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The constitutionality of a Colorado law that bans so-called “conversion therapy” is scheduled to go before the Supreme Court on Oct. 7, 2025. The question at the center of the case, Chiles v. Salazar, is whether a therapist who uses talk therapy to try to convince minors to change their sexual orientation or gender identity is protected by a First Amendment right to free speech.

Twenty-three other states and the District of Columbia also ban conversion therapy.

I am a legal scholar who has explored aspects of the rights of the LGBTQ+ community, and this case is an important test of the status of the community’s rights and protections at the Supreme Court.

Why it matters

The case has similarities to the court’s 2025 decision in United States v. Skrmetti that upheld state laws banning gender-affirming care for transgender minors, such as the use of puberty-blocking hormones. LGBTQ+ persons viewed those bans as hurting the community, whereas bans like Colorado’s on conversion therapy are viewed as protecting the community.

Technically, the legal issue in Skrmetti was different: The court addressed whether the ban violated the equal protection clause of the 14th Amendment, which prohibits states from discriminating against particular protected classes, such as race or gender, absent a particularly strong state interest. In the Skrmetti decision, the court held there was no discrimination on the basis of sex, which meant the law received no heightened scrutiny.

Instead, the court assessed whether there was a “rational basis” for the law and held that Tennessee had “plausible reasons” for the ban: protecting minors from harms such as sterility and treatments whose long-term effects are unclear. The court upheld the law banning gender-affirming care even though major U.S. medical professional associations oppose such bans and support such care.

The facts of Chiles

In Chiles, the issue is freedom of speech, not equal protection. But this time the Colordo ban on conversion therapy aligns with leading medical associations.

Kaley Chiles is a licensed professional counselor who uses talk therapy in her counseling practice. Chiles identifies as Christian and often works with Christian clients. Chiles “does not try to help minors change their attractions, behavior, or identity, when her minor clients tell her they are not seeking such change.” She would like to use talk therapy with clients “who have same-sex attractions or gender identity confusion and who also prioritize their faith above their feelings” and who “are seeking to live a life consistent with their faith,” according to court filings.

Chiles sued Colorado to invalidate the statute as unconstitutional for violating her freedom of speech and religion under the First Amendment of the U.S. Constitution. Both the federal district court in Colorado and the U.S. Court of Appeals for the 10th Circuit denied her request for a preliminary injunction, rejecting both arguments.

The Supreme Court agreed only to hear her free speech claim, leaving the 10th Circuit’s rejection of her religious liberty claim in place.

Is ‘talk therapy’ speech or conduct?

The Supreme Court first will need to address whether talk therapy is protected speech under the First Amendment. This decision likely will determine the case’s outcome.

Chiles contends that talk therapy is protected speech and that Colorado is impermissibly regulating the content of her potential speech. The law permits her to help minor clients embrace their sexual orientation or gender identity through talk therapy but not to change it. If this therapy is speech, it would be regulating the content of her speech because the law determines what can and cannot be said. Affirming talk therapy is allowed, but conversion therapy is prohibited.

Colorado, however, insists that the statute regulates medical conduct, which is not protected by the First Amendment, even if there is an incidental burden on speech.

A state undisputably can regulate medical activity, such as the prescription of a medicine. If the therapy involved the use of medicines, there would be no dispute because no speech would be involved. The Colorado conversion therapy ban is part of a broader statute, the Mental Health Practice Act, which prohibits acts that could harm patients. Thus, talk therapy, according to Colorado, is treatment – like providing medicine – that the state is free to regulate.

Conversion therapy is also deemed ineffective and harmful to children by leading medical associations, such as the American Psychiatric Association and the American Medical Association. The 10th Circuit noted that the Colorado ban regulates treatment, not expression, because Chiles is free to share her views on conversion therapy, even with minors. She simply cannot engage in actual therapy under the law.

The Supreme Court will need to decide whether talk therapy is speech or conduct. The court often takes a broad view of what constitutes speech, particularly in the area of LGBTQ+ rights. In 303 Creative LLC v. Elenis, another case out of Colorado, the court held that creating a wedding webpage was deemed protected speech. This 2023 decision permitted the webpage designer to deny services to same-sex couples requesting webpages for their weddings, in violation of Colorado’s law prohibiting sexual orientation discrimination.

If the court concludes that conversion therapy is conduct, then the Colorado law is subject to the same standard used in Skrmetti – rational basis – and likely will survive. In light of 303 Creative, however, the court may deem it speech.

If talk therapy is speech, can Colorado ban it?

