IS COUNSELING “CONDUCT” OR “CONVERSATION”? THE IMPACT OF FIRST AMENDMENT CHALLENGES ON TALK THERAPY

Author: Valerie Benton, Associate Editor

The impact of First Amendment rights on professional counseling has become a contentious legal issue, particularly regarding state bans on conversion therapy for minors. This debate recently came to the forefront when Kaley Chiles, a licensed therapist, challenged Colorado’s 2019 Minor Conversion Therapy Law[i] “prohibiting a mental health care provider from engaging in conversion therapy with a patient under eighteen years of age.”[ii] Chiles argued the law violated her First Amendment right to free speech.[iii] However, the Tenth Circuit Court upheld the ban, determining that the state statute regulated professional conduct rather than speech.[iv] The court emphasized that Chiles could still discuss gender conversion therapy with her patients.[v] She could recommend non-licensed practitioners.[vi] She could also rail against the state for its short-sightedness.[vii] She just could not offer that treatment herself.[viii]

The Evolution of the Circuit Court Split

Federal courts initially took different approaches to conversion therapy bans. Both the Ninth and Third Circuits upheld such bans, but for different reasons. The Ninth Circuit (like the Tenth) viewed talk therapy as professional conduct that happens to involve speech.[ix] Therefore, regulating talk therapy does not require the highest level of First Amendment protection.[x] The Third Circuit took a different approach, classifying talk therapy as “professional speech,” a special type of speech that only needs to satisfy an “intermediate” level of judicial review.[xi]

However, the Supreme Court’s ruling in National Institute of Family and Life Advocates v. Becerra (“NIFLA”) muddled the courts’ growing agreement regarding how strictly to review these laws.[xii] The Court rejected the idea that “professional speech” deserved special treatment as its own category.[xiii] This meant that any restrictions on professional speech must withstand the highest level of constitutional review.[xiv] Under this “strict scrutiny,” laws must be “narrowly tailored”[xv] and use the “least restrictive means” to further a “compelling government interest.”[xvi]

Following NIFLA, circuit courts split. In Otto v. City of Boca Raton, the Eleventh Circuit became the first to conclude that laws restricting conversion therapy likely violate the First Amendment.[xvii] The court characterized these laws as “viewpoint discrimination,”[xviii] a “particularly ‘egregious form’ of content discrimination.”[xix] The court was concerned that legislatures could ban therapy regimes just because they were politically unpopular or bothered a person’s religious sensibilities.[xx] However, NIFLA still permitted states to regulate professional conduct that only incidentally involved speech,[xxi] which led to the recent Tenth Circuit affirmation that legislatures can ban conversion therapy for minors.

Speech or Conduct: Standards of Judicial Review

A central question has emerged: When professionals such as lawyers, teachers, and therapists conduct their business, are they engaging in speech or conduct? The Ninth Circuit’s decision highlighted professional regulations that had passed constitutional muster, despite restricting professional speech similarly to Colorado’s Minor Conversion Therapy Law.[xxii] Nevertheless, the NIFLA decision suggests that the Supreme Court would likely view the talking professions as fundamentally producing speech as their work product.[xxiii]

Legal scholars have debated the appropriate levels of judicial scrutiny for governmental restrictions on talk therapy.[xxiv] The options range from strict scrutiny, [xxv] such as required for advertising medical treatment, to rational review, [xxvi] which only requires that public health regulations be reasonably related to state health goals. Legislatures aim to avoid viewpoint discrimination, while also preventing harm, especially to children. The lesser standard of scrutiny should allow lawmakers meet both these goals. Yet, available data strongly suggest that these bans meet even the stricter standard.

