US Supreme Court rules conversion therapy ban violates free speech

On 31 March, the US Supreme Court ruled against Colorado’s conversion therapy ban.

In an 8–1 decision, the Supreme Court sided with counsellor Kaley Chiles, ruling that the state’s ban violated her First Amendment right to free speech.

Colorado’s 2019 ban prohibits counsellors from providing “any practice or treatment” [link to Act] to under 18s to reduce same-sex attraction or gender confusion. Breaching the law can result in fines of up to $5,000, as well as suspension or even the loss of a licence to practise.

Chiles argued that she should be allowed to provide professional counselling to young people who want help to feel comfortable in their bodies or who are experiencing unwanted same-sex attraction.

Victory for free speech

The court opinion described the Colorado law as an “egregious assault” on free speech and a clear case of “viewpoint discrimination”, stating: “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.”

Alliance Defending Freedom’s Chief Legal Counsel Jim Campbell, who represented Chiles, called the decision “a significant win for free speech, common sense, and families desperate to help their children”. The organisation added that the ruling will help protect counsellors from similar laws in more than 20 states and over 100 localities across the United States.

Responding to the ruling, Chiles said: “Counselors walking alongside these young people shouldn’t be limited to promoting state-approved goals like gender transition, which often leads to harmful drugs and surgeries. The Supreme Court’s ruling is a victory for counselors and, more importantly, kids and families everywhere.”

A cautionary tale for the UK

The Colorado ban specifically targets professional counselling, but the Governments at Westminster and Holyrood have both pledged conversion therapy bans that would reach into homes and churches.

Legal advice from multiple leading KCs is clear that new legislation in this area could criminalise parents and church leaders who do not conform to the dogmas of the LGBTQ+ lobby. Prayer, pastoral conversations and parental advice that affirm biblical truths about marriage and identity could all fall foul of legislation.

The Australian state of Victoria’s conversion therapy law offers a cautionary tale for the UK. Soon after the ban came into force, the Victorian Human Rights Commission published guidance on how to comply. The guidance prohibits prayers in line with Christian teaching on sin and repentance, requiring instead that LGBTQ+ people be affirmed as “perfect the way they are”. At one point, it even listed as an example of conversion therapy a parent discouraging their child from taking puberty blockers (this was only dropped after public backlash).

Legislators here must not be taken in by activist claims that a conversion therapy law is needed to protect LGBTQ+ people. There are already an array of laws dealing with abuse. What the Colorado and Victoria bans make clear is that, at its core, this is an attack on free speech. It is simply not possible to draft a new law in this area without criminalising ordinary conversations.