Chiles v. Salazar

    Issues

    Considering a state’s regulatory authority over professional conduct, does the First Amendment permit states to regulate the content of certain conversations between counselors and their clients?

    Oral argument:
    October 07, 2025
    Court below:
    United States Court of Appeals for the Tenth Circuit

     

    This case asks the Supreme Court to decide whether Colorado’s Minor Conversion Therapy Law (“MCTL”), which prohibits mental health professionals from providing LGBTQ+ conversion therapy to minor clients, violates the Free Speech Clause of the First Amendment. Kaley Chiles, a licensed professional counselor in Colorado, argues that MCTL infringes on constitutionally protected speech by discriminating against certain content and viewpoints. She asserts that Colorado failed to meet its burden of strict scrutiny because the statute does not further a compelling state interest, nor is it narrowly tailored. Patty Salazar, in her official capacity as Executive Director of the Colorado Department of Regulatory Agencies, argues that states have the power to regulate professional conduct, even if doing so incidentally affects speech. Salazar maintains that Chiles’s position undermines a state’s ability to regulate the conduct of mental health professionals. The outcome of this case will also have significant ramifications for the availability of certain treatment methods.

    Questions as Framed for the Court by the Parties

    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.

    Facts

    In 2019, the Colorado legislature added the Minor Conversion Therapy Law (“MCTL”) to the Mental Health Practice Act (“MHPA”), which regulates the practice and conduct of mental health professionals in the state.  MCTL prohibits mental health professionals from providing conversion therapy to minor clients. Conversion therapy, as defined by the statute, includes “any practice or treatment . . . that attempts or purports to change an individual’s sexual orientation or gender identity.”  The statute explicitly excludes from its definition of conversion therapy treatments that provide “[a]cceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development” and “[a]ssistance to a person undergoing gender transition.” The MHPA contains an exemption from any portions of the act, including the MCLT, for anyone “engaged in the practice of religious ministry.”

    The statute empowers professional oversight boards to discipline or take injunctive action against mental health professionals who violate MCTL. Disciplinary actions could include sending a warning letter, placing the practitioner on probation, revoking or suspending the practitioner’s license or certification, denying or revoking an unlicensed practitioner’s listing on Colorado’s unlicensed psychotherapist database, issuing a cease-and-desist letter, or imposing a fine of up to $5,000 per violation. 

    Kaley Chiles is a licensed counselor in Colorado who has worked with adults and minors seeking Christian counseling since 2014. In September 2022, Chiles brought a suit in the United States District Court for the District of Colorado challenging MCTL under 42 U.S.C. § 1983 as a violation of the Free Speech and Free Exercise clauses of the First Amendment. Chiles claims that, prior to the enactment of MCTL, she was able to freely discuss her clients’ experiences with sexuality and gender. Chiles alleges that MCTL prevents her from consensually discussing gender and sexual attraction with clients who, to prioritize their Christian faith, wish to change their gender identity or sexual orientation.

    Chiles sought a preliminary injunction to prevent enforcement of MCTL for the pendency of her suit. The district court denied her request for an injunction, finding that Chiles failed to show a likelihood of success on the merits. Chiles appealed the denial of the preliminary injunction to the United States Court of Appeals for the Tenth Circuit. Patty Salazar, in her official capacity as Executive Director of the Colorado Department of Regulatory Agencies, cross-appealed the district court’s determination that Chiles had standing. The court affirmed the district court’s decision in whole. While the court found that Chiles had Article III standing to bring her pre-enforcement suit, the court also determined that Chiles had not sufficiently demonstrated a likelihood of success on the merits to justify a preliminary injunction. The court held that Chiles failed to show that MCTL would be subject to greater scrutiny than rational basis.

    In November 2024, Chiles filed a petition for a writ of certiorari with the Supreme Court of the United States, appealing the Tenth Circuit decision.  The petition questions whether the First Amendment permits states to regulate the speech of licensed professionals made to their clients because a state can regulate professional conduct. On March 10, 2025, the Supreme Court granted certiorari.

