Published on
In a significant case testing the boundaries of free speech and professional regulation, licensed counselor Kaley Chiles challenged Colorado’s ban on conversion therapy for minors, arguing it violated her First Amendment rights.
By: Meg Morris
Chiles v. Salazar, 116 F.4th 1178 (10th Cir. 2024).
I. Introduction
Plaintiff-Appellant Kaley Chiles, a licensed professional counselor, brought a § 1983 action for declaratory and injunctive relief against the Executive Director of the Colorado Department of Regulatory Agencies, members of the Colorado Board of Licensed Professional Counselor Examiners, and the Colorado Board of Addiction Counselor Examiners. Chiles challenged Colorado’s Mental Health Practice Act, specifically the state’s ban on conversion therapy for minors under the Mental Health Care Treatment Law. Chiles argued that the statute violated her First Amendment rights by restricting her ability to provide counseling in alignment with her clients’ self-identified goals. The district court denied her motion for a preliminary injunction, holding that she had failed to show a likelihood of success on the merits. However, the district court found that Chiles had standing to challenge the law, a conclusion that the defendants, including the Colorado Department of Regulatory Agencies and related licensing boards, cross-appealed. The Tenth Circuit affirmed the district court’s ruling in full, concluding that while Chiles had standing, the MCTL did not unconstitutionally restrict speech but rather regulated professional conduct within permissible bounds.
II. Facts and Holding
Kaley Chiles is a licensed professional counselor in Colorado.[1] Throughout Chiles’ career, she has worked with a variety of clients, offering services such as trauma treatment, addiction counseling, and therapy for personality disorders.[2] In recent years, she has developed an interest in issues related to eating disorders, gender dysphoria, and sexuality.[3]
Chiles practices at Deeper Stories Counseling in Colorado Springs where clinicians have the flexibility to tailor their caseloads to their areas of interest and specialization.[4] Chiles provides counseling services to adults and minors, often working with clients who seek therapy grounded in their Christian faith.[5] Chiles receives clients primarily through referrals from churches or by word-of-mouth.[6] Many clients uphold a biblical worldview, emphasizing that attractions and feelings do not dictate behavior or identity.[7] They believe their faith and relationship with God supersede romantic attractions and that their identity is determined by biblical teachings rather than personal perceptions or feelings.[8]
According to Ms. Chiles, clients with same-sex attractions or gender identity concerns often seek counseling to live in alignment with their faith.[9] She contends that not living in accordance with these beliefs can result in internal conflicts, depression, anxiety, addiction, and other issues.[10] In her practice, she claims to exclusively use talk therapy and does not aim to “cure” or “change” clients’ sexual orientation.[11] Instead, she helps clients pursue their stated goals, which may include reducing or eliminating unwanted sexual attractions, modifying behaviors, or achieving harmony with their physical body.[12] She also respects minors’ wishes, refraining from encouraging changes if they are not seeking them.[13]
Colorado’s Mental Health Practice Act establishes state authorities to regulate mental health practitioners, prohibits obtaining licenses through fraud, and bars professionals from performing services outside their training.[14] In 2019, the Act was amended to include the Mental Health Care Treatment Law (MCTL), which prohibits licensed mental health professionals from practicing “conversion therapy” on clients under 18.[15]
The MCTL defines “conversion therapy” as any practice aimed at changing an individual’s sexual orientation or gender identity, including attempts to alter behaviors, expressions, or feelings.[16] However, it excludes practices that promote acceptance, support, coping strategies, identity exploration, or address unsafe behaviors, as long as these interventions do not attempt to change orientation or identity.[17] Additionally, assistance for individuals undergoing gender transition is explicitly excluded.[18] Religious ministry professionals are exempt from compliance with the MCTL and the broader Mental Health Practice Act.[19]
In September 2022, Chiles filed a lawsuit in federal court, challenging the constitutionality of the MCTL.[20] She argued that the MCTL violates the First Amendment’s Free Speech and Free Exercise Clauses, both facially and as applied to her.[21] She sought a declaration that the MCTL is unconstitutional and an injunction preventing its enforcement against her.[22] Before the MCTL was enacted, she freely discussed topics such as sexual attractions, behaviors, gender roles, and identity with clients.[23] However, since the implementation of the MCTL, she has avoided conversations that might be perceived as violations of the law.[24] She alleges that the MCTL has forced her to deny voluntary counseling aligned with her and her client’s religious beliefs, hindering her ability to fully explore topics like sexuality and gender with certain clients.[25]
To address the law’s impact, Chiles filed a motion for a preliminary injunction to prevent Colorado from enforcing the MCTL.[26] She based her motion entirely on the allegations in her verified complaint and did not request a hearing.[27] The defendants opposed her motion, submitting documentary evidence in response.[28] The district court ultimately denied her request for relief, leading both parties to file timely appeals.[29]