Simply because an act constitutes speech protected by the First Amendment does not mean the state cannot regulate it. For example, the state can rightly regulate defamatory statements or obscene material.

Courts, however, apply an exacting standard of review, known as strict scrutiny, and rarely does a law survive such analysis. Colorado must show that its ban on conversion therapy is narrowly tailored to achieve a compelling state interest. Colorado contends that ensuring minors receive safe and effective mental health care is a compelling interest, and the law is narrowly tailored because “(i)t prohibits only specific harmful treatment while leaving therapists free to engage in any other appropriate therapy.”

Chiles’ strongest argument is that the law is not narrowly tailored for a number of reasons. Chiles contends the law is too broad because it bans more speech than necessary to protect against any harms to LGBTQ+ minors, including any therapy to change behavior, expression, identity or feeling.

For example, she argues she could not counsel a gay client toward celibacy. It is also not properly tailored, Chiles argues, because it exposes minors to the harms of conversion therapy by its omissions: It applies only to licensed mental health professionals and not others, such as life coaches, and it applies only to minors. If conversion therapy is as harmful as Colorado alleges, these gaps show the lack of proper tailoring, says Chiles.

The court has frequently struck down laws that regulate the content of speech. If the court concludes that talk therapy is protected speech, it is likely the court will find the Colorado ban on conversion therapy unconstitutional.

Such a decision would contrast sharply with Skrmetti. If the court strikes down the Colorado law, then a law meant to protect LGBTQ+ minors will be invalidated while one deemed harmful to trans minors will stand.

The court again will have gone against the predominant view of medical experts in a way detrimental to the LGBTQ+ community, potentially adding to criticism of the Supreme Court as being too political.

Read more of our stories about Colorado.

Timothy R. Holbrook does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

The day before Charlie Kirk was assassinated, I was teaching a college class on science, religion and magic. Our class was comparing the Salem witch trials of the 1690s with the McCarthy hearings of the early 1950s, when U.S. democratic processes were eclipsed by the Red Scare of purported communist infiltration.

The aim of the class was to better understand the concept of moral panics, which are societal epidemics of disproportionate fear of real or perceived threats. Such outsized fear can often lead to violence or repression against certain socially marginalized groups. Moral panics are recurring themes in my research on the anthropology of fear and discrimination.

Our next class meeting would apply the moral panic concept to a recent example of political violence. Tragically, there were many of these examples to choose from.

Minnesota State Representative Melissa Hortman and her husband were assassinated on June 14, 2025, which happened to be the eighth anniversary of the congressional baseball shootings in which U.S. House Majority Whip Steve Scalise and three other Republicans were wounded. These shootings were among at least 15 high-profile instances of political violence since Rep. Gabby Gifford was severely wounded in a 2011 shooting that killed five and wounded another 13 people.

Seven of these violent incidents occurred within the past 12 months. Kirk’s killing became the eighth.

In most of these cases, we may never fully know the perpetrator’s motives. But the larger pattern of political violence tracks with the increasing polarization of American society. While researching this polarization, I have found recurring themes of segregation and both the dehumanization and disproportionate fear of people with opposing views among liberals and conservatives alike.

Segregation and self-censorship

The first ingredient of a moral panic is the segregation of a society into at least two groups with limited contact between them and an unwillingness to learn from one another.

In 17th century Salem, Massachusetts, the social divisions were long-standing. They were largely based on land disputes between family factions and economic tensions between agriculturally-based village communities and commercially-based town communities.

Within these larger groups, a growing number of widowed women had become socially marginalized for becoming economically independent after their husbands died in colonial wars between New England and New France. And rumors of continuing violence led residents in towns and villages to avoid Native Americans and new settlers in surrounding frontier areas. Salem was divided in many ways.

Fast forward to the end of World War II. That’s when returning American veterans used their benefits to settle into suburban neighborhoods that would soon be separated by race and class through zoning policies and discriminatory lending practices. This set the stage for what has come to be called The Big Sort, the self-segregation of people into neighborhoods where residents shared the same political and religious ideologies.

It was during the early stages of these sorting processes that the Red Scare and McCarthy hearings emerged.

The Big Sort turned digital in the early 2000s with the rise of online information and social media platforms with algorithms that conform to the particular desires and biases of their user communities.

Consequently, it is now easier than ever for conservatives and liberals to live in separate worlds of their own choosing. Under these conditions, Democrats and Republicans tend to exaggerate the characteristics of the other party based on common stereotypes.

