The recent decision by the Supreme Court to strike down bans on conversion therapy has sparked a heated debate over free speech rights, highlighting perceived inconsistencies in how similar bans are treated. Critics are questioning why bans on abortion and drag shows are held to different standards.

In its examination of the 2019 Colorado ban on conversion therapy through the case of Chiles v. Salazar, the Supreme Court determined that a lower court had made an error in upholding the ban. The justices concluded that the ban improperly regulated speech based on viewpoint, a critical component of their decision.

Justice Neil Gorsuch, writing for the majority, emphasized that, “A law regulating the content of speech cannot avoid rigorous First Amendment scrutiny simply because it predominantly regulates non-expressive conduct. The crucial factor is whether, in the specific instance, the law regulates speech.” Justice Ketanji Brown Jackson was the sole dissenting voice in this ruling.

It’s important to note that the Supreme Court did not directly address the constitutionality of Colorado’s ban. Instead, the case was remanded to the lower courts with instructions to apply a more stringent standard when reviewing the law. At the heart of this decision is whether conversion therapy can be regulated by the government in the same way healthcare practices are.

Legal experts have commented on the narrow scope of the ruling, which may explain why it received such widespread support among the justices. University of Houston law professor Seth Chandler argued that from a First Amendment perspective, the ruling was appropriate. The decision underscores ongoing tensions between regulating harmful practices and protecting free speech.

“Colorado took sides, where it said it’s fine with us if you want to engage in gender-affirming speech, but we are going to prohibit you from engaging in ‘rethinking your sexuality’ speech,” Chandler said.  

“That enabled eight of the justices to find that that violated the First Amendment, because it was viewpoint discrimination, which is generally ranked as the highest form of discrimination.” 

Other observers saw parallels between this decision and other state-level regulations that have entered cultural discourse in recent years.

Several states have laws that require abortion care providers to convey certain information to patients, including information about fetal pain and unsupported claims that abortions could increase the risk of breast cancer. 

“What I think is so funny —  not funny but like ironic — is that for decades there have already been dozens of state laws that tell doctors what they can or cannot say about abortion,” Zoe Taylor, a family physician in Washington state and a former fellow at the Physicians for Reproductive Health advocacy group, told The Hill. 

“Doctors who provide abortions have been forced to tell patients things that are untrue, forced to give them pamphlets that say untrue things,” added Taylor. “Doctors who work for the VA or the military hospitals are not even allowed to counsel on abortion. So, how is that not a violation of free speech?” 

The court’s ruling was effectively a step toward distinguishing conversion therapy as being separate from medical care, despite proponents billing it as such. Organizations such as the Alliance for Therapeutic Choice and Scientific Integrity, which submitted an amicus brief in support of the plaintiff in Chiles v. Salazar, refer to themselves as “mental-health associations.”

The plaintiff in the case, Kaley Chiles, is a licensed counselor in the state of Colorado. 

Critics of the Supreme Court’s ruling say people who offer conversion therapy can’t have it both ways, being both an unregulated form of free speech and a type of health service. 

“Counseling is part of medical treatment, which has a long history of being regulated in this country. And that’s important so that people can trust that when they seek out care from a licensed professional, somebody that the state has validated as being bound by professional ethics, a standard of care, people should be able to trust that that means the care that they’re getting is evidence-based and safe at the very least,” said Casey Pick, senior director of law and policy at the Trevor Project. 

Pick sees contradictions between the conservative view on Colorado’s ban on conversion therapy and laws passed in red states banning children from drag shows or restricting drag performances. Both bans have been passed on the basis of protecting minors and have both been challenged as violations of free speech, she noted. 

“The drag bans that we’ve seen, when they’ve been evaluated in court under First Amendment scrutiny, have generally been pretty summarily knocked down,” Pick said. 

“Unlike in the context of professional counseling, there is no long and established history of regulation of dance performance in this country,” she added. “But you couldn’t make an argument that there is a compelling government interest in restricting that sort of speech the same way that there’s a compelling interest in protecting young people from abuse by licensed therapists who have a unique trust given to them because of their license.” 

According to Chandler, it would be in the best interest of people who offer conversion therapy to distance themselves from health care.

“If I were advising a conversion therapist, I would tell them to stay as far away from medicalized terms as possible,” he said. “Because the closer they get to being like a doctor who plays a variety of modalities to treat people, the more the court might distinguish the pure speech case.”