On appeal, the circuit court considered two questions: (1) whether Chiles had Article III standing to bring her pre-enforcement First Amendment claims and (2) whether the district court abused its discretion by finding Chiles failed to demonstrate a likelihood of success on the merits of those claims.[30] The Tenth Circuit affirmed that Chiles has Article III standing to bring her pre-enforcement First Amendment challenge against the MCTL.[31] The Tenth Circuit also affirmed that Chiles did not meet her burden of showing a likelihood of success on the merits of her First Amendment free speech and free exercise claims.[32]
The Tenth Circuit found that the MCTL, which prohibits licensed mental health professionals from engaging in conversion therapy with minors, is a regulation of professional conduct that incidentally involves speech.[33] As a result, the law is not subject to strict scrutiny but instead reviewed under a lower standard of rational basis review.[34] The majority emphasized that the law does not restrict general discussions about sexual orientation or identity but instead targets specific practices deemed harmful by the state.[35] It cited scientific consensus and substantial evidence indicating that conversion therapy poses risks to minors, including mental health harms, as a justification for the law’s enactment.[36]
Additionally, the court rejected the plaintiff’s Free Exercise Clause challenge, concluding that the MCTL is neutral and generally applicable.[37] It found no evidence of hostility toward religion in the law’s language or implementation.[38] The court also highlighted that the exemption for religious clergy does not undermine the law’s neutrality because it applies uniformly to licensed professionals.[39] Thus, the MCTL’s purpose of protecting minors’ well-being and preventing harmful therapeutic practices was deemed sufficient to withstand constitutional scrutiny.[40]
The dissenting opinion from Judge Hartz criticizes the majority’s analysis of the MCTL.[41] Hartz challenges the determination that the MCTL does not violate the First Amendment, arguing that the law unduly burdens free speech and free exercise of religion.[42] The dissent emphasized that the law directly targets specific viewpoints by restricting mental health professionals from engaging in certain discussions about sexual orientation and gender identity with minors, which are central to their counseling practices.[43] Hartz suggests that the law’s exemption for religious clergy undermines its purported neutrality and raises concerns about selective enforcement.[44]
Further, Hartz disputes the majority’s application of a rational basis review to the speech component of the case, asserting that stricter scrutiny is warranted given the content-based nature of the regulation.[45] The dissent argues that the MCTL imposes unnecessary constraints on professionals who seek to counsel clients according to their stated religious and personal goals, like the plaintiff.[46] This, Hartz warns, sets a dangerous precedent for government regulation of professional speech.[47]
III. Legal Background
The First Amendment of the U.S. Constitution prohibits the enactment of laws “abridging the freedom of speech.”[48] The First Amendment’s protections extend beyond private speech to encompass all types of communication, including professional and commercial speech. The U.S. Supreme Court has consistently ruled that the government cannot restrict expression based on the message, subject matter, or content of the speech.[49]
The Supreme Court has clarified that not all restrictions on speech are unconstitutional. It is well-established that when a law regulates protected speech based on content, it is subject to strict scrutiny.[50] However, the First Amendment permits restrictions on conduct that may incidentally burden speech.[51] In such cases, the law is evaluated under rational basis review.[52] Under rational basis review, “this court will uphold government [action] if it is ‘rationally related to a legitimate government purpose or end.’”[53] “[H]ealth and welfare laws [are] entitled to a ‘strong presumption of validity’ ” and “must be sustained if there is a rational basis on which the legislature could have thought that [the law] would serve legitimate state interests.”[54]
One example of legislators regulating conduct is through laws banning conversion therapy.[55] Many states have passed laws that prohibit the use of conversion therapy, though there have been many challenges on whether these laws are legal under the First Amendment.[56] One such challenge arose in the Ninth Circuit’s ruling in Pickup v. Brown.[57] In Pickup, the Ninth Circuit reviewed California’s Senate Bill 1172, which prohibited licensed mental health providers from engaging in sexual orientation change efforts with minors.[58] The plaintiffs, including mental health providers and advocacy groups, argued that the law violated their First Amendment rights and other constitutional protections.[59] The court held that the law regulated professional conduct, not speech, and was subject to rational basis review rather than strict scrutiny.[60] The court ultimately upheld the statute, finding the statute was rationally related to California’s legitimate interest in protecting minors from potentially harmful practices.[61]
Another significant case in this area was the Third Circuit’s decision in King v. Governor of New Jersey, which upheld New Jersey’s conversion therapy ban.[62] The Third Circuit framed the issue as one of state authority to regulate the practice of licensed professionals, emphasizing that the regulation of harmful conduct is a core governmental function.[63] These cases collectively shaped the foundation for the Tenth Circuit’s decision by establishing a precedent that states may impose restrictions on professional practices to protect public health and safety without violating the First Amendment.
