Liberty Counsel filed an amicus brief urging the U.S. Supreme Court to review Chiles v. Salazar, a case involving a Colorado law that violates the free speech of licensed counselors who help clients deal with unwanted gender confusion or same-sex attractions. The Colorado law prohibits any counseling that might help minors change their behaviors, sexual orientation, or gender expressions even when the client wishes to do so. Liberty Counsel recommends that the High Court grant the certiorari petition of professional counselor Kaley Chiles to resolve the profound and harmful impact counseling bans are having on the First Amendment rights of licensed counselors and the mental health of minors.
Last September, the Tenth Circuit Court of Appeals upheld Colorado’s 2019 law reasoning that talk therapy in a counseling session is “professional conduct” and not “speech” – even though counseling is made up entirely of speech. The Court ruled that any free speech violations by the law were incidental and that the counseling “conduct” fell out from under First Amendment protection.
This issue has circulated in the courts for more than ten years with four different Appeals Courts currently divided 2-2 over whether counseling bans are valid. The Ninth Circuit held that mental health treatments were categorically “conduct” and that a California counseling ban can prohibit those treatments. However, both the Third and Eleventh Circuits rejected labeling speech as conduct since counseling consists “entirely of speech.” These circuits struck down a counseling ban statute in New Jersey and a city ordinance in Florida, respectively.
Even though the Supreme Court has denied hearing the issue before, Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh all indicated that they would have heard a similar challenge. Justice Thomas noted that these bans have “silenced one side of this debate” and are viewpoint “discrimination in its purest form.” He predicted the issue “will come before the Court again” and stated at that time the Court must decide “what the First Amendment requires.”
In the brief, Liberty Counsel stated that counseling bans have generated “a circuit split over a simple question: Is talk therapy that helps a minor with unwanted same-sex attractions or gender dysphoria conduct or speech?”
“…mental health counseling that helps a client align their feelings and behaviors with their religious beliefs and biological reality—unlike invasive medical procedures involving drugs and surgeries—is First Amendment-protected speech,” wrote Liberty Counsel.
Kaley Chiles is a licensed mental health counselor in Colorado who treats clients with issues related to addiction, trauma, gender confusion, and sexual attraction. However, Colorado’s law violates Chiles’ free speech rights by preventing her from helping those who are struggling with gender confusion, same-sex attractions and unwanted behaviors. The law authorizes fines of up to $5,000 per violation and suspension or even revocation of the counselor’s license.
In the brief, Liberty Counsel explained that Colorado, in order to censor dissenting viewpoints, “conspicuously ignored” studies that show talk therapy for unwanted confusion and same-sex attractions is safe and effective.
“This is not a consensus grounded in empirical rigor; it is a manufactured narrative that marginalizes alternative perspectives,” wrote Liberty Counsel. “But as history shows, such consensus often reflects not objective truths or science but the cultural and ideological preferences of a select group. … When courts rely on ‘expert consensus’ without scrutinizing its underpinnings, they risk enshrining ideology, not truth, into law.”
Liberty Counsel has represented licensed counselors who have used talk therapy to help many people. Through Liberty Counsel’s efforts, city ordinances in Florida and Iowa banning this type of counseling have been struck down or repealed preserving the free speech rights of counselors so they can help their clients to reduce or eliminate unwanted same-sex attractions, behaviors, or gender confusion. In both Otto v. City of Boca Raton and Vazzo v. City of Tampa, the Eleventh Circuit Court of Appeals struck down city ordinances that prohibited licensed counselors from providing voluntary talk therapy to minors seeking help to eliminate unwanted same-sex attractions or gender confusion because they were unconstitutional under the First Amendment.
Liberty Counsel Founder and Chairman Mat Staver said, “Talk therapy is speech, and the government has no authority to restrict that speech down to just one viewpoint. The U.S. Supreme Court can take this case and render Colorado’s ban on therapeutic counseling unconstitutional. In doing so, all counseling bans nationwide can then be struck down and people can get the counseling they need. Counselors and clients should have the freedom to choose the counsel of their choice and be free of government censorship.”
