejected the notion of “professional speech” as a lesser-protected category under the First Amendment. In NIFLA, the Court struck down a California law requiring pro-life pregnancy centres to provide information about abortion services, dismissing the idea that professional speech should receive weaker constitutional protection. Writing for the majority, Justice Clarence Thomas stated unequivocally: “This Court has not recognized ‘professional speech’ as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by professionals.” The ruling cast doubt on the Third and Ninth Circuits’ reasoning, rejecting the notion that professional speech receives weaker First Amendment protection.
The legal and ethical questions at the heart of Chiles v. Salazar have clear parallels in the UK. In October 2024, Labour announced the creation of an Office for Equality and Opportunity, tasked with delivering the party’s manifesto pledge for “a full, trans-inclusive ban on conversion practice”. The proposal has since faced sharp criticism from clinicians, legal experts, and free speech advocates, who warn it could criminalise exploratory therapy and deter therapists from fully engaging with gender-distressed patients.
A cross-party coalition of MPs, former Tavistock clinicians, and legal experts has warned that a broad ban could leave therapists legally vulnerable if they fail to affirm a patient’s gender identity automatically. The Equality and Human Rights Commission has cautioned that, without careful drafting, such legislation could have a chilling effect on clinical practice. Critics argue Labour’s proposal risks conflating exploratory therapy with conversion therapy, making professionals hesitant to question a patient’s self-diagnosis.
Concerns extend beyond therapists. Parents, teachers, and religious figures who discuss gender identity with young people could also face scrutiny. In the Australian state of Victoria, a sweeping law against LGBT “change or suppression” practices took effect in 2021 and is held up by some activists as a model “gold standard”. But official Victorian guidance sparked alarm by making clear that a psychotherapist who doesn’t “unconditionally affirm” a child’s gender identity is committing a crime under that law.
As the UK moves closer to implementing its own conversion therapy ban, the outcome of Chiles v. Salazar may prove instructive. A ruling against Colorado could strengthen arguments that such laws infringe upon free speech and professional discretion. If upheld, it may serve as a precedent for Labour ministers pursuing similar measures. Either way, the ruling will have consequences for the free speech of medical practitioners on both sides of the Atlantic.
There’s more on this story here.
