Last year I wrote about the Court’s oral arguments in Chiles v. Salazar relating to whether Colorado’s “conversion therapy” ban violated the First Amendment. Recently, the Supreme Court issued its decision. Chiles v. Salazar, No. 24-539, 607 US ___ (Mar 31, 2026).
To recap, the law in question Colo. Rev. Stat. §12-245-224(1)(t)(V) defined conversion therapy as “any practice or treatment … that attempts … to change an individual’s sexual orientation or gender identity,” or “efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” Colo. Rev. Stat. §12-245-202(3.5)(a).
Even so, the same law allowed counselors to provide “[a]cceptance, support, and understanding for … identity exploration and development” or to assist “a person undergoing gender transition.” Colo. Rev. Stat. §12-245-202(3.5)(b)(I)–(II).
The petitioner, a licensed mental health counselor, filed a “pre-enforcement” challenge asking the district court for an injunction against the law as it applied to her practice. The petitioner also challenged the Colorado law under the First Amendment as it applied to her use of talk therapy.
Both the district court and the 10th Circuit court found that the Colorado law was best understood as a law regulating professional conduct, and that speech was regulated incidentally. As such, these courts applied rational basis review under the First Amendment and denied the petitioner’s requests for an injunction.
The Supreme Court disagreed with this reasoning. Instead, the Court characterized the Colorado law as specifically relating to the content of speech. Chiles v. Salazar, 146 S. Ct. 1010, 1026 (2026).
The state then pivoted to arguing that even if the law did regulate the content of speech, that such regulations were permitted given the historical tradition of states governing speech in certain industries such as medicine. Id. Afterall, state law often requires such speech as a physician providing “informed consent” to their patients.If the state could demonstrate this, this would fall within a narrow exception to traditional free speech jurisprudence.
But the Court distinguished such regulations from the Colorado law and pointed out that these regulations governing speech in the medical field all had as their end speech incident to conduct. For instance, laws requiring informed consent were related to medical procedures patients were electing to undergo. Id. at 1028. On the other hand, the Colorado law at issue was directed solely at the viewpoint of a given therapist—and the state could not point to any historical tradition which specifically governed medical practitioner’s viewpoints so overtly without any connection to conduct.
As such, the 10th Circuit’s decision was reversed and remanded.
The attorneys at Dalton & Tomich, PLC will continue to stay appraised of developments relating to the Supreme Court’s treatment of the First Amendment. If you believe that your First Amendment free speech rights have been violated, we would be happy to speak with you.