Although several circuits had addressed the issue, the Supreme Court finally gave its opinion on the subject in 2018.[64] In NIFLA, the Supreme Court examined the constitutionality of a California law requiring crisis pregnancy centers—pro-life organizations offering limited pregnancy-related services—to display notices about state programs providing free or low-cost family planning services, including contraception and abortion.[65] The petitioners, crisis pregnancy centers, and a related organization argued the law violated their First Amendment rights by compelling them to promote a message contrary to their beliefs.[66]
The Ninth Circuit upheld the law, reasoning that the requirement regulated “professional speech” and therefore deserved a lower level of First Amendment scrutiny.[67] The Supreme Court, however, reversed this decision.[68] It rejected the idea that “professional speech” is a unique category of speech exempt from ordinary First Amendment principles.[69] The Court emphasized that professional speech enjoys robust constitutional protection and declined to create a broad new category of speech subject to reduced scrutiny.[70]
The Court acknowledged two specific contexts where professional speech may receive less protection: (1) when laws require professionals to disclose factual, noncontroversial information as part of their commercial speech, and (2) when laws regulate professional conduct that incidentally burdens speech.[71] While the Court upheld such regulations in cases like Planned Parenthood of Southeastern Pa. v. Casey (requiring informed consent before abortions), it found the California law in NIFLA did not fall into either category.[72] The notice requirement was not tied to a specific medical procedure, applied universally to all interactions at the centers, and compelled speech unrelated to the centers’ services or risks of any medical procedures.[73]
The Court applied strict scrutiny to the law, as it was a content-based regulation of speech, and determined the law was not narrowly tailored to achieve the state’s goals.[74] As a result, the notice requirement was struck down as unconstitutional, reinforcing that the government cannot compel individuals or organizations to speak messages that conflict with their deeply held beliefs without a compelling and narrowly tailored justification.[75] While the Court in NIFLA struck down a California law requiring disclosures by crisis pregnancy centers, it left room for the regulation of professional conduct that incidentally involves speech.
IV. Comment
The Tenth Circuit’s decision to classify “talk therapy” as treatment, thereby characterizing it as conduct rather than protected speech, has far-reaching implications that extend well beyond the immediate realm of therapy and mental health services. By framing counseling as conduct, the court opens the door to significant restrictions on open dialogue within therapy sessions, creating the risk of a chilling effect on therapeutic communication. Therapists may hesitate to provide necessary support or explore sensitive topics for fear of legal repercussions if their counseling violates state-imposed restrictions.
The broader implications of this decision could enable states to enact laws that go beyond the current context and restrict discussions of other controversial topics. For example, states might prohibit mental health professionals from using talk therapy to affirm a client’s gender identity or address doubts about religious beliefs, categorizing these practices as harmful. Under the Tenth Circuit’s analysis, such state bans would be considered regulations of conduct and would likely survive rational basis review as long as they were rationally connected to a state interest. This approach could stifle diverse perspectives and impose a one-size-fits-all approach to therapy, regardless of a client’s unique needs or beliefs. If talk therapy is broadly categorized as regulable conduct rather than protected speech, it sets a precedent for states to target any form of therapeutic treatment that is politically or socially contentious.
