How the Supreme Court ruling could reshape conversion therapy bans

• The U.S. Supreme Court's March 31 ruling against Colorado's ban on talk-based conversion therapy said the First Amendment bars "any effort to enforce orthodoxy in thought or speech in this country."
• The ruling sends the case back down to a lower court to apply a stricter standard in determining whether the state's law violates the First Amendment.
• Experts had an array of responses to the ruling, but several said the matter ultimately hinges on whether the way such laws are written to regulate speech based on viewpoint.

How big of an impact will the U.S. Supreme Court's March 31 ruling on speech-based conversion therapy have on the First Amendment? That will depend on how states across the nation have drafted their laws regulating the practice, legal experts say.

In an 8-1 ruling, the Supreme Court handed a win to a therapist challenging Colorado's ban, agreeing that the Denver-based 10th U.S. Circuit Court of Appeals should have applied a stricter constitutional test to evaluate the law.

The court sent the case back to the appeals court to be reconsidered under the tougher First Amendment test, which it is unlikely to pass.  Under strict scrutiny, the government has to prove that a restriction on speech is narrowly tailored to protect a compelling interest, which is generally preventing harm to an individual or the public at large, according to the Freedom Forum.

Colorado’s Minor Conversion Therapy Law, which went into effect in 2019, defines conversion therapy as attempts to “change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” 

“Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same,” Justice Neil Gorsuch wrote in the majority opinion. “But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.” 

Justice Ketanji Brown Jackson was the only one to dissent, writing that the First Amendment does not bar a state from “prevent(ing) its licensed talk therapists from using speech to harm the minors in their care.” 

Alliance Defending Freedom, which represented therapist Kaley Chiles in the case, welcomed the ruling in a virtual news conference on March 31. 

Jim Campbell, the organization's chief legal counsel, called it a “decisive win for free speech,” while Chiles said she hopes the ruling “fuel(s) a greater pursuit of truth, both amongst the professionals and in the counseling room.”  

“Kids deserve real help affirming that their bodies are not a mistake, and that they are wonderfully made,” she said. “I am grateful that my speech is protected, but I’m even more excited that families and children seeking access to counseling that respects biological reality will be able to get the help that they need.”  

Impact depends on wording of state laws, experts say

The extent to which speech and conduct can and should receive different constitutional protection is an ongoing topic in First Amendment law, according to Brett Nolan, senior attorney at the Institute for Free Speech, which filed a friend-of-the-court brief in the case. 

Nearly half of U.S. states as well as Washington, DC, have laws banning conversion therapy for minors, according to Axios. Nolan described Chiles’ case as “really important” but said the true impact of the March 31 ruling depends on the language of other states’ laws as it relates to speech-based conversion therapy, he said. 

While the court’s opinion referenced limits to free speech, such as defamation and “fighting words,” Nolan said such categories are “very, very narrow” and few cases meet the required standards to allow government censorship under the law.  

The ruling is a “real meat-and-potatoes, back to basics First Amendment decision,” Ronnie London, general counsel at the Foundation for Individual Rights and Expression, told USA TODAY. It reinforces the "building blocks of First Amendment law,” he said, including the principle that laws regulating speech based on viewpoint are “anathema” to the Constitution. 

It doesn’t call into question bans on conversion therapy methods that are not speech-based, such as electric shocks and the use of nausea-inducing chemicals, he said.  

London hopes the ruling will “put the final nail in the coffin” of notions that professional speech warrants less constitutional protection.  

Richard Katskee, a law professor at Duke University, viewed it differently.  

If talk therapy is designed as a treatment plan, he said, it should face the same government regulations as other medical and professional practices.  

Though he was “disappointed” by the decision, he was “not surprised” because of what he perceived as some justices’ “hostility” to the LGBTQ community.

He referenced the court’s 2025 ruling upholding Tennessee’s ban on gender-affirming care for minors and contrasted it with the March ruling. 

“If the court wants to talk about (being) fair and equal and not engaging in viewpoint discrimination, it might look at its own decisions next to each other and think about whether the pot is calling the kettle black,” Katskee said. 

Ken Paulson, director of Middle Tennessee State University’s Free Speech Center, said the lower court will likely rule against Colorado's law again when it applies the stricter standard. That could prompt challenges to similar laws around the country, and given the Supreme Court’s ruling, it’s “highly likely” many will be struck down, he said.  

At the same time, he doesn’t expect all regulation of professional speech to be tossed aside. Ultimately, it boils down to how such laws are drafted, Paulson, a former USA TODAY editor in chief, said. 

“It’s important not to read more into this decision than is actually there,” he said. 

Contributing: Maureen Groppe 

BrieAnna Frank is a First Amendment reporter at USA TODAY. Reach her at [email protected]. 

USA TODAY's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.