    Analysis

    SATISFYING STRICT SCRUTINY

    Chiles maintains that Colorado’s Minor Conversion Therapy Law (“MCTL”) is a viewpoint-based restriction; therefore the statute is “presumptively unconstitutional” and properly subject to strict scrutiny.  For example, Chiles asserts that MCTL allows counselors to encourage minors to transition genders but prohibits counselors from encouraging minors to accept their bodies or de-transition, constituting a discriminatory restriction on speech. Chiles argues that Colorado (“the State”) did not meet its burden by failing to provide a compelling state interest to justify a content restriction. Chiles asserts that the State also failed to narrowly tailor MCTL to only aversive conduct, as the State singled out one form of counseling while allowing other harmful therapeutic techniques. Chiles further points out that the State did not show sufficient evidence of harm caused by her conversations with patients. Chiles argues that harm flows the other way: MCTL harms minors by privileging pro-transition viewpoints. Chiles concludes that Colorado’s lack of a compelling state interest and failure to appropriately tailor MCTL renders the statute unable to survive strict scrutiny and unconstitutional under the Free Speech Clause.

    Salazar argues that Colorado’s MCTL satisfies any level of scrutiny, including strict scrutiny, because the MCTL is narrowly tailored to serve a compelling state interest.  Salazar maintains that there is a compelling state interest in protecting minors from harmful mental health care. Salazar cites reports from medical experts which suggest that conversion therapy is ineffective and harmful. Salazar further contends that Chiles fails to present any evidence to refute these medical reports. Salazar further argues that there is a compelling state interest in supporting the legitimacy of mental healthcare. Salazar argues that MCTL is narrowly tailored to serve these compelling state interests.  Salazar points out that MCTL only applies in one specific situation: when licensed professionals are treating patients. Salazar clarifies that this means that MCTL does not apply to nonprofessionals, including religious leaders. Salazar further argues that MCTL is the least restrictive way to achieve these compelling state interests. Salazar maintains that MCTL only restricts one specific type of treatment and that healthcare professionals are not restricted by MCTL in any situation beyond providing treatment to a patient. Further, Salazar contends that Chiles has failed to present any alternatives to achieve the compelling state interests in a more narrowly tailored way.

    PROFESSIONAL CONDUCT REGULATIONS

    Chiles argues that the Free Speech Clause of the First Amendment bars the government from restricting speech based on content or viewpoint, even in a professional context. Chiles explains that spoken conversations—such as discussions involving personal beliefs, values, identity, and religion—are protected speech, both inside and outside of a professional context. Chiles states that the only two categories of professional speech which receive diminished First Amendment protection are disclosures of factual information in commercial speech and “regulations of professional conduct that incidentally burden speech.” Chiles asserts that the Tenth Circuit incorrectly categorized MCTL under the latter category. Chiles differentiates permissible professional conduct restrictions that incidentally burden speech from MCTL, which she argues is pure censorship and not a conduct regulation. Chiles explains that MCTL does not incidentally burden speech because it restricts specific ideas. Chiles further contends that although there are alternative platforms and methods for her to express her views, this does not justify a content restriction on her counseling.  Chiles asserts that because speaking to clients outside of a medical setting is not the same type of speech and is less effective than counseling, MCTL reaches too far into the realm of ideological censorship.

    Chiles reasons that labeling speech as “treatment” should not shield it from an ordinary Free Speech Clause analysis. Chiles argues that First Amendment precedent distinguishes between speech and conduct, not treatment and non-treatment. Chiles maintains that her conversations with clients are not analogous to medical procedures where there is precedent for regulation because there is no conduct to be regulated except for her speech, unlike a surgical procedure where states can require the doctor to obtain informed consent, creating only an incidental burden on speech. Chiles elaborates that the First Amendment protects a doctor’s ability to help clients make extremely personal choices about their health—which may include conversations with patients that go beyond professional conduct. Chiles emphasizes that her therapeutic techniques fall within protected doctor-patient discourse, no different than a doctor advising on other controversial topics like the use of contraception or medical marijuana. Consequently, Chiles holds that “speech-incidental-to-conduct rules” do not apply and would allow for unrestrained regulation of ideas in professional contexts in violation of the First Amendment.

