Tenth Circuit upholds Colorado’s Minor Conversion Therapy Ban

A Denver-based federal appeals court rejected Sept. 12 a constitutional attack on Colorado’s Minor Conversion Therapy Law, ruling that the state’s ban on “conversion therapy” for minors does not violate the First Amendment rights of mental health professionals. 

A panel of the U.S. Court of Appeals for the Tenth Circuit turned away the arguments of Kaley Chiles, a licensed professional counselor, and sustained a lower court’s denial of a preliminary injunction that would have allowed Chiles to continue offering the regimen to minors.

U.S. Circuit Judge Veronica S. Rossman, in her majority opinion, cited a 2018 U.S. Supreme Court decision as precedent requiring the 10th Circuit ruling.

In that case the justices held that “more deferential review” should apply to “some laws that require professionals to disclose factual, noncontroversial information in their commercial speech” and that the states “may regulate professional conduct, even though that conduct incidentally involves speech.”

The decision in Chiles v. Salazar aligns the 10th Circuit, which has jurisdiction over cases arising in New Mexico, Oklahoma, Utah, and Wyoming in addition to Colorado, with the San Francisco-based U.S. Court of Appeals for the Ninth Circuit.

The case arose after Chiles sought a federal district court order to block enforcement of the MCTL. A practicing Christian, she asserted that the law prevented her from counseling clients according to their self-identified goals, particularly those minors who wished to align their sexual orientation or gender identity with their faith. Chiles maintained that her counseling services did not involve “aversive techniques,” which are explicitly prohibited under the statute.

U.S. District Judge Charlotte N. Sweeney denied Chiles’ request for a preliminary injunction in December 2022, ruling that she had not demonstrated a likelihood of success on the merits of her First Amendment claims. The court found that Colorado’s law was content-neutral and aimed at protecting the psychological and physical well-being of minors, which justified the restriction on professional speech. 

Rossman’s opinion affirming Sweeney’s ruling emphasized that the MCTL “is neutral on its face and does not target speech based on its content or viewpoint.” Rossman also stressed that the statutory limitation on counseling aimed at changing a person’s sexual orientation is justified by the state’s interest in safeguarding minors from potentially harmful practices. “From time immemorial, states have enacted regulations to secure against the consequences of ignorance and incapacity by medical professionals,” she wrote. 

Numerous professional organizations in the medical and counseling fields have denounced “conversion therapy” as harmful to children and teenagers. Among others, they include the American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American Counseling Association, American Medical Association, American Psychiatric Association, and National Association of Social Workers. 

Colorado enacted the MCTL in 2019 as part of a broader national effort to respond to the guidance of healthcare professionals on the question of whether to restrict “conversion therapy.” According to the National Center for Lesbian Rights the practice is banned in 22 states, the District of Columbia, and at least 115 cities and towns across the nation.

Rossman’s opinion pointed out that the panel’s opinion does not prevent counselors from expressing their views on the merits of “conversion therapy.” “Ms. Chiles may, in full compliance with the MCTL, share with her minor clients her own views on conversion therapy, sexual orientation, and gender identity,” the judge wrote. “She may exercise her First Amendment right to criticize Colorado for restricting her ability to administer conversion therapy. She may refer her minor clients to service providers outside of the regulatory ambit who can legally engage in efforts to change a client’s sexual orientation or gender identity.”

The panel also noted that the MCTL does not prohibit provision of “conversion therapy” to adults. “[O]nce a minor client reaches the age of majority, Ms. Chiles may provide conversion therapy to that client.”

In a dissenting opinion, Circuit Judge Harris L. Hartz argued that the statute unfairly targets a specific form of counseling – speech-based therapy – and imposes an unjustified burden on therapists who seek to help minors based on their religious beliefs or personal goals. “[T]he conduct being regulated here is speech itself, and it is being regulated because of disapproval of its expressive content,” Hartz wrote.

Rossman dismissed that objection in a footnote. “[W]hether Ms. Chiles’s conduct complies with the statute depends on the intended effect of the therapeutic treatment being administered: the conduct is prohibited only if the therapy is intended to change an individual’s sexual orientation or gender identity,” she wrote.

The case is part of a broader national debate over the legality of conversion therapy bans. Several other federal appellate courts have ruled on similar laws. The Ninth Circuit upheld a Washington law that is similar to Colorado’s in a 2022 decision, while the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit found in 2020 that a local ban on “conversion therapy” ran afoul of the First Amendment.

The 10th Circuit ruling could have far-reaching consequences if the Supreme Court decides to address the split among federal appellate courts. The justices declined to review the 9th Circuit decision in Tingley v. Ferguson.