This week, the U.S. Supreme Court struck down Colorado’s prohibition on licensed mental health providers conducting gender and sexuality “conversion therapy,” a decision that could limit state medical boards’ ability to regulate healthcare practices involving speech, according to legal experts. The ruling’s impact could extend beyond LGBTQ+ issues to other forms of talk therapy, telehealth, and medical guidance on topics like Covid-19, vaccines, and reproductive health.
The case was brought by therapist Kaley Chiles, who focuses on talk therapy without prescribing medication or having physical contact with patients. The majority of the justices concluded that the Colorado statute infringed on Chiles’ freedom of speech based on her viewpoint. In an 8-1 decision, the court remanded the case to a lower court for more rigorous judicial review, potentially leading to the ban’s nullification.
“The new boundaries set by the Chiles case are still to be fully understood,” commented Carmel Shachar, faculty director of Harvard Law School’s Health Law and Policy Clinic. “It seems to diminish the power of state medical boards.”
The court differentiated therapy as “speech” rather than professional behavior, a move that Shachar suggests might rationalize the court’s previous decision allowing Tennessee’s ban on gender-affirming treatments. The decision frames the law as viewpoint discrimination, specifically targeting attempts to alter someone’s LGBTQ+ identity, which the First Amendment rarely permits.
Justice Neil Gorsuch, in the majority opinion, stated, “Her speech does not become conduct just because the State may call it that,” referring to Chiles. “Nor does her speech become conduct just because it can also be described as a ‘treatment,’ a ‘therapeutic modality,’ or anything else.”
Experts suggest that by designating talk therapy as “speech” and attributing the ban to viewpoint discrimination rather than a demonstrable risk of harm, the ruling might influence how state medical boards govern certain healthcare practices and the authority of care standards.
The ruling’s implications will likely be explored through future legal challenges. Potential cases could arise “anywhere that there’s a restriction on clinician speech,” according to Shachar.
The Colorado statute explicitly stated that clinicians could lose their licenses for attempting to alter a person’s sexual orientation or gender identity. Although evidence indicates these efforts are ineffective and harmful, Chiles’ legal team argued that existing research does not specifically address speech-based practices.
“This decision offers significant protection for medical professionals providing services based solely on verbal communication against state regulation,” Shachar noted.
It applies to various clinicians licensed for talk therapy, but could also prompt challenges from doctors in states restricting abortion counseling.
“How the Chiles decision applies in different contexts is uncertain,” Shachar remarked. If a doctor advises on a surgical option they won’t perform, is that speech or conduct? The decision’s classification of the law as viewpoint discrimination could limit its relevance in such situations. “But it does allow for claiming, ‘I’m just talking,'” Shachar said.
Some clinicians are already challenging regulations, particularly in interstate telehealth. Therapy and consultations, which might only involve conversation, can be conducted via telehealth. Currently, two cases in California and New Jersey challenging telehealth regulations are in federal appeals courts. Plaintiffs in both cases have cited First Amendment concerns likely bolstered by the Chiles decision. The Cato Institute, a libertarian think tank, has voiced support for the California challenge, criticizing the state’s “speech-chilling licensing regime.”
Justice Ketanji Brown Jackson, the sole dissenting voice in the Chiles case, warned that the ruling “opens a dangerous can of worms” that could hinder States’ ability to regulate medical care and potentially endanger public health.
Jackson also criticized the designation of the law as viewpoint discrimination, arguing that healthcare regulation cannot function effectively unless its regulators can make choices.
The Supreme Court’s majority dismissed the idea that the Colorado law was akin to typical medical regulation. “As applied to Ms. Chiles, the State seeks neither to regulate her speech incident to any conduct, nor does it seek to compel disclosure of factual and uncontroversial information,” Gorsuch wrote. “Instead, it seeks to silence a viewpoint she wishes to express.”
The majority opinion and Justice Elena Kagan’s concurring opinion emphasized the significance of a “free marketplace of ideas,” even in medicine. However, Shachar suggested that such a marketplace might protect physicians spreading anti-vaccine information.
Children’s Health Defense, a group skeptical of vaccines and once led by Robert F. Kennedy Jr., highlighted in a blog post that the Chiles ruling could aid two ongoing medical free speech lawsuits they have filed. One case argues that the California medical board targets doctors promoting Covid misinformation, while another claims that a Washington state medical board policy on Covid misinformation violates doctors’ free speech rights.
Rick Jaffe, an attorney involved in both cases, told the CHD blog, “The Supreme Court just held that physician speech is fully protected even when the speech is the treatment itself.” The California case, in particular, “involves physician speech that isn’t even treatment, just information and recommendations.” He anticipates a favorable outcome.
Currently, the ruling seems to apply exclusively to laws or government regulation, allowing for other enforcement methods like malpractice actions or discipline from professional societies or employers. However, this leaves patients responsible for seeking redress after harm has occurred.
Clinicians and LGBTQ+ advocates challenged the notion that therapy is not professional conduct, stressing that it can have significant effects—both beneficial and harmful—on patients. “Our job as licensed providers is not to digest whole the goals of our clients,” said Julia Sadusky, a Catholic therapist, during a media briefing. “We’re meant to bring expertise, education and collaborate with our clients on treatment goals.”
The American Psychological Association also voiced concern over the extensive impact the decision could have on therapy regulation.
“It raises a lot of alarm bells because if talk therapy is speech, it limits the ability to regulate what these professionals say to their patients,” stated Rachael Soule, the APA’s director of business regulations and independent practice. “And how broad can that go?”
“The court majority… has, in effect, opened the door to protecting any harmful or toxic form of persuasion or therapy on these grounds,” wrote Victor Reus, a psychiatrist and distinguished professor emeritus at the University of California, San Francisco, in an email. “There was widespread alarm at AI programs encouraging adolescent thoughts of suicide, but it now appears that this might be acceptable if a human therapist acted in the same manner.”
