Strict Scrutiny Applied to Colorado Conversion Therapy Ban

JD Supra Healthcare

Filed April 1st, 2026

Detected April 2nd, 2026

Summary

The U.S. Supreme Court ruled 8-1 in Chiles v. Salazar (No. 24-539) that Colorado's law banning conversion therapy by licensed counselors constitutes content- and viewpoint-based regulation of speech subject to strict scrutiny under the First Amendment. The Court rejected Colorado's argument that the law merely regulates professional conduct, finding instead that it directly targets speech and prescribes permissible viewpoints. The case was remanded to the Tenth Circuit for application of strict scrutiny.

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What changed

The Supreme Court held that Colorado's 2019 law prohibiting licensed counselors from engaging in conversion therapy with minors is a content- and viewpoint-based speech regulation subject to strict scrutiny. Justice Gorsuch's majority opinion rejected Colorado's characterization of the law as regulating professional conduct, finding it directly targets the content of speech and prescribes what viewpoints counselors may express. The Court acknowledged the law's narrow scope—it did not strike down the statute, and prohibitions on physical interventions may remain constitutional.

The decision creates significant uncertainty for conversion therapy bans in over 20 states. Healthcare providers and their legal counsel should review existing state laws to assess vulnerability under strict scrutiny analysis. Courts will now evaluate whether these laws serve compelling governmental interests and are narrowly tailored to achieve those interests. The remanded case will serve as an initial test of whether any version of Colorado's law can survive constitutional review.

What to do next

Review existing state conversion therapy bans for potential First Amendment vulnerability
Assess whether current counseling practice disclosures address speech-based regulatory concerns
Monitor Tenth Circuit remand proceedings for guidance on strict scrutiny application

Source document (simplified)

April 1, 2026

Supreme Court Holds Strict Scrutiny Applies to Colorado Conversion Therapy Law

LinkedIn Facebook X Send Embed Chiles v. Salazar, No. 24-539, 2026 WL 872307 (U.S. March 31, 2026)

The U.S. Supreme Court held, 8-1, that Colorado’s law banning conversion therapy, as applied to talk therapy by a licensed counselor, is a content- and viewpoint-based regulation of speech subject to strict scrutiny under the First Amendment. The ruling marks the first time the Court has directly addressed the constitutionality of conversion therapy bans and resolves a circuit split on the issue.

Writing for the majority, Justice Neil Gorsuch rejected Colorado’s argument that its law merely regulates professional conduct with only an incidental burden on speech. Instead, the Court found that the law directly targets the content of speech—specifically, the spoken word, which Gorsuch called “perhaps the quintessential form of protected speech.” Critically, the law “goes a step further” by prescribing what viewpoints a counselor may express.

The majority stressed that its holding is “a narrow one.” The Court did not strike down Colorado’s law and acknowledged that other applications of the statute—such as prohibitions on physical interventions—may be constitutional.

Factual Background: In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in “conversion therapy” with minors. The law defines “conversion therapy” broadly, in part, to include “any practice or treatment . . . that attempts . . . to change an individual’s sexual orientation or gender identity.”

Kaley Chiles, a licensed counselor who provides talk therapy, filed suit under 42 U.S.C. § 1983, alleging the law violated her rights under the free speech and free exercise clauses of the First Amendment.

Key Takeaways:

First Amendment protections apply with full force to speech by licensed professionals. The Court rejected any notion that “professional speech” is a separate category subject to diminished constitutional protection.
A law that regulates the content of speech cannot escape strict scrutiny merely because it also regulates non-expressive conduct in other applications.
The decision could impact conversion therapy bans in more than 20 states and prompt a wave of new constitutional challenges. Concurring Opinion: Justice Elena Kagan wrote a concurring opinion, joined by Justice Sonia Sotomayor, agreeing that Colorado’s law “conflicts with core First Amendment principles because it regulates speech based on viewpoint.” Notably, however, Justice Kagan explained that a content-based but viewpoint-neutral law would “raise a different and more difficult question”—signaling that not all conversion therapy regulations would necessarily face the same fate.

Dissenting Opinion: Justice Ketanji Brown Jackson, the lone dissenter, warned that the decision “opens a dangerous can of worms” by undermining states’ longstanding authority to regulate the practice of medicine. Justice Jackson argued that Colorado’s law regulates professional conduct—not speech “as speech”—and that its incidental burden on a talk therapist’s expression does not trigger heightened scrutiny.

Next Steps: The case has been remanded to the U.S. Court of Appeals for the Tenth Circuit to apply strict scrutiny to the law, consistent with the Supreme Court’s holding.

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