In Chiles v. Salazar the U. S. Supreme Court recently “affirmed that [psychological] counseling conversations are speech and that states cannot silence viewpoints in the counseling room.” Alliance Defending Freedom, the group representing Kaley Chiles, contends that current Colorado law “bars licensed counselors from saying anything to clients under the age of 18 that ‘attempts or purports to change an individual’s … [currently declared] gender identity.’ Notably, the law only censors speech in one direction. The law enables counselors to ‘assist[]’anyone who is ‘undergoing gender transition.’ So counselors may push young clients toward a gender identity different from their sex, which will often lead to harmful drugs and procedures. But counselors are prohibited from helping clients find peace with their biological sex—even when that is the client’s personal goal. The law threatens severe penalties for counselors who provide this help, including thousands of dollars in fines and even the loss of their license.”
How did psychotherapy become a free speech issue, and why should we care?
Talk Therapy as Professional Conduct
The Court found that Colorado was regulating the content of Ms. Chiles’s speech, though the State and the Tenth Circuit agreed that the law was only regulating “conduct,” “treatment,” or a “therapeutic modality,” which would trigger only a rational-basis or intermediate-scrutiny review. The majority contradicted that view, stating that “Ms. Chiles seeks to engage only in speech, and as applied to her the law regulates what she may say. Her speech does not become conduct just because the State may call it that. Nor does her speech become conduct just because it can also be described as a ‘treatment,’ a ‘therapeutic modality,’ or anything else. The First Amendment is no word game. And the rights it protects cannot be renamed away or their protections nullified by ‘mere labels.’”
A Restrictive Standard of Care
Colorado defines “conversion therapy” to mean “any practice or treatment by a [regulated professional] 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.”
Prohibiting so-called conversion therapy essentially means that only gender-affirmation meets the prevailing standard of care. As a result, providers expressing a different point of view—such as the possibility that a client can change behaviors–are considered to have engaged in unprofessional conduct. Similar laws restricting therapist speech and client self-determination in twenty-two other states and the District of Columbia will likely be affected by this decision
The Importance of Free Speech in Therapy
The 8-1 opinion in Chiles is direct: “Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. . . . [A]ny law that suppresses speech based on viewpoint represents an “egregious” assault on both of those commitments.”
In a concurring opinion, Justice Kagan explains that Colorado’s law “forbids a counselor to provide therapy designed to ‘change [a minor’s] sexual orientation or gender identity.’ At the same time, the law specifically allows a counselor to offer therapy expressing ‘[a]cceptance, support,’ and other affirmation of the minor’s ‘identity exploration.’ So, for example, the law prevents a therapist from saying she can help a minor change his same-sex orientation, but permits her to say that such a goal is impossible and so she will help him accept his gay identity. . . .[T]he law draws a line based on the speaker’s ‘opinion or perspective,’ and thus enables ‘speech on only one side’—the State’s preferred side—of an ideologically charged issue”(citations omitted), while actively suppressing and punishing speech on the other side of the issue by fines and loss of licensure.
Restricting Professional Speech
Justice Jackson alone dissented. She views Chiles’ talk therapy as “professional medical speech,” and because the “regulation of the practice of medicine is pervasively and unavoidably viewpoint based,” she believes that “in the context of medical care, a State can certainly require the medical professionals it licenses to stand on one side of an issue.” She argues that “with respect to professional medical speech, healthcare providers do not have autonomy . . . they are bound by the standard of care and are not generally free to ‘choose the content’ of their message.” (citations omitted)
In recent years, individuals and groups have challenged restrictions on professional medical speech. Kory v. Bonta and Stockton v. Ferguson, respectively, challenge the Medical Board of California and the Washington Medical Commission’s disciplining of healthcare professionals for their speech with patients deemed “misinformation” about COVID-19 or for public criticism of COVID-19 policies. The Ninth Circuit Court has allowed restrictions on such speech, while the Eleventh Circuit has upheld free speech for medical professionals.
