Takeaways from the Supreme Court decision on Colorado law banning ‘conversion therapy’ for trans and gay minors

By John Fritze, Devan Cole, CNN

(CNN) — The Supreme Court on Tuesday endorsed a religious counselor’s challenge to Colorado’s ban on “conversion therapy” for gay and transgender minors, saying it likely violates the First Amendment, handing the LGBTQ community another setback in a decision that will reverberate in nearly half the country.

The 8-1 decision, which had conservative and liberal justices in the majority, does not technically strike down the law, but means lower courts will now review it again and apply the highest form of judicial scrutiny. That means Colorado’s law, and others like it, will almost certainly be struck down by lower courts.

Colorado enacted its law in 2019 to protect gay and transgender youth subjected to the scientifically discredited practice of attempting to “convert” their sexual orientation or gender identity. Advocacy groups say roughly half of US states have banned the therapy for minors.

Here are takeaways from the Supreme Court’s decision:

Gorsuch sees robust First Amendment protections for counselors

The case largely broke down along a question of whether therapy is more like a medical practice, which the government can and does regulate, or whether what goes on in a session is speech protected by the First Amendment.

Justice Neil Gorsuch, writing for an eight-justice majority, came down hard on the side of speech.

“Colorado may regard its policy as essential to public health and safety,” Gorsuch wrote. “Certainly, censorious governments throughout history have believed the same.”

But, the conservative justice added, “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.”

Kaley Chiles, a licensed counselor in Colorado, challenged the law on First Amendment grounds. She said she would engage in her “faith-informed counseling” only when clients sought it out. And she disavowed especially controversial practices, such as the use of electric shock therapy or drug-induced nausea. Chiles described her work as helping clients who “have a goal to become comfortable and at peace” with their body.

Chiles and other therapists who engaged in the practice could have faced serious repercussions, including up to $5,000 fines for each violation and ultimately be stripped of their licenses.

When the case was argued in October, a majority of justices signaled they had concerns with the law. Several suggested that the answer for potentially harmful therapy was a malpractice lawsuit, not a preventative law.

A federal district court denied Chiles’ request to temporarily suspend its enforcement, and the Denver-based 10th US Circuit Court of Appeals affirmed that decision in September 2024. Chiles was represented at the Supreme Court by Alliance Defending Freedom, a religious law group that has had considerable success in recent years.

Kagan and Sotomayor joined the conservatives

The court’s decision wound up attracting two members of the court’s liberal wing, Justices Elena Kagan and Sonia Sotomayor.

Kagan wrote in her concurring opinion that the problem with Colorado’s law is that it is based on a viewpoint because it is focused on one side of the debate over trans youth. Therefore, another state could enact a law barring counselors from offering therapy that affirms a minor’s sexual orientation or gender identity.

“Because the state has suppressed one side of a debate, while aiding the other, the constitu­tional issue is straightforward,” Kagan wrote in a short opinion joined by Sotomayor.

“One of the real clues to both the significance and limits of today’s ruling comes from Justice Kagan’s short concurring opinion,” said Steve Vladeck, CNN Supreme Court analyst and professor at Georgetown University Law Center.

“As Kagan explains, the problem with Colorado’s law isn’t that it is based on the content of therapists’ speech, but that it isn’t neutral as to the viewpoint they’re expressing,” Vladeck added. “In other words, at least some of the justices aren’t averse to states regulating the speech of medical professionals; they just have to do it in a way that doesn’t prefer one viewpoint over another.”

Jackson dissents from the bench

In a stinging dissent, Justice Ketanji Brown Jackson said her colleagues were flat wrong to give cover to individuals looking to challenge state conversion therapy bans, which she said were constitutionally permissible even if they incidentally burdened the speech of a health care provider.

“The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel,” Jackson, who was appointed by former President Joe Biden, wrote in her 35-page dissent.

Jackson took the rare step of reading parts of her dissent from the bench, which justices usually reserve for the cases they believe are most significant or they feel the court most got wrong. She warned that the ruling “opens a dangerous can of worms” by undermining states’ rights to regulate medical care.

“We are on a slippery slope now: For the first time, the Supreme Court has interpreted the First Amendment to bless a risk of therapeutic harm to children by limiting the State’s ability to regulate medical providers who treat patients with speech,” she wrote.

“What’s next? In the worst-case scenario, our medical system unravels as various licensed healthcare professionals – talk therapists, psychiatrists, and presumably anyone else who claims to utilize speech when administering treatments to patients – start broadly wielding their newfound constitutional right to provide substandard medical care,” Jackson wrote.

But those arguments found no purchase among the other eight members of the court, and Gorsuch made a point of critiquing a “First Amendment Free Zone” he said Jackson was pushing for.

“The Constitution does not protect the right of some to speak freely; it protects the right of all,” said added. “It safeguards not only popular ideas; it secures, even and especially, the right to voice dissenting views.”

What comes next for Colorado’s law

Gorsuch’s decision leans heavily on language about how Colorado’s law likely runs afoul of the First Amendment, but the court’s ruling technically doesn’t strike down the law.

Instead, it sends the case back to a lower court that will almost certainly do so.

At issue are the “levels of scrutiny” courts apply when determining if a law is unconstitutional. In the Colorado case, a lower court applied the lowest level of scrutiny – known as “rational basis” – and upheld the law. Under rational basis, states can defend a law that potentially infringes on the First Amendment if it can demonstrate that law is “rationally related” to a government interest. In most cases, if courts apply rational basis to review a law, that law will be upheld.

On Tuesday, the Supreme Court said the lower court should have applied what’s known as “strict scrutiny,” that is the highest level of scrutiny – and the hardest to satisfy.

Under strict scrutiny, a government must have a “compelling interest” to enact a law infringing on the First Amendment, such as the safety of minor patients, and it must “narrowly tailor” that law to make sure it doesn’t apply to more people than the government intended.

Laws rarely satisfy strict scrutiny. And so the court’s ruling may well be a death sentence for the law in the end, but one that will ultimately be carried about in another court.

Latest defeat for LGBTQ rights

Tuesday’s decision – coming on Transgender Day of Visibility – was the latest defeat for LGBTQ rights at the Supreme Court and may not be the last this year.

As the court’s 6-3 conservative supermajority has taken an expansive view of the First Amendment and a much narrower view of the 14th Amendment in recent years, it’s repeatedly sided against members of the community in a range of cases.

Last June, the court upheld a Tennessee law banning puberty blockers and hormone therapy for transgender minors, and in 2023, it ruled in favor of a Christian web designer who refuses to create websites to celebrate same-sex weddings because of religious objections.

In a short-fuse decision from November, the court allowed the Trump administration to require the sex designation on US passports to align with a traveler’s biological sex over the objection of three liberal justices.

A similar, quick-turn ruling from earlier this month blocked a California education policy that restricts teachers from informing parents about a student’s gender expression, pausing an approach the state says is intended to protect trans minors from rejection and abuse at home.

But perhaps the most significant decision on LGBTQ rights is yet to come.

The court is expected to hand down decisions in a pair of cases later this year questioning whether states may ban transgender students from playing on sports teams that align with their gender identity. During oral arguments in those disputes earlier this year, a majority of the court signaled it was prepared to uphold the bans.

CNN’s Tierney Sneed contributed to this report.

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