A federal judge last week blocked Colorado from enforcing its restriction on conversion therapy for LGBTQ children against a Colorado Springs counselor, after both sides agreed that the state will not pursue professional disciplinary action while the case proceeds.

The formalization of a preliminary injunction came days after one appellate judge argued that the Denver-based federal appeals court should decide the issue without delay, likely in plaintiff Kaley Chiles’ favor.

In 2019, Colorado prohibited certain state-licensed professionals from attempting to change a minor patient’s gender identity, sexual orientation or to otherwise eliminate feelings of same-sex attraction. Chiles alleged the law violated her First Amendment rights and she sought a preliminary injunction blocking its enforcement against her. U.S. District Court Judge Charlotte N. Sweeney, a Joe Biden appointee, denied that request in 2022, determining the law permissibly regulated professional conduct.

Nearly two years later, the U.S. Court of Appeals for the 10th Circuit affirmed that order by 2-1. Two Democratic appointees were in the majority, while Judge Harris L Hartz, an appointee of George W. Bush, dissented.

This spring, the U.S. Supreme Court reversed the 10th Circuit. While the court did not strike down Colorado’s law or cast doubt on its application to non-speech forms of conversion therapy, the justices believed the law needed to be analyzed through a rigorous lens triggered by restrictions on expression. To satisfy the “strict scrutiny” test, Colorado would need to show its law was narrowly drawn to serve a compelling governmental interest.

The case returned to the same 10th Circuit panel, consisting of Judges Veronica S. Rossman and Nancy L. Moritz, both appointees of Democratic presidents, plus Hartz. Chiles’ lawyers filed a brief motion on May 4 asking the panel to expedite her case to “stop Colorado’s ongoing censorship of Chiles’s counseling and the irreparable harm to her free-speech rights.”

In an unsigned order on May 27, the panel sent the case to the trial court for further analysis. Hartz, who dissented from the original decision, also disagreed with that course of action. He argued the panel should decide whether Chiles is entitled to an injunction, with the answer almost certainly being “yes.”

“The regulation of Ms. Chiles’s speech does not come close to satisfying the test. When I wrote my dissent on the initial appeal in this case, my view was that the district court should review in the first instance whether there is any scientific support for the proposition that speech-only conversion therapy administered by licensed mental-health professionals is dangerous to minors and that the danger rises to the level of the dangers of other therapies that are prohibited to licensed practitioners,” Hartz wrote. “But that was 20 months ago and, given the notoriety of this case, any scientific evidence supporting Colorado would likely have emerged.”

He added that, at most, the 10th Circuit panel could ask the parties for argument about whether further analysis in the trial court was necessary.

“If possible (and that surely seems to be the case), this litigation should be brought to a speedy conclusion. I see no need for a remand to the district court,” Hartz concluded.

However, the litigation took a slightly different direction. One day after the panel’s order, U.S. District Court Judge Gordon P. Gallagher, a Biden appointee who has since taken the case over from Sweeney, asked the parties to indicate whether there was a version of a preliminary injunction they could agree upon. After lawyers for Chiles and the state conferred over the next few days, they presented a brief order for Gallagher’s approval.

“During the pendency of this case until the district court issues a final judgment, Defendants, their officers, agents, servants, employees, attorneys,” the injunction read, “are enjoined from enforcing (the law) against Plaintiff’s practice of talk-only licensed professional counseling and addiction counseling.”

In their attached narrative, the parties noted their disagreement about the status of the law as of July 1. Gov. Jared Polis recently signed a bill that, among other things, modified the definition of “conversion therapy.” The parties told Gallagher that the state is still assessing the impact of the change on Chiles’ case.

“Defendants will negotiate with Plaintiff during the next 30 days to discuss the possibility of an agreed-on preliminary injunction tailored to the new law,” the attorneys wrote.

Gallagher signed off on the proposed injunction on June 2 without elaboration.

The case is Chiles v. Salazar et al.