Disputes about the Standard of Care and Its Basis
Justice Jackson’s contention is that the standard of care for gender or body dysphoria is well settled. Arguably, she is mistaken. In a brief filed in the Chiles case, Sexuality Researcher Amy E. Hamilton points out that Colorado’s law presumes that “concepts such as ‘sexual orientation’ and ‘gender identity’ are static, stable, and universally understood.” However, according to Hamilton, “The scientific literature disagrees. Over the years, research has consistently shown that sexual behavior and identity, particularly among young people in their teens and 20s, are subject to considerable and even frequent change.” In fact, one study found that “one-in-ten adolescents and young adults reported changes in their sexual orientation over a 2-mopnth follow-up.”
In addition, the brief filed by The International Foundation for Therapeutic and Counseling Choice [IFTCC} contends that, “The Colorado law at issue in this case is just one aspect of an organized effort to suppress access to counseling services that help clients pursue a gender identity that aligns with their biological sex.” IFTCC alleges “that the Colorado law does harm by barring counseling conversations between patients and licensed mental health counselors without scientific basis, compromising freedom of speech and choice and quality of care.”
Lack of Evidence that Counseling Causes Harm
The IFTCC brief maintains that, “At the time Colorado legislators banned counselors from speaking to children and adolescents about feelings of distress or conflict regarding their natal sex to help resolve these feelings, the researchers who opposed such counseling acknowledged there was no research evidence whatsoever that established that counseling directed at becoming comfortable with one’s [biological] sex causes harm. There remains no such evidence supporting Colorado’s law to this day.”
The brief asserts, in contrast, “Studies rated as high quality by a systematic research review for the National Health Service-England (NHS-England) have found gender discordant or dysphoric children and adolescents have markedly high rates of severe mental health problems, identity problems in general, developmental disabilities, trauma from bullying for reasons other than gender presentation or gender or sexual identity, and suicidality, generally beginning before onset of discordant gender identity or dysphoria, seldom after. A counseling approach to resolving gender distress therefore cannot possibly have caused these preexisting problems, but it may well help to address, manage, decrease, or resolve them.”
The IFTCC brief reports that “Major medical and mental health organizations concede gender discordance or dysphoria is not caused by having the brain of the opposite sex. Studies have unanimously found that most children resolve discordant gender identity and gender dysphoria (unhappiness about their sex) by adolescence or early adulthood, and emerging research reflects that counseling helps them do so. Regrettably, Colorado law deprives gender dysphoric patients who could benefit from counseling conversations to help them overcome their dysphoria and become comfortable with their own bodies, removing a potential option to avoiding costly and life altering physical (i.e., surgical and chemical) interventions with known deleterious side effects.”
What Comes Next
Justice Jackson did not merely disagree with the majority opinion of the high court: she called it “baffling” and “irrational.” The Justice who cannot tell us what a woman is, believes she can tell the Court and the public what kinds of speech are “dangerous.” Some court watchers, such as law professor Daniel Harawa, believe that Justice Jackson’s sharp criticism of the more conservative members of the court may be a means of attempting to rally public opinion, “naming threats as she sees them so that civic actors—not judges—can respond.” Perhaps she is looking ahead to the petition asking the Supreme Court to review the lower courts’ decision in Kory V. Bonta. In that case, lower courts found that the First Amendment does not protect physician communications with patients. Those decisions allowed the Medical Board of California to threaten “California physicians with professional discipline for their viewpoint speech contrary to the mainstream Covid narrative.”
Restricting Professional Speech Offends the Constitution and Is Bad Policy
The majority opinion warns that the logic of the State and the dissent could only lead to bad results. “Today, tomorrow, and forever, too, any professional speech that deviates from ‘current beliefs about the safety and efficacy of various medical treatments’ could be silenced with relative ease. It is a consequence Colorado freely acknowledges. And one the dissent embraces.” Justice Gorsuch wryly asks, ”So what if that kind of reflexive deference to currently prevailing professional views may not always end well?”– referencing the Court’s 1927 decision that compulsory sterilization of persons the Virginia statute deemed feeble-minded or unfit was constitutional. (citations omitted)
The answer to that rhetorical question is clear in the majority opinion: “Fortunately, that is not the world the First Amendment envisions for us. Licensed professionals ‘have a host of good-faith disagreements’ about the ‘prudence’ and ‘ethics’ of various practices in their fields. Medical consensus, too, is not static; it evolves and always has. A prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow. Far from a test of professional consensus, the First Amendment rests instead on a simple truth: “[T]he people lose” whenever the government transforms prevailing opinion into enforced conformity.
