On March 31, 2026, Trans Day of Visibility, the Supreme Court issued an 8-to-1 opinion that places conversion therapy bans, meaning legal restrictions on therapy that helps individuals reject same-sex attractions or resist questions of gender identity, in the First Amendment’s line of fire.
Kaley Chiles, a Colorado mental health counselor whose practice includes conversion therapy, sued her state in 2022, arguing that its conversion therapy ban puts her at risk of being investigated by state authorities.
The lower court ruled against Chiles. It found that Colorado’s ban—similar to laws in 22 other states and the District of Columbia—simply outlawed a disavowed medical treatment, consistent with the state’s obligations to protect public welfare.
The Supreme Court’s eight-justice majority disagreed. They found that “Colorado’s law regulates the content of her speech and goes further to prescribe what views she may and may not express, discriminating on the basis of viewpoint.”
Chiles asked the Supreme Court to address two legal issues: First, whether the conversion therapy ban should be reviewed under a higher level of scrutiny—requiring more compelling reasoning from the state—because of its entanglements with the First Amendment’s free speech protections; and second, to issue a final ruling on the ban rather than sending it back to the lower court for review, should her arguments prevail.
The Court granted Chiles’s first request. The majority found that the lower court did not use the appropriate level of scrutiny given Chiles’s free speech claims. As Justice Neil Gorsuch wrote for the majority, the fact that the regulation “falls only on licensed health care professionals does not change the equation. The First Amendment protects the right of all to speak their minds.”
The Court did not grant Chiles’s second request. Rather than overturn the ban itself, the Court remanded the decision back to the lower court for review under strict scrutiny.
The ruling leaves very little room for the ban’s application to talk-based therapy to survive. But it also raises more questions than it answers—questions that will only be resolved through future litigation.
The justices’ decision to weaken Colorado’s ban should come as no surprise. Chiles v. Salazar is one in a growing list of recent Court decisions that has dialed back LGBTQ advancements. In fact, of the five LGBTQ-related decisions that the Court has reviewed in the past six years, only one supports LGBTQ rights: Bostock v. Clayton in 2020, which declared sexuality- or gender-identity-based discrimination a form of sex-based discrimination.
Clues about the Court’s leanings were obvious during oral arguments—especially among the conservative justices, who seemed ready to accept the notion that conversion therapy bans as applied to mental health practitioners engage in viewpoint discrimination. Justices Amy Coney Barrett and Samuel Alito went one step further by questioning the relevance of medical experts and “standards of care.”
Yet despite the writing on the wall, the decision hits hard for multiple reasons.
First, instead of the usual six-justice conservative majority siding against LGBTQ rights, Justices Sonia Sotomayor and Elena Kagan joined their colleagues, leaving Justice Ketanji Brown Jackson to shoulder the dissent alone.
For LGBTQ advocates, this may sound a new alarm. Does Kagan and Sotomayor’s movement to the right in Chiles signal an era of even greater judicial hostility towards LGBTQ rights?
What can we make of two liberal justices signing onto an opinion that may usher in a resurgence of conversion therapy? Have they sold out the LGBTQ community? Or could there be some plausibly defensible strategic reason for their apparent defection?
There could be: It is possible that Kagan and Sotomayor both saw the potential relevance of Chiles to the Court’s decision last term in Skrmetti v. Tennessee. That case upheld Tennessee’s ban on gender-affirming care, which has since prompted similar laws in 27 other states.
In her concurrence in Chiles, which is co-signed by Sotomayor, Kagan posits a “hypothetical” statute that “instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things.” This, the concurrence argues, is a clear example of the state restricting “speech on only one side.”
Of course, this is not a hypothetical. Although the law under review in Skrmetti bars medical practices that focus on physiological interventions—hormone replacement, puberty delayers, and surgery—some states have since applied their bans to mental health. On March 2, Texas Attorney General Ken Paxton declared that his state’s ban on gender-affirming care will be applied to mental health providers. His intent was to send “a clear warning that there will be consequences for any medical professional, whether a doctor or a therapist” who provides “treatment to minors that transitions their birth gender.”
In fact, the executive director of the Texas Behavioral Health Executive Council had been waiting on the Court’s verdict in Chiles to assess how to contend with Paxton’s announcement. Under Kagan’s hypothetical, Chiles provides Texas therapists with critical constitutional protections.
However, this may be cold comfort to LGBTQ advocates. Although the lower court has not yet reviewed Chiles’s claims within a First Amendment framework, states with conversion therapy bans are now considering how to change the legislative language to comply with the ruling while preserving the ban’s core elements.
Second, although the Court describes their task as “a narrow one,” their decision creates an entirely new category of protected speech—one with broad and significant implications.
If mental health therapy now constitutes speech, it is difficult to imagine what language legislators could deploy that would appease the Court’s framework while also preserving statutory restrictions against conversion therapy. Kagan suggests viewpoint-neutral content-based restrictions, which could regulate the topics that are discussed, but not the views that people adopt. These would still raise First Amendment questions (any speech would under Chiles). However, Kagan argues that, with content-only restrictions, the Court may be able to “relax [its] guard.”
But what exactly would this fix entail in the context of medical care? Would it resemble the current movement to restrict content in public education—where more than 10 states have passed statutes barring K-12 and university instructors from addressing “divisive” concepts like gender identity or LGBTQ rights? Or would content restriction for medical speech look different?
If mental health therapy is now speech, will the state (through licensing boards or general welfare legislation) still be able to regulate mental health provision in accordance with standards of care or best practices?
We are in wholly uncharted territory. As Justice Jackson warns, “[f]or the first time, the Supreme Court has interpreted the First Amendment to bless a risk of therapeutic harm to children by limiting the State’s ability to regulate medical providers who treat patients with speech. What’s next?”
By establishing an entirely new arena of speech, the Court has paved new and uncertain pathways for litigation. In this way, Chiles may be to medical speech what Masterpiece Cakeshop was to wedding provider speech: the lose thread that yearns to be pulled.
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