David Cole
The New York Review
Originally published 18 OCT 25
Does a state-licensed psychotherapist have a First Amendment right to provide “conversion therapy” counseling even though her profession defines it as a violation of its standard of care? The Supreme Court heard oral argument on that question on October 7 in a case from Colorado, which in 2019 became the eighteenth state in the country to ban conversion therapy for minors. Today twenty-five states and the District of Columbia ban such treatment, because the profession has determined that it does not work and can cause serious harm.
In 2022 Kaley Chiles, a state-licensed counselor, challenged the ban in federal court. (I signed an amicus brief of constitutional law scholars in support of Colorado, and provided pro bono advice to the state’s attorneys in defending the law.) She maintains that she has a First Amendment right to practice conversion therapy—notwithstanding her profession’s consensus that it violates the standard of care—as long as it consists only of words. For the state to prevent her from doing so would, she maintains, amount to censorship of a disfavored point of view, namely that one can willfully change one’s sexual orientation or gender identity. The justices’ questions at oral argument suggest that they may well agree.
But Chiles’s argument cannot be squared with history, tradition, or common sense. States have long regulated professional conduct, including in the talking professions such as counseling and law, and the general obligation that a professional must provide services that comport with the standard of care is as old as the professions themselves. Even before the United States was founded, the colonies enforced malpractice and required that professionals be licensed and provide services that met their profession’s standard. Each profession has its requirements: lawyers must avoid conflicts of interest and provide advice based on existing precedent; doctors must obtain informed consent and provide evidence-based diagnoses; therapists must conduct recognized modes of therapy. A lawyer would run afoul of the profession’s standards by writing a brief urging the Supreme Court to side with his client because the moon is in Capricorn; so would a therapist who claims she can cure blindness through talk therapy. The purpose behind such standards is clear—to protect often vulnerable patients or clients from being preyed upon by professionals who hold themselves out as experts but provide substandard services.
Here are some thoughts:
The article argues that the recent Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage, is now being weaponized to undermine LGBTQ+ rights, specifically by creating a purported "right" to so-called conversion therapy. The author contends that anti-LGBTQ+ legal groups are strategically redefining religious liberty and free speech to challenge state bans on the discredited practice. By framing conversion therapy as a form of "conversion speech," these advocates are attempting to position it as a protected religious or expressive conduct between a therapist and a client. The piece sounds a strong alarm that this legal maneuvering seeks to legitimize psychological malpractice under the guise of constitutional rights, effectively using the legal victory of marriage equality to roll back protections for vulnerable LGBTQ+ youth and sanction harmful, pseudoscientific practices that major medical associations have universally condemned.