Dehumanization and discrimination

Dehumanization is perhaps the most crucial ingredient of a social panic. This involves labeling people according to categories that deprive them of positive human qualities. This labeling process is often conducted by “moral entrepreneurs” – people invested by their societies with the authority to make such claims in an official, unquestionable and seemingly objective way.

In 1690s Massachusetts, the moral entrepreneurs were religious authorities who labeled people as satanic witches and killed many of them. In 1950s Washington, the moral entrepreneurs were members of Congress and expert witnesses who labeled people Soviet collaborators and ruined many of their lives.

In the 21st century, the moral entrepreneurs include media personalities and social influencers as well as the nonhuman bots and algorithms whose authority is derived by constructing the illusion of broad consensus.

Under these conditions, many U.S. liberals and conservatives regard their counterparts as savage, immature, corrupt or malicious. Not surprisingly, surveys reveal that animosity between conservatives and liberals has been at its highest over the past five years than any other time since the measurements first began in 1978.

Adding to the animosity, dehumanization can also justify discrimination against a rival group. This is shown in social psychology experiments in which conservatives and liberals discriminate against one another to a greater degree than by race when deciding on scholarships and job opportunities. Such discrimination lends credence to further animosity.

Exaggerating fear

There is a fine line between animosity and disproportional fear. The latter can lead to extreme policies and violent actions during a moral panic.

Such fear often takes the form of perceived threats. Rachel Kleinfeld, a scholar who studies polarization and political violence, says that one of the best ways to rally a political base is to make them think they are under attack by the other side. She says that “is why ‘They are out to take your x’ is such a time-honored fundraising and get-out-the-vote message.”

In the past few years, the “x” that could be taken has escalated to core freedoms and personal safety, threats which could easily trigger widespread fear on both sides of the political divide.

But the question remains whether exaggerated fears are sufficient to trigger political violence. Are assassins like Kirk’s killer simply pathological outliers among agitated but otherwise self-restrained populations? Or are they sensitive indicators of a looming social catastrophe?

Countering the panic

We do not have the answers to that question yet. But in the interim, there are efforts in higher education to reduce animosity and encourage constructive interactions and discussion between people with different perspectives.

A nonpartisan coalition of faculty, students and staff – known as the Heterodox Academy – is promoting viewpoint diversity and constructive debates on over 1,800 campuses. The college where I teach has participated in the Congress to Campus program, promoting bipartisan dialogue by having former legislators from different parties engage in constructive debates with one another about timely political issues. These debates serve as models for constructive dialogue.

It was in the spirit of constructive dialogue that my class debated whether the Kirk assassination could be explained as the product of a moral panic. Many agreed that it could, and most agreed it was probably an assault on free speech despite having strong objections to Kirk’s views. The debate was passionate, but everyone was respectful and listened to one another. No witches were to be found in the class that day.

Ron Barrett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation

The most influential cases before the U.S. Supreme Court this term, which begins on Oct. 6, 2025, reflect the cultural and partisan clashes of American politics.

The major cases in October and November address the role of race in elections, conversion therapy and the Trump tariffs. Later cases include campaign finance and transgender sports.

This year’s controversies focus on three dominant themes. One is the continuing constitutional revolution in how the justices read our basic law. The court has shifted from a living reading of the Constitution, which says the Constitution should adapt to the American people’s evolving values and the needs of contemporary society, to an original reading, which aims to enforce the constitutional principles understood by the Americans who ratified them.

Another clear theme is the deep cultural division among Americans. The core disputes at the court this year reflect controversial factual questions about gender and race: How pervasive and influential is racism in the current day? Are gender transitions a recognized fact, which means that they must be accepted in sports competitions, or can a state assert that trans athletes are not women?

A final theme is the struggle for partisan advantage embedded in several cases.

Constitutional revolution

Until just a few years ago, the majority of justices would have agreed that the proper way to read the Constitution was as an evolving document, an approach usually described as living constitutionalism.

The new majority reads the Constitution as an expression of enduring principles, which maintain their historical meaning unless the American people collectively decide to amend the document, an approach known as originalism.

Since 2022, this revolutionary shift has led to dramatic changes in the law on abortion, religion, guns, affirmative action and the power of federal agencies to regulate in areas such as the environment, public health or student debt.

This year, the constitutional revolution – “a historic constitutional course correction.” as legal scholars Gary Jeffrey Jacobsohn and Yaniv Roznai put it – turns to transgender politics.

Little v. Hecox and West Virginia v. B.P.J. ask whether a state can ban transgender athletes from participating in girls or women’s sports. The plaintiffs are middle school and university students who were banned by state laws from participating as a female competitor. They are asking the court to rule that transgender identity is a protected category similar to race and gender under the equal protection clause of the 14th Amendment.

