The Supreme Court has ruled against a Colorado law banning licensed therapists from offering “conversion therapy.” The 8-1 decision centered on First Amendment protections for professional speech, with the majority finding the state’s regulation constituted unconstitutional viewpoint discrimination.
Justice Neil Gorsuch authored the opinion, joined by all conservative justices and two liberal justices, Sonia Sotomayor and Elena Kagan. Only Justice Ketanji Brown Jackson dissented. The case involved a therapist who provides talk-based counseling to clients seeking to change their sexual orientation or gender identity.
The Court held that Colorado’s law treated therapists differently based on their expressed views about a client’s sexuality. It permitted affirming a client’s orientation but prohibited speech aimed at facilitating change. Such viewpoint-based restrictions are among the most suspect under the First Amendment.
Gorsuch’s opinion acknowledges that professional speech is not entirely immune from regulation. It suggests the government can mandate factual disclosures, like a doctor outlining surgical risks. Speech promoting criminal activity also receives less protection.
However, the ruling indicates states have limited power to proactively ban specific therapeutic viewpoints, even for practices widely discredited by medical authorities. Major health organizations, including the American Psychological Association, warn conversion therapy poses significant risks of harm to patients.
The decision does not eliminate all accountability. Gorsuch notes malpractice lawsuits remain available if a patient can prove they suffered actual injury from a professional’s breach of duty. State licensing boards may also take action after harm occurs.
This ruling may influence other regulations on professional advice, such as restrictions on doctors promoting unproven COVID-19 treatments. It underscores the high constitutional bar for laws that restrict speech based on its viewpoint, even when addressing potential harms.