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Colorado has another date with the U.S. Supreme Court, this time over the state’s prohibition of conversion therapy.
On Tuesday, October 7, the U. S. Supreme Court will hear a First Amendment challenge to Colorado’s statute banning the use of conversion therapy on minors. Conversion therapy, or reparative therapy as it’s sometimes known, is intended to change a person’s gender identity or sexual orientation, and medical groups including the American Medical Association, the American Psychological Association and the American Academy of Pediatrics have deemed it harmful to minors.
Colorado enacted its ban on conversion therapy for minors in 2019, and today 27 states and more than 100 municipalities have banned the practice. But anti-LGBTQ groups have steadily challenged those bans in the courts. In the case going to the Supreme Court on October 7, Kaley Chiles, a Colorado Springs-based Christian therapist, backed by anti-LGBTQ legal group Alliance Defending Freedom (ADF), asserts that the ban infringes on her First Amendment right to free speech.
Chiles initially filed a preliminary injunction against enforcement of the law, known as the Minor Conversion Therapy Law, but the U.S. District Court for the District of Colorado denied her motion. She then appealed her case to the Tenth Circuit Court of Appeals.
The Tenth Circuit Court, headquartered in Denver, upheld the ban, determining that it constitutes a regulation of Chiles’s conduct, not her speech. The Ninth Circuit has also treated counseling conversations as conduct, not speech, but the Third and Eleventh Circuits have ruled that conversion therapy is speech, creating a circuit split, a conflict among the nation’s second-highest courts.
The question before the Supreme Court is “whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause” of the First Amendment.
Chiles and her ADF attorneys ignored repeated requests for comment. Attorney General Phil Weiser, who’s running in the Democratic primary for governor next year, and whose office will be defending the ban in front of the Supreme Court, tells Westword, “The very clear consensus is that the so-called conversion therapy is harmful. It has lasting harm on people, and the type of therapy that is used can often be cruel. We don’t want to let people be harmed by substandard care, so in Colorado, we’ve banned it on a bipartisan basis.” In the 2019 legislative vote on the statute, three Republican state senators and two Republican state representatives voted to approve the ban. Colorado legislators originally introduced the bill in 2015, but the Republican-controlled Senate killed it in committee after it had been passed in the House.
Shannon Stevenson, Colorado’s Solicitor General, will argue the case before the Supreme Court, and “make clear what a radical case this is,” Weiser says, “and also underscore that this is what you might think about as somewhat of a made-up case, because the therapist in this case hasn’t ever practiced the therapy that is banned. The therapist has no evidence that this therapy is actually helpful or even benign.”
Outside of the Christian conservative lobby, there is little question among medical and psychiatric professionals that the practice is harmful. In an “issue brief” on conversion therapy, the AMA notes: “Practitioners of change efforts may employ techniques including: Aversive conditioning (e.g., electric shock, deprivation of food and liquids, smelling salts and chemically induced nausea); Biofeedback; Hypnosis; [and] Masturbation reconditioning.” The nation’s largest association of state and specialty medical societies, the AMA developed model state legislation — after Colorado’s law had passed — to ban “reparative” or “conversion” therapy for sexual orientation or gender identity.”
Dozens of organizations and individuals have filed amicus curiae, or “friend of the court,” briefs in support of each side in the case before the Supreme Court. Supporting the petitioner and the ADF are the United States itself via the U.S. Solicitor General D. Joh Sauer and a slew of Christian associations (the Colorado Springs-based James Dobson Family Institute among them), as well as longtime practitioners like Joseph Nicolosi, Jr., son of Joseph Nicolosi, who was founder and president of the National for Research and Therapy of Homosexuality (NARTH).
Nicolosi Jr. doesn’t precisely use the terminology his father does — he uses the term “reintegrative therapy,” and in his amici brief writes that he is clinical director of a psychological clinic that treats traumatic memories, including those of individuals with unwanted same-sex attractions.” It further states, “Although sexual-attraction change is not a goal of Reintegrative Therapy®, sexual-attraction change is a known byproduct.”
Nicolosi Jr.’s arguments supporting Chiles in this Supreme Court challenge are that bans on conversion therapy are “inherently vague” and that vagueness creates a “chilling effect” on therapists’ speech and practice. His brief also says that conversion therapy bans have led to threats and legal challenges for therapists, and prevent them from providing “evidence-based” treatments, while also hindering research on sexual attraction changes.
But fans of the ban insist you can not “pray the gay away,” noting that conversion therapy is not an evidence-based treatment.
Courtesy Colorado Attorney General’s office
“If you talk to and listen to people who’ve gone through the so-called gay conversion therapy, it’s a painful, harmful experience,” Weiser says. “This is not an abstract point, this is about people’s lives, and that’s why the legislature took action. It’s harmful, it’s cruel, and it has lasting negative effects.”
There are plenty of stories stories supporting this in the amicus briefs for the State of Colorado. Ryan Kendall was raised in Colorado Springs in an evangelical Christian community, where he attended a Catholic high school. When Ryan’s parents discovered he was gay, they went to NARTH. Nicolosi Sr. promised Ryan that his treatment would help him suppress his same-sex desires. “When conversion therapy predictably did not work, Ryan’s parents told him he was abhorrent, disgusting, and evil,” one brief notes. “At 16, severely depressed and contemplating suicide, Ryan dropped out of high school and ran away from home.” He remained estranged from his parents for the next decade.
Nine former leaders, founders and promoters of conversion therapy programs who have now repudiated the practice also filed a brief in support of Colorado’s ban on conversion therapy. “They were not merely participants—they were the architects, leaders, and most vocal advocates of what was once called ‘reparative therapy,’ ‘ex-gay therapy,’ or ‘sexual orientation change efforts’ (SOCE). Few people are more knowledgeable about the ineffectiveness and documented harm of conversion therapy because they witnessed it firsthand and now bear the moral responsibility to prevent future damage,” the brief notes.
“Based on their collective experience as former conversion therapy leaders, amici submit that: (1) conversion therapy is fundamentally ineffective, with former movement leaders acknowledging that 99.9% of participants do not experience orientation change; (2) these practices cause documented psychological harm, including increased suicide risk, particularly among LGBTQ youth; (3) the systematic renunciation by conversion therapy’s own founders and leaders provides compelling evidence of the practice’s harmful nature; (4) conversion therapy undermines rather than strengthens families by creating conflict and damaging parent-child relationships; and (5) regulations protecting minors from these practices align with established professional medical and mental health standards while preserving legitimate therapeutic relationships.”
Even more startling are the amicus briefs from Christians who acknowledge their same-sex attraction but remain celibate in order to comply with what they believe are Biblical teachings — they attest that attempting to pray the gay away or convert their same-sex attraction is futile.
“Throughout the history of the Republic, states have always had the ability to prevent harm to patients and to consumers from substandard care,” says Weiser. “That’s how malpractice law works. We view this [ban on conversion therapy for minors] as part of the responsibility of the state to protect Coloradans. There’s never been a First Amendment right to engage in harmful therapy, which is what this is.”
As the Supreme Court has increasingly become a rubber stamp for the Trump administration’s policies, and the Trump-appointed Solicitor General has filed a brief opposing Colorado’s ban, Weiser’s office could face an uphill challenge.
But Weiser doesn’t sound concerned. “We are believing we’re going to be able to prevail in the court, and that the court’s going to see the importance of protecting the rights of states to ensure that kids and families aren’t harmed,” he tells Westword. “If the court were to rule otherwise, we’d have to see what the nature of the ruling is and what we’d do then, but we know that we’re standing on firm ground, and we’re going to work hard to defend it.”