    Salazar counters that MCTL is properly categorized as a permissible professional conduct regulation. Salazar explains that MCTL works similarly to state regulations regarding malpractice, which are widely accepted as professional conduct regulations. Similar to malpractice suits, Salazar asserts that talk therapy is a form of medical treatment subject to a legal duty of care, differentiating it from other speech and opening it to reasonable regulation. Salazar argues that MCTL regulates the use of conversion therapy to prevent a dangerous and ineffective treatment technique, not to restrict specific viewpoints. Salazar likens MCTL to other professional conduct restrictions, upheld by the Supreme Court, that involve restrictions on speech such as informed consent. Salazar points out that there is a long history of state laws restricting verbal conversations between medical professionals and their patients when those words violate the standard of care. Salazar explains that MCTL prohibits any therapeutic methods, not just verbal conversations, that aim to change the minor client’s gender or sexuality, because they fall below the medical professional standard of care.

    Salazar argues that MCTL does not impose unconstitutional speech restrictions because the statute does not regulate outside the scope of a patient-provider relationship. Salazar makes a distinction between speech between medical providers and patients and between laypeople for First Amendment purposes. Salazar explains that medical professionals do not have a First Amendment right to violate the standard of care through verbal treatment. Salazar also argues that MCTL does not restrict treatment based on viewpoint. Instead, Salazar maintains that MCTL restricts treatment based on whether the treatment is safe and effective. Salazar asserts that this determination is based partly on the intended outcome of the treatment, not the mental health professional’s viewpoint.

    Discussion

    TREATMENT OPTIONS

    The International Foundation for Therapeutic and Counselling Choice (“IFTCC”), in support of Chiles, argues that Colorado’s statute bans consensual, exploratory counseling to resolve feelings of gender or sexual identity confusion or distress.  IFTCC asserts that utilizing counseling to pursue client-determined goals is an ethically sound practice. Further, IFTCC contends that scientific evidence points to gender identity being a fluid state and that minors largely accept their sex after puberty. IFTCC also expresses concern that limiting a minor’s treatment options to include only gender-affirming care encourages premature medical intervention. The Anglican Church in North America and other religious associations (“Religious Associations”), in support of Chiles, agree that Colorado’s statute burdens exploratory therapy—wherein a minor has the goal of moving past feelings of differing sexual or gender identity. Religious Associations argue that such bans harm religious counselors and clients by preventing them from conducting therapy in alignment with their faith-informed goals.

    The American Psychological Association and thirteen other mental health and medical professional organizations (“Mental Health Organizations”), in support of Salazar, caution that efforts to change sexual orientation and gender identity are ineffective and harmful.  Contrarily, Mental Health Organizations argue that there is a research-backed professional consensus against the use of practices seeking to change gender identity or sexual orientation. Further, Mental Health Organizations assert that a child’s natural fluidity is the result of changes in awareness rather than the effect of willful efforts to change their sexual orientation and gender identity. Faith-Based Mental Health Professionals (“FBMHP”), in support of Salazar, observe that, under the statute, consensual therapy exploring a client’s developing understanding of their gender and sexual orientation is permissible as the statute only prohibits coercive practices. FBMHP add that Colorado’s statute does not require counselors to encourage LGBTQ+ identities or express views contrary to their personal beliefs.

    THE EFFECT OF REGULATION ON THE PUBLIC

    National Religious Broadcasters (“NRB”), in support of Chiles, argues that professional speech deserves heightened constitutional protection because the freedom of professionals to provide expert opinions to the public is essential to the marketplace of ideas.  NRB asserts that the public relies on the expert knowledge of professionals when discussing and forming opinions about specialized topics like psychology. NRB argues that regulating the content of professional speech imposes state-sponsored opinions on the public. NRB concludes that heightened speech protections protect professionals from coercive speech regulations while leaving space for regulators to prevent harm to patients, such as in instances of fraud.

    Washington along with nineteen states and the District of Columbia (collectively “Washington”), in support of Salazar, argue that when states regulate conversion therapy, they do so under their general authority to establish professional standards in the public interest.  Washington observes that these existing regulations are informed by a medical consensus that the practice of conversion therapy falls below objective standards of care. Medical practitioners, Washington argues, cannot shield harmful practices using the First Amendment. Washington asserts that failing to regulate professional speech in this context threatens existing ethical standards and licensing requirements for all professions, potentially opening the door to even more public harm.

    Conclusion

    Authors

    Written by:    V. Carter and Olivia Hussey

    Edited by:      Sara Fischer

    Acknowledgments

    The authors would like to thank Professor Michael C. Dorf for his guidance and insights into this case.

    Additional Resources