Colorado’s 2019 ban on the provision of “conversion therapy” for LGBTQ children will remain in effect after the federal appeals court based in Denver declined on Thursday to block the law on constitutional grounds.

Kaley Chiles, a licensed counselor in Colorado Springs, alleged the law violated her First Amendment rights and sought a preliminary injunction. A trial judge sided against her in 2022, determining the law regulated conduct, not speech, and did not target religion.

By 2-1, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit agreed with that conclusion.

Colorado’s law “does not prohibit a mental health professional from discussing what conversion therapy is, what her views on conversion therapy are, or who can legally provide this treatment to her minor clients. It only bars a mental health professional from engaging in the practice herself,” wrote Judge Veronica S. Rossman in the Sept. 12 opinion. Therefore, the law “is a regulation of professional conduct incidentally involving speech.”

Judge Harris L Hartz dissented, taking issue with the classification of Chiles’ “talk therapy” as conduct subject to restriction, when it is inherently expressive.

“If, as the majority opinion argues, talk therapy is ‘medical treatment’,” he argued, “then so too is a doctor’s visit involving the doctor’s ‘giving advice to patients about the use of birth control devices’ or providing ‘information about the use of condoms as a means of preventing the transmission of AIDS.'”

Unusually, the majority and dissenting opinions traded heated barbs over how to interpret the scientific literature on conversion therapy. Rossman called attention to the predominant view that conversion therapy is harmful for minors, while Hartz retorted that no study specifically analyzed the effects of talk therapy on children.

Allegations of censorship

Chiles was represented by the Alliance Defending Freedom, a legal group that litigates on behalf of Christians in cases seeking to elevate religious exercise through challenges to LGBTQ protections and abortion rights. Attorney Cody Barnett criticized the appellate panel’s decision in a statement.

“Counseling is speech, not conduct, and it must be treated as such under the First Amendment,” he said. “The government has no business censoring private conversations between clients and counselors, nor should a counselor be used as a tool to impose the government’s biased views on her clients.”

Colorado’s Department of Regulatory Agencies, whose executive director is one of several named defendants, did not immediately respond to a request for comment.

Enacted in 2019, House Bill 1129 prohibits state-licensed psychiatrists and mental health providers from attempting to change a minor patient’s gender identity, sexual orientation or to otherwise eliminate feelings of same-sex attraction.

Although such practices can be based in discussion or prayer, they have also included hypnosis, induced vomiting or electric shocks. In 2021, the American Psychological Association adopted a stance opposed to conversion therapy, explaining patients “reported self-blame, guilt, shame, negative self-concept, confusion, anxiety, depression” and other negative effects.

Chiles, however, characterized HB 1129 as “censorship,” claiming all she desires to do is talk freely with her patients.

“Speech is the only tool that plaintiff uses in her counseling with minors seeking to discuss their sexuality,” wrote Chiles’ lawyers, likening her therapy to “protesting,” “debating” and “book clubs” that merit First Amendment protection.

U.S. District Court Judge Charlotte N. Sweeney initially declined to enjoin the state from enforcing the law, slamming Chiles’ attempt to compare her professionally regulated conduct to to “casual conversations about New York Times bestsellers.”

“In the case of children who identify as lesbian, gay, bisexual, cisgender, transgender, or gender nonconforming, they are entitled to treatment — regardless of its outcome — that does not take a cavalier approach to their ‘dignity and worth,'” wrote Sweeney, the first openly gay federal judge in Colorado. “And at the bare minimum, they are also entitled to a state’s protection from therapeutic modalities that have been shown to cause longstanding psychological and physical damage.”

Regulated conduct involving speech

Chiles appealed to the 10th Circuit, reiterating her desire was to engage in protected speech.

“There’s no conduct involved,” Barnett told the panel at oral arguments last year. “There is nothing concrete. There is no medical procedure this law is targeting.”

“So, conversion therapy is not treatment? Not a medical procedure?” responded Rossman. “I think you’re understanding ‘medical procedure’ to be something that involves a scalpel only.”

Hartz acknowledged the opinions of professional medical organizations that conversion therapy is detrimental, but “is consensus ‘science’?” he wondered.

Deputy Solicitor General Helen Norton, in defending the conversion therapy ban, drew a parallel between Chiles’ talk therapy and the practice of law.

“We’re representing our clients. And everything that we do today, the First Amendment permits the states to regulate to protect our client,” she said. “Even though everything we do, pretty much, in the practice of law is delivered through the spoken or written word.”

Numerous outside organizations weighed in to the 10th Circuit, with predominantly religious groups warning about censorship, on the one hand, and medical groups and First Amendment scholars arguing in favor of states’ right to protect child patients. The Virginia-based Institute for Justice submitted a brief supporting neither party, arguing Colorado’s law does regulate speech but the state may be able to justify its constitutionality after all.

The role of expert opinion

Rossman, an appointee of President Joe Biden, agreed Colorado’s law is aimed at regulating the type of therapy provided, not the speech of therapists. She also noted the evidence in the case supported the conclusion that conversion therapy is harmful to children.

“We respectfully disagree with the dissent that the existence of debate or changing professional attitudes over time regarding the efficacy and harmfulness of conversion therapy suggests there is a lack of scientific consensus on the matter,” she wrote for herself and Judge Nancy L. Moritz, a Barack Obama appointee.

Hartz criticized Rossman for claiming he was engaging in “unnecessary” or outright “risky” second-guessing of the science. Instead, he openly questioned the weight courts should give to current professional views condemning conversion therapy.

“What if the shoe were on the other foot? It was not terribly long ago that the mental-health establishment declared homosexuality to be a mental disorder,” wrote Hartz, a George W. Bush appointee. “A therapist who told a homosexual that he was psychologically sound and should take pride in his being different could presumably have been accused of professional malpractice.”

In Hartz’s view, the question was whether the courts should “recognize an exception to freedom of speech when the leaders of national professional organizations declare certain speech to be dangerous.” He answered no, and indicated he would have returned the case to Sweeney to analyze Colorado’s ban using the high threshold applied to free speech laws.

“It is a bit unusual for both the majority and dissent to delve into the scientific issues at this stage of the proceedings, but it is not unheard of,” said Alan Chen, a constitutional law professor at the University of Denver. “The court does have to assess the legitimacy and strength of the government’s justifications for the law, and that assessment may in turn depend on how the court views the weight of the scientific evidence.”

The U.S. Supreme Court in December declined to hear an appeal involving a similar law in Washington. Three Republican-appointed justices indicated they would have taken the case.

The case is Chiles v. Salazar et al.

Editor’s note: This story has been updated with additional comment.