Originalists argue that the meaning of the 14th Amendment is clear and fixed. It establishes the equal status of racial minorities as holders of rights. But originalists do not believe the equal protection clause was meant to apply to sexual identities unless that is explicitly approved through a constitutional amendment by the American public.

Originalists also emphasize the role of federalism as a core constitutional principle. Federalism allocates a great deal of authority to state legislatures to make decisions when a question of rights is uncertain.

For these reasons the court majority is likely to see the regulation of who gets to participate in women’s sports as a state-by-state decision.

Cultural divisions, disputed perceptions

The status of transgender identity also reflects the disputed perceptions of reality that have come to dominate American politics. In essence, the Iowa and West Virginia sports cases ask the court to rule whether a transgender girl – a person assigned male at birth who has transitioned to align with their identity as a girl or woman, as the AP Stylebook phrases it – is a girl or a boy.

The court is likely to leave such questions about what is factually true for state legislatures to determine.

The same need for the court to determine who can decide what is or is not a legitimate fact also applies to this year’s controversy over conversion therapy. Colorado bans the practice – condemned by many professional medical associations – in which counselors attempt to alter sexual orientation or gender identity.

Chiles v. Salazar challenges the Colorado law as a violation of the First Amendment’s protections of free speech and religious liberty.

An original reading of the First Amendment provides strong support for open expression on controversial topics, even by medical professionals. But on the factual question of whether homosexuality or gender identity in young people is indisputably innate or immutable, the court may defer to state legislatures to decide whether licensed professionals must assert only a specific set of accepted facts.

Partisan advantage

Many observers perceive a partisan as well as principled divide on the current court. Decisions in several cases this year potentially give a distinct advantage in future elections to Democrats or Republicans.

The most clear case may be about the regulation of campaign finance. National Republican Senatorial Committee v. FEC – a lawsuit begun in 2022 by then-U.S. Sen. JD Vance – asks the court to overturn a restriction that bars political parties from coordinating unlimited spending on campaign advertising with the official campaign.

Many Democrats believe Republicans will be the larger beneficiaries in the coming years if the court rules that the current limits violate the First Amendment.

Then there’s the challenge to the constitutionality of the Trump tariffs.

Learning Resources v. Trump will determine whether the recent tariffs are authorized by Congress under the International Emergency Powers Act of 1977. The answer hinges on the application of what’s known as the “major questions doctrine,” which limits presidential authority over issues of great economic or policy importance in the absence of direct endorsement from Congress.

The major questions doctrine is an originalist concept, but in the court’s view it may not apply to actions in the foreign policy realm – including tariffs – where the president has greater discretion.

Race and elections

The case that represents all three trends at the court is Louisiana v. Callais on the creation of majority-Black congressional districts.

The Voting Rights Act of 1965 outlaws racial discrimination in voting. This landmark legislation from the civil rights era helped raise the rate of Black voter registration and turnout in Southern states from less than half the white rate to exceeding it over the past 60 years.

The question in front of the court is whether the law requires a state to make sure that some congressional districts have a majority of Black voters.

The argument opposing the intentional creation of racial districts is that the equal protection clause of the 14th Amendment demands the same treatment of all citizens regardless of race, banning any distinction even when designed to benefit minorities.

Underlying the differences of opinion are competing perceptions of the prevalence and influence of racism in the current day. This dispute was clear in the court’s 2013 Shelby County decision, which struck down the part of the Voting Rights Act that limited Southern states from passing new elections laws without “pre-clearance” from the Department of Justice. That requirement aimed to ensure that new laws would not discriminate against Black voters, whether intentionally or unintentionally.

In striking down that requirement, Chief Justice John Roberts ruled that “no one can fairly say” that the South “shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965.”

Justice Ruth Bader Ginsburg famously responded that removing the Voting Rights Act’s protections was “like throwing away your umbrella in a rainstorm because you are not getting wet.”

The ultimate number of majority-Black districts in Louisiana is not only a question of constitutional principles applied to prevailing facts. It is also about partisan advantage. Partisans on both sides are well aware that a majority-Black district is also a Democratic district.

So whether the state ends up with two or just one – or potentially even none – of its six congressional districts shaped by race could shift the future partisan balance in a closely divided Congress.

With partisan advantage, clashing perceptions of reality and revolutionary readings of the Constitution all in play, the rulings of the Supreme Court this year will reach far into American politics and culture.

Morgan Marietta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

​Politics + Society – The Conversation