Cleary Gottlieb filed an amicus brief on May 5, 2023, in the Tenth Circuit Court of Appeals on behalf of sixteen scholars of constitutional law and the First Amendment, who are professors and deans in law schools across the U.S., including Cleary alumnus Scott Skinner Thompson, arguing that Colorado’s statute banning licensed mental health care providers from practicing conversion therapy on minors is constitutional.
“Conversion therapy” refers to a range of mental health care techniques aimed at changing a patient’s sexual orientation, gender identity, or gender expression. It is the consensus among mental health researchers and major professional organizations that conversion therapy is ineffective and harmful, and that children exposed to the practice experience intensified depression and an increased risk of self-harm and suicidal ideation.
Colorado’s law, enacted in 2019, prohibits licensed mental health care providers from practicing this form of therapy on minor patients and subjects individuals who violate the statute to a range of disciplinary actions, including the revocation of their state license. In Chiles v. Salazar et al., Ms. Chiles, a professional mental health counselor, sued to invalidate Colorado’s statute, arguing in part that it abridges her right to freedom of speech under the First Amendment. The district court upheld Colorado’s statute, holding that Colorado’s statute does not regulate “speech,” but rather conduct (i.e., the provision of mental healthcare). Chiles appealed to the Tenth Circuit. The amici wrote in support of affirming the lower court’s ruling on the basis that the law does not regulate protected speech under the First Amendment because it prohibits professional conduct, not pure speech.
The brief explains that under consistent and longstanding Supreme Court doctrine, verbal communication that is part of the practice of professional services can be regulated without violating the Constitution’s protection of speech when such communication falls outside accepted standards of care and threatens harm to patients and clients. It warns that to extend heightened First Amendment protection to professional services involving speech would strip states of their ability to serve and protect their citizens and would undercut licensing, tort, malpractice, and other legal regimes established to enable this purpose.
Tom Kessler, who led the Cleary team with Luke Barefoot, said, “Cleary has a long history of working to advance and protect LGBTQ rights, and we were delighted to write on behalf of these scholars to defend Colorado’s conversion therapy ban. As our clients explain, the First Amendment does not prevent states from acting to protect some of their most vulnerable citizens against dangerous and discredited mental health therapies like conversion therapy.”
Read the amicus brief here.