The Tenth Circuit also notes that under the Colorado law, Ms. Chiles may refer minor clients to service providers outside the law’s regulatory scope, such as religious ministers, who can legally engage in efforts to change a client’s sexual orientation or gender identity.[76] A report published in 2019 estimated that approximately 57,000 U.S. adolescents will receive conversion therapy from religious advisors before they reach the age of 18.[77] The Colorado law meant to protect adolescents from conversion therapy would allow mental health professionals to recommend children visit unregulated, unlicensed religious ministers to provide conversion therapy. Although professional licensure does not inherently ensure better outcomes, licensing does impose certain safeguards. State regulations for mental health professionals and related fields typically include thorough background checks, competency exams, verification of educational or clinical training, and ongoing continuing education requirements.[78]
States like Colorado could prohibit conversion therapy without requiring the court to classify all “talk treatment” by mental health professionals as conduct by regulating only those performing conversion therapy without a license. States could regulate conversion therapy as a matter of professional conduct or under another category of historically regulated speech.[79] The remaining licensed individuals could be regulated by preexisting professional conduct rules.[80] Licensure requirements would allow professional licensing and misconduct boards to regulate conversion therapy by holding licensed practitioners accountable under existing misconduct rules, as seen in states like Indiana and Louisiana, where boards have emphasized ethical standards and patient protections against harmful, unproven treatments.[81]
While laws banning licensed mental health professionals from conducting conversion therapy may serve a valuable purpose, the court’s reasoning in upholding such laws raises broader concerns. The pending Chiles certiorari petition presents an opportunity for the Supreme Court to determine how speech in the therapy context should be treated under the First Amendment. A ruling upholding the Tenth Circuit’s approach could have profound consequences, not only for the regulation of counseling on sexuality and gender identity but also for other areas of therapeutic practice. If states are granted broad authority to regulate speech in therapy, we may see restrictions imposed on discussions about other sensitive issues, ranging from family dynamics to political beliefs. The Court’s decision will likely shape the boundaries of state power over professional speech and the extent to which individuals retain autonomy in their therapeutic journeys. These questions remain critical not only for therapy but for broader issues of free speech and professional autonomy in the future.
[1] Chiles v. Salazar, 116 F.4th 1178, 1193 (10th Cir. 2024).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id. at 1192.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 1193–94.
[21] Id. at 1194.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id. at 1196.
[32] Id. at 1201.
[33] Id.at 1214.
[34] Id.
[35] Id. at 1220.
[36] Id. at 1217.
[37] Id. at 1225.
[38] Id. at 1223–24.
[39] Id. at 1225.
[40] Id.
[41] Id. at 1226–46.
[42] Id. at 1234.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] U.S. Const. amend. I.
[49] United States v. Stevens, 559 U.S. 460, 468 (2010).
[50] Animal Legal Def. Fund v. Kelly, 9 F.4th 1219, 1226 (10th Cir. 2021).
[51] Id. at 1227.
[52] Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 765 (2018).
[53] Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007) (quoting Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1031–32 (10th Cir. 2007)).
[54] Dobbs v. Jackson Women’s Health Organization., 597 U.S. 215, 301 (quoting Heller v. Doe, 509 U.S. 312, 319, (1993)).
[55] Hugh Cemeron, Map Shows States Which Still Allow Conversion Therapy, (Aug. 28, 2024, 6:43PM), https://www.newsweek.com/map-shows-states-conversion-therapy-laws-1939241.
[56] Id.
[57] 740 F.3d 1208 (9th Cir. 2014).
[58] Id. at 1222–23.
[59] Id.at 1225.
[60] Id. at 1229–30.
[61] Id. at 1232.
[62] King v. Gov. of New Jersey, 767 F.3d 216 (3d Cir. 2014), abrogated by Natl. Inst. of Fam. and Life Advocs. v. Becerra, 585 U.S. 755 (2018).
[63] Id.at 232.
[64] Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755 (2018).
[65] Id. at 761–62.
[66] Id. at 765.
[67] Id.
[68] Id.
[69] Id. at 773.
[70] Id.
[71] Id. at 768.
[72] Id. at 769–70.
[73] Id. at 778.
[74] Id. at 776.
[75] Id.
[76] Chiles v. Salazar, 116 F.4th 1178, 1209 (10th Cir. 2024).
[77] Christy Mallory, et. al., Conversion Therapy and LGBT Youth, Williams Institute, https://williamsinstitute.law.ucla.edu/publications/conversion-therapy-and-lgbt-youth/.
[78] Cameron J. Rachford, Botched Bans: Analyzing Conversion Therapy Bans After a Decade of Legal Challenge 99 Ind. L.J. 1403, 1412.
[79] Id. at 1421–1425 (explaining the possibility of regulating speech therapy through licensing requirements and through a category of speech recognized in a case decided by the Ninth Circuit).
[80] Id. at 1429–1430 (explaining the possibility of regulating speech therapy through licensing requirements and through a category of speech recognized in a case decided by the Ninth Circuit).
[81] Id.