Written by: Lindsey Oliver
On Thursday, September 12, 2024, the Tenth Circuit Court of Appeals ruled that a Colorado law banning conversion therapy for minors is constitutional. The ruling comes after a challenge to the law in 2022 by a practicing mental health professional. It was claimed that the ban violated the First Amendment right of free speech. According to the Tenth Circuit, however, the law primarily regulates professional conduct, not speech, and therefore is not unconstitutional.
The ban is just one aspect of Colorado’s Mental Health Practice Act, which has created state authorities to regulate the mental health care profession. Governor Jared Polis, the nation’s first openly gay elected governor, signed the Minor Conversion Therapy Law (MCTL) into law in May of 2019. The MCTL prohibits mental health care providers from engaging in conversion therapy with clients under the age of eighteen. Under the MCTL, conversion therapy is defined as “any practice or treatment by licensee, registrant, or certificate holder that attempts or purports to change an individual’s sexual orientation or gender identity.”
While members of the LGBTQ community and mental health proponents saw the ban as a massive step in the right direction, others were not so pleased. Kaley Chiles, a licensed professional counselor, felt the law was an infringement on her constitutional rights. According to her, the “Counseling Censorship Law,” as she refers to it, interferes with her ability to treat clients with “same-sex attractions or gender identity confusion who prioritize their faith above their feelings.” Chiles asserts that she supports clients only with desired objectives, emphasizing that she does not attempt to alter minors’ attractions, behavior, or identity if they do not express a desire for such changes. However, for those minor clients who desire the reduction or elimination of “unwanted sexual attractions,” the MCTL prevents Chiles from engaging.
The courts disagreed with Chiles. In September 2022, a federal district court denied Chiles’s motion seeking a preliminary injunction to enjoin enforcement of the MCTL. Chiles subsequently appealed the decision but was unsuccessful when the Tenth Circuit affirmed the district court’s decision in full.
In making this determination, the Tenth Circuit considered the fact that the Supreme Court has previously held that professional speech is covered by ordinary First Amendment protections. Despite this, the Court has also held that restrictions on conduct which only incidentally burden speech are constitutional. In Planned Parenthood of Southeastern Pennsylvania v. Casey, for example, the Court upheld a law requiring physicians to obtain informed consent from patients before they perform an abortion. The Supreme Court concluded that the informed consent law regulated the practice of medicine, which is subject to regulation by the state. While the regulation imposed minor burdens on speech, it was merely an incidental result. Thus, the law did not violate the First Amendment.
In the present case, the Tenth Circuit recognized that Colorado’s ability to regulate the mental health care profession does not extend to regulating any and all speech by counseling professionals. Nevertheless, the court held that the MCTL is part of Colorado’s regulation of health care, as it applies in the context of mental health professionals offering prohibited treatments to minors. Further, since conversion therapy is a “therapeutic modality” which is conducted using verbal language, the MCTL only involves speech incidentally.
Thus, like requiring physicians to obtain informed consent before performing abortions as in Casey, banning conversion therapy use for minor clients by mental health professionals is constitutional because it is deemed to be a regulation of professional conduct, which only incidentally burdens speech. The Tenth Circuit found accordingly and upheld the district court’s denial of a preliminary injunction. Therefore, although mental health professionals in Colorado may still discuss what conversion therapy is, their views on it, and who can legally provide the treatment to minors, the MCTL does bar a mental health professional from engaging in conversion therapy with minor clients herself.
The MCTL adds Colorado to a list of at least twenty-three other states in the U.S. that have a similar law banning conversion therapy for minors. This outcome is a significant win for the LGBTQ community, as conversion therapy is a “discredited, harmful practice” based on a false idea that being LGBTQ is a mental illness that needs to be cured. The success of the MCTL in the Tenth Circuit could serve as an example for protection of LGBTQ youth nationwide. In the future, it also has the potential to affect the use of conversion therapy for adults, of which there are currently no laws governing. If courts were to consistently uphold state laws like the MCTL, it could pave the way for similar restrictions on conversion therapy for adults. As more states introduce laws like the MCTL, the courts’ responses will be pivotal in determining the future of legal protections for the LGBTQ community.
Sources:
Bernie Pazanowski, Colorado Ban on Conversion Therapy for Minors Survives Challenge, Bloomberg Law (Sept. 12, 2024, 3:36 PM).
Brooke Migdon, Appeals court upholds Colorado conversion therapy ban, The Hill (Sept. 13, 2024, 2:05 PM).
Chiles v. Salazar, No. 22-1445 (10th Cir. 2024)
Colorado’s Conversion Therapy Ban Goes Into Effect Today, One Colorado (Aug. 2, 2019).
Darryl Coote, Appeals court upholds Colorado’s ban on conversion therapy for minors, United Press International(Sept. 13, 2024, 12:32 AM).
H.B. 19-1129, Prohibit Conversion Therapy for a Minor, ACLU Colorado (2019).
H.B. 19-1129, 72d Gen. Assemb., Reg. Sess. (Colo. 2019).
Mira Lazine, Conversion therapist sued to be able to convert LGBTQ+ kids. A federal court just said “no.,” LGBTQ Nation (Sept. 16, 2024).