Constitutional Law and First Amendment Scholars in Successful Defense of Colorado’s Statutory Ban on Conversion Therapy for Minors
September 12, 2024
Cleary Gottlieb represented constitutional law and First Amendment scholars, as amicus curiae, in their successful defense of Colorado’s statutory ban on conversion therapy for minors in the U.S. Court of Appeals for the Tenth Circuit.
On September 12, 2024, the Tenth Circuit upheld a Colorado law banning licensed mental health care providers from practicing conversion therapy on minors in Chiles v. Salazar, et al., ruling 2-1 that the law is constitutional under the First Amendment and affirming the U.S. District Court for the District of Colorado’s denial of a request to invalidate the law. In May 2023, Cleary filed an amicus brief in support of the law on behalf of 16 constitutional law and First Amendment scholars who are professors and deans in law schools across the U.S., including Cleary alumnus Scott Skinner Thompson.
“Conversion therapy” refers to a range of mental health care techniques aimed at changing a patient’s sexual orientation, gender identity, or gender expression. It is the consensus among mental health researchers and major professional organizations that conversion therapy is ineffective and harmful, and that children exposed to the practice experience intensified depression and an increased risk of self-harm and suicidal ideation.
Colorado’s law, enacted in 2019, prohibits licensed mental health care providers from practicing this form of therapy on minor patients, and subjects individuals who violate the statute to a range of disciplinary actions including the revocation of their state license. In 2022, Kaley Chiles, a Colorado licensed professional mental health counselor who described her work as an “outgrowth of her [Christian] faith,” sued to invalidate the Colorado law, arguing in part that it abridges her right to freedom of speech under the First Amendment. After the District Court upheld the law, Chiles appealed to the Tenth Circuit.
Cleary’s brief argued that the District Court’s decision should be upheld because Colorado’s law regulates professional conduct (i.e., the provision of mental health care) rather than protected speech under the First Amendment. The brief demonstrated the Colorado law’s alignment with Supreme Court jurisprudence, pointing to Supreme Court cases holding that verbal communication that is part of the practice of professional services can be regulated without violating the Constitution’s protection of speech when such communication falls outside accepted standards of care and threatens harm to patients and clients. The brief warned that extending heightened First Amendment protection to professional services involving speech would strip states of their ability to serve and protect their citizens and would undercut licensing, tort, malpractice, and other legal regimes established to enable this purpose.
In an opinion authored by Judge Veronica Rossman, the Tenth Circuit held that the Colorado law was a regulation of professional conduct rather than First Amendment speech, citing Cleary’s brief in its analysis of the scope of state regulation of professional conduct. Applying rational basis scrutiny, the Tenth Circuit upheld the law, holding that Colorado’s ban on the provision of conversion therapy to minors served its legitimate interests in maintaining the integrity of the mental health profession and protecting minors from harmful therapeutic practices and citing the extensive record evidence demonstrating the physical and psychological harms of conversion therapy to minors, as well as Cleary’s amicus brief.
Cleary partner Tom Kessler, who, with partner Luke Barefoot, led the Cleary team, said, “We are delighted with the Tenth Circuit’s well-reasoned decision, which allows Colorado to continue to protect their citizens from the dangerous practice of conversion therapy. Cleary has been a longstanding ally in the fight to advance and protect LGBTQ rights, and we will continue to stand side-by-side with those who do that increasingly important work.”