The Supreme Court’s 8–1 decision in Chiles v. Salazar is not the end of the road for the battle over a ban on the discredited practice of “conversion therapy.” As Beth Parlato, senior legal counsel at Independent Women, explained, the justices have now changed how the lower courts must look at Colorado’s counseling law, which could lead to challenges to similar laws in other states.
The dispute in Chiles v. Salazar centers on Kaley Chiles, a licensed counselor in Colorado, who successfully argued that the state’s law banning “conversion therapy” unlawfully censors her ability to speak with the children and families who seek her out by prohibiting her from trying to dissuade children from changing their gender identities or sexual orientations.
The Supreme Court this week rejected the lower court’s framing of the case as a medical or healthcare dispute. Instead, it found the law regulates speech, not medical procedures, because Chiles only engaged in “talk therapy.”
“There were no drugs that were being issued,” Parlato said in an interview with the Washington Examiner. “There was no medical procedure, medical surgery. This was strictly a narrow ruling on First Amendment violation of clear viewpoint discrimination.”
The ruling means that when the case returns to the lower courts, judges will have to treat it as a freedom-of-speech case. Parlato is skeptical the state’s conversion therapy ban will survive.
“It’s basically telling you what you can say and how to counsel,” Parlato said of the law. “You can’t do that. We can’t all be told our beliefs.”
Under Colorado’s law, counselors were permitted to affirm a child’s claimed gender identity or same-sex attraction, but barred from encouraging the child to embrace their biological sex or to explore opposite-sex attraction. For Parlato, that imbalance was key to the ruling in the case.
“When the state censors speech, and basically is telling the counselors that you have to only affirm a child’s gender identity, you cannot do anything else but affirm,” Parlato said. “There’s no other counseling that can happen.”
The lone dissent, authored by Justice Ketanji Brown Jackson, echoed the lower court’s characterization of the case.
“Basically, [Jackson] was going back to the lower court’s argument that this is medical, that this is not just talk therapy … she’s wrong,” Parlato said. “Her two colleagues that generally would side with her, Justice [Sonia] Sotomayor and [Elena] Kagan, they actually sided with the majority.”
Parlato noted that similar counseling restrictions exist in 25 other states and the District of Columbia. She believes the Supreme Court’s ruling in this case could reverberate nationwide as those laws are challenged under the Supreme Court’s new guidance to courts that they must evaluate conversion therapy bans as speech bans, not medical regulations.
Parlato praised the Supreme Court’s decision as a return to realism in how society treats children experiencing gender confusion.
“Studies have shown over and over again that 90% of children grow out of gender confusion or gender dysphoria,” Parlato said. “This decision by the Supreme Court really is rooted in biological reality, in truth and common sense.”
She noted the decision on Chiles v. Salazar comes at the same time as a detransitioner, Fox Varian, won a $2 million decision in a landmark lawsuit against a surgeon and psychologist for facilitating her double mastectomy when she was just 16. Parlato believes this is signaling a broader legal and cultural reassessment of the increase in genital and breast surgeries and cross-sex hormones given to children.
“We’re going back to common sense,” Parlato said. “We’re going back to reality, which is what we need to do to protect our children.”