Cleary Files Supreme Court Amicus Brief in Chiles v. Salazar, et al. in Support of Colorado’s Statutory Ban on ‘Conversion Therapy’

Cleary Gottlieb filed an amicus brief in support of respondents in Chiles v. Salazar, et al., currently before the U.S. Supreme Court, on behalf of 22 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 healthcare providers from practicing conversion therapy on minors is constitutional.

“Conversion therapy” refers to a range of mental healthcare 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 it experience increased risks of depression, self-harm, and suicidal ideation. In addition to Colorado, 23 other states and the District of Columbia have passed similar statutes.

Colorado’s law, enacted in 2019, prohibits licensed mental healthcare providers from practicing “conversion 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 2022, 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. Both the District Court and Tenth Circuit upheld Colorado’s statute, holding that it does not regulate “speech” but rather conduct (i.e., the provision of mental healthcare). The amici represented by Cleary argued that the Tenth Circuit’s judgment should be affirmed because the “speech” in which Ms. Chiles seeks to engage is incidental to her conduct as a licensed mental healthcare provider, and under the Supreme Court’s First Amendment jurisprudence, state regulations of licensed professional conduct—particularly in the realm of health care—are not subject to heightened First Amendment scrutiny.

The brief explains that under consistent and longstanding Supreme Court doctrine, verbal or written communications made by licensed professionals in the performance of their professional activities 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 all professional services involving speech would strip states of their ability to serve and protect their citizens, eviscerate licensing, tort, malpractice, and other legal regimes established to enable this purpose, and risk weakening the strict scrutiny standard of review.

Cleary partner Tom Kessler, who led the team