Meeting Constitutional Requirements

The evidence supporting bans on conversion therapy is compelling. Research has consistently demonstrated its association with adverse mental health outcomes, including anxiety, depression, and suicide.[xxvii] Its suicidal effects are particularly well documented in youth.[xxviii] The professional consensus is equally clear—the American Psychiatric Association and the American Psychological Association both oppose conversion therapy as being not only ineffective but also harmful to patients.[xxix] An additional 27 medical and psychological associations, including the American Medical Association, the American Academy of Child and Adolescent Psychiatry, and the American Academy of Pediatrics, agree.[xxx] Public opinion also aligns with this stance, with over 80% of Americans opposing conversion therapy for minors.[xxxi] This sentiment is reflected in bans across a majority of states[xxxii] and over 100 local jurisdictions.[xxxiii]

A strong argument exists that conversion therapy bans for minors can satisfy even strict scrutiny requirements. As Judge Hartz noted in his Chiles dissent, “the government can justify a ban on conversion therapy even if it is limited solely to speech” when supported by “good evidence.”[xxxiv] Indeed, when “typical professional regulations” are challenged, there is reason to be “more sanguine about [their] . . . survivability.”[xxxv]

States have compelling interests in protecting youth mental health and in maintaining professional standards for mental health care. The narrow scope of these laws—targeting a specific, clinically ineffective, and demonstrably harmful practice for minors—suggests appropriate tailoring. This tightly focused approach represents the least restrictive means of preventing demonstrated harm to vulnerable youth.

These bans align with what the public expects from its government: legislators should restrict harmful treatments, but preserve other practices—even if they are controversial. Banning conversion therapy for youth accomplishes this goal, and does so without contorting the First Amendment.

[i] Colo. Rev. Stat § 12-245-224(1)(t)(V) (2024).

[ii] H.B. 1129, 72d Gen. Assemb. Reg. Sess. (Colo. 2019).

[iii] Chiles v. Salazar, Civil Action No. 1:22-cv-02287-CNS-STV, 2022 U.S. Dist. LEXIS 227887, at *1 (D. Colo. Dec. 19, 2022).

[iv] Chiles v. Salazar, 116 F.4th 1178, 1206 (10th Cir. 2024).

[v] Id. at 1209.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014); see also Tingley v. Ferguson, 47 F.4th 1044 (9th Cir. 2022) (re-affirming that regulating conversion therapy regulates practice and not speech).

[x] Pickup, 740 F.3d at 1231; see also Nat’l Ass’n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) (holding that state licensing laws for mental health practices do not violate the First Amendment).

[xi] King v. Governor of N.J., 767 F.3d 216, 234 (2014).

[xii] Nat’l Inst. of Family and Life Advocs. v. Becerra, 585 U.S. 755 (2018).

[xiii] Id. at 767.

[xiv] United States v. Carolene Products Co., 304 U.S. 144 (1938). However, Justice Breyer’s dissent criticized the majority decision based on Planned Parenthood v. Casey, in which the Court held constitutional a law that required physicians to share adoption information with pregnant women contemplating abortion was constitutional. He pointed out that “[A] Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion.” Becerra, 585 U.S. at 796.

[xv] Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 101 (1972) (holding that statutes that impact the First Amendment must be narrowly tailored to their defined objectives); see also Ward v. Rock Against Racism, 491 U.S. 781 (1989); Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

[xvi] Sable Commc’ns of Cal. v. F.C.C., 492 U.S. 115, 128 (1989); see also Elrod v. Burns, 427 U.S. 347 (articulating the standard for strict scrutiny); Holder v. Humanitarian L. Project, 561 U.S. 1 (2010) (holding that while giving expert legal advice to terrorist organizations was protected speech, the restriction on that speech survived strict scrutiny).

[xvii] Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020).

[xviii] Id. at 864.

[xix] Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829-30 (1995) (explaining that viewpoint discrimination is “presumptively unconstitutional”); see also Pahls v. Thomas, 718 F.3d 1210, 1229 (10th Cir. 2013).

[xx] Otto, 981 F.3d at 871.

[xxi] Becerra, 585 U.S. at 769.

[xxii] Pickup, 740 F.3d at 1228; see also Robert Kry, The “Watchman for Truth”: Professional Licensing and the First Amendment, 23 SEATTLE U. L. REV. 885, 889 (2000) (outlining several laws regulating licensed professionals speech and how these regulations may impact First Amendment rights).

