Supreme Court Gay Rights

People on both sides of the debate rally outside the Supreme Court in Washington, Monday, Dec. 5, 2022. The Supreme Court is hearing the case of a Christian graphic artist who objects to designing wedding websites for gay couples, that's the latest clash of religion and gay rights to land at the highest court. (AP Photo/Andrew Harnik)

A federal judge has refused to block enforcement of a 2019 Colorado law banning "conversion therapy" for LGBTQ children, rejecting several arguments from a licensed counselor in Colorado Springs who alleges the law violates her First Amendment rights as a professional and a Christian.

Kaley Chiles requested a preliminary injunction against House Bill 19-1129, which 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. Proponents of the law, including medical professionals, deemed the practice harmful and responsible for suicides among LGBTQ youth.

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.

But U.S. District Court Judge Charlotte N. Sweeney last week slammed Chiles' characterization of her state-licensed conduct as "disingenuous."

"Ms. Chiles cannot seriously compare her work as a professional counselor to 'book club' discussions," Sweeney wrote in a Dec. 19 order. "The therapeutic work for which she obtained a graduate degree and professional licensure is incomparable to casual conversations about New York Times bestsellers."

Conversion therapy, which also goes by the labels of sexual orientation change efforts and gender identity change efforts, refers to techniques seeking to change a person's sexuality — specifically, in a manner stigmatizing same-sex attraction or transgender identity. Although such practices can be based in discussion or prayer, they have also included hypnosis, induced vomiting or electric shocks.

Studies have documented increased suicidality, depression and substance abuse stemming from conversion therapy. In 2021, the American Psychological Association adopted a stance opposed to conversion therapy, explaining that patients "reported self-blame, guilt, shame, negative self-concept, confusion, anxiety, depression, disconnection from family and religious community, and feelings of abandonment by God when their (treatment) did not reduce same-gender desire or behavior."

The Colorado legislature enacted HB 1129 in 2019, with Gov. Jared Polis, the state's first openly gay governor, signing it into law. The bill deemed conversion therapy "unprofessional conduct," while clarifying that counselors may provide acceptance, support and understanding for their child patients' sexual exploration, as long as their techniques are "sexual-orientation neutral" interventions that do not seek to convert someone's identity.

"I see this statute as a consumer protection statute," Cynthia Coffman, a Republican former attorney general, testified to a legislative committee at the time. She likened the practice of conversion therapy to "a fraud on the people of Colorado," in addition to being personally harmful to minors.

In September of this year, three years after the enactment of HB 1129, Chiles filed her lawsuit. She identified herself as a licensed counselor and practicing Christian, employed at Deeper Stories Counseling in Colorado Springs. Chiles works with adults who seek "Christian counseling" and children who are "internally motivated to seek counseling."

Chiles primarily alleged that the ban on conversion therapy for minors forces her to limit her "speech" about sexuality, for fear of violating the law.

"With the passage of the Counseling Censorship Law," wrote her attorneys, referring to HB 1129, "the government has interjected itself between mental health professionals and their clients as effectively as if defendants were standing in the counselor’s office with their hand over her mouth lest she dare say something contrary to the state-approved orthodoxy mandated by the law."

Although Chiles reportedly does not practice LGBTQ-aversive therapy herself, she sought to strike down the law for violating her free speech and religious exercise rights, as well as the First Amendment right of her patients to "obtain information" about conversion therapy.

Other federal courts around the country have upheld states' conversion therapy bans in the face of similar challenges. In 2014, the U.S. Court of Appeals for the Third Circuit waved aside a challenge to New Jersey's law, finding that while a mental health professional retained the right to speak to the public about conversion therapy, she "does not enjoy the full protection of the First Amendment when speaking as part of the practice of her profession." This fall, the U.S. Court of Appeals for the Ninth Circuit followed suit with Washington's ban, agreeing the state had an interest in regulating medical treatment.

Sweeney, in evaluating Chiles' request for a preliminary injunction, believed Chiles had misinterpreted the scope of Colorado's law. Nothing, the judge wrote, prohibited Chiles from accomplishing her stated goal: to assist clients with concerns about their sexuality or gender identity.

"Ms. Chiles may engage in therapeutic practices related to any minor client’s distress, under the limited condition that her therapeutic assistance to a client’s distress 'does not seek to change sexual orientation or gender identity'," wrote Sweeney, who is the first openly gay federal judge appointed in Colorado.

She agreed HB 1129 is a public health law whose main purpose is not, as Chiles alleged, to prohibit "the utterance of words the Government disfavors." Sweeney also found no support for the allegation HB 1129 targets religious beliefs. It was clear to her that the General Assembly acted narrowly in accordance with its power to regulate professional conduct, and based on a scientific consensus condemning conversion therapy for children.

"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," Sweeney concluded.

Chiles has moved to appeal Sweeney's ruling. The government, meanwhile, has filed a motion to dismiss the lawsuit entirely. As of 2022, 20 states and the District of Columbia have banned conversion therapy for minors, while an additional six states have enacted partial bans.

The case is Chiles v. Salazar et al.

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