Blue Brief 2025-2026

Finally, the Court chided Colorado for where its logic could one day lead. Before 1973, medical consensus was that “homosexuality” was “a mental disorder.” Were medical consensus to return to that view, Colorado’s logic would permit states to prohibit LGBTQ-affirming therapy. Justices Kagan and Sotomayor concurred , but posited that a content-based but viewpoint neutral law might fare better under the First Amendment. Viewpoint-neutral measures might include a rule prohibiting therapy aimed at changing a patient’s sexual orientation or gender identity in any direction. Another viewpoint-neutral regulation could be to impose greater informed consent requirements about the dangers or efficacy of treatments to change sexual orientation or gender identity. Both would restrict speech because of its content —

therapy related to sexual orientation or gender identity has to satisfy certain requirements that other types of therapy do not. Under such an approach, a state might still plausibly argue that such a law served a compelling state interest of protecting minors’ lives and psychological stability and was narrowly tailored to achieve those ends. Chiles is a narrow decision — as applied to Ms. Chiles’s therapy, the ban is viewpoint-based. Whether other applications — say to aversive therapy or therapy specifically designed to convert a minor from gay to straight or from transgender to cisgender — also discriminate on the viewpoint of the therapist’s speech remains an open question. So, too, whether viewpoint neutral restrictions that achieve the same ends might be constitutional.

Miranda McGowan

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 22