[xxiii] See also United States v. Playboy Entm’t Group, 529 U.S. 803 (2000) (holding that content-based regulations must receive strict scrutiny); Roman Catholic Diocese v. Cuomo, 592 U.S. 14 (2020) (applying strict scrutiny to COVID-19 restrictions on religious ceremonies); McCullen v. Coakley, 573 U.S. 464 (2014) and Bruni v. City of Pittsburgh, 141 S.Ct. 578 (2021) (holding that laws regulating speech near abortion clinics must meet strict scrutiny if it targets specific subject matter); However, the Court has not been consistent on this point; see Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833, 884 (1992) (finding that because informed consent only implicated speech “as part of the practice of medicine,” it can be regulated by the state).

[xxiv] Marc Jonathan Blitz, Free Speech, Occupational Speech, and Psychotherapy, 44 HOFSTRA. L. REV. 681 (2014); Brielle N. Kovalcheck, Do Actions Speak Louder Than Words?: An Analysis of Conversion Therapy as Protected Speech Versus Unprotected Conduct, 16 RUTGERS J. L. & RELIGION 428 (2015); Warren Geoffrey Tucker, It’s Not Called Conduct Therapy; Talk Therapy as a Form of Speech Under the First Amendment, 23 WM. & MARY BILL OF RTS. J. 885 (2015); Kathleen Stoughton, Toxic Therapy: Examining the Constitutionality of Conversion Therapy Bans in Light of Otto, 30 AM. U.J. GENDER SOC. POL’Y & L. 81 (2022).

[xxv] Thompson v. Western States Medical Center, 535 U.S. 357 (2002) (holding that a federal law prohibiting advertising or promoting compounded drugs violated the First Amendment).

[xxvi] Jacobson v. Massachusetts, 197 U.S. 11 (1905) (holding that mandating smallpox vaccinations bore a rational relationship to the Commonwealth’s public health interests); see also Whalen v. Roe, 429 U.S. 589 (1977) (holding that the state’s interest in preventing drug abuse justified invading patients’ privacy). Chiles, 116 F.4th, also used on a rational basis review.

[xxvii] Minnesota Department of Health, Summary of Findings: A Review of Scientific Evidence of Conversion Therapy, Executive Order 21-25 (2022) https://www.health.state.mn.us/people/conversiontherapy.pdf (summarizing the scientific evidence about the safety and effectiveness of conversion therapy and its effects on public health).

[xxviii] Id. at 11.

[xxix] Erin Connors, APA Reiterates Strong Opposition to Conversion Therapy, AMERICAN PSYCHIATRIC ASSOCIATION (2018), https://www.psychiatry.org/newsroom/news-releases/apa-reiterates-strong-opposition-to-conversion-therapy; Kim I. Mills, APA Applauds SAMHSA Report Calling for End to “Conversion Therapy” For Youth, AMERICAN PSYCHOLOGICAL ASSOCIATION (2015), https://www.apa.org/news/press/releases/2015/10/conversion-therapy.

[xxx] Opposing Conversion Therapy, APA SERVICES, INC., (2023) https://www.apaservices.org/advocacy/news/opposing-conversion-therapy; see also United States Joint Statement Against Conversion Efforts (2023), https://d3dkdvqff0zqx.cloudfront.net/groups/apaadvocacy/attachments/USJS-Final-Version.pdf.

[xxxi] Andrew R. Flores, et al., Public attitudes about emergent issues in LGBTQ rights: Conversion therapy and religious refusals. 7 RESEARCH & POLITICS (2020), https://doi.org/10.1177/2053168020966874.

[xxxii] Marc W. Pearce & Jessica K. Perrotte. Can licensed practitioners be prohibited from engaging in conversion therapy efforts? 55 MONITOR ON PSYCHOLOGY 33 (2024).

[xxxiii] List of U.S. Jurisdictions Banning Conversion Therapy. WIKIPEDIA. (2024). https://en.wikipedia.org/wiki/List_of_U.S._jurisdictions_banning_conversion_therapy.

[xxxiv] Chiles, 116 F.4th at 1237.

[xxxv] Id.