Blue Brief 2025-2026

Miranda McGowan

Professor of Law

Chiles v. Salazar: Free Speech and the Limits of State Bans on Conversion Therapy

VI. T wenty-three states and the District of Columbia ban licensed healthcare providers from attempting to change the sexual orientation or gender identity of LGBTQ minors but permit therapy to affirm it. Colorado had been the twenty-fourth state before the Court held in Chiles v. Salazar that Colorado’s ban constituted viewpoint discrimination under the First Amendment. including minors. She claimed that Colorado’s ban, as applied to her talk therapy, constituted viewpoint discrimination and violated her First Amendment free speech rights. She uses talk therapy to help minor patients fulfill their own goals — whether to affirm their LGBTQ identity or to change their same-sex attraction or live in “ harmony with [their] physical body .” She did not challenge — nor did the Court decide — whether any other application of the law, say to aversive therapy, was unconstitutional. Aversive Kaley Chiles, a licensed therapist in Colorado, only offers talk therapy to her clients —

therapy can include shock therapy or other conditioning techniques designed to create negative associations with unwanted thoughts or feelings. Such techniques can include telling a patient to snap a rubber band on their wrist or pairing images, thoughts, or feelings of same sex attraction or a gender identity inconsistent with sex assigned at birth with nausea-inducing substances. Whether Colorado can prohibit those kinds of treatments consistent with the First Amendment remains an open question. The lower courts had held that Ms. Chiles’s talk therapy was not considered speech for First Amendment purposes but the professional practice of psychology. Colorado law therefore regulated her professional conduct as a therapist. Outside of her therapist’s office, Ms. Chiles still could advocate for any position related to LGBTQ causes.

In March, the Supreme Court reversed in an 8-1 decision written by Justice Gorsuch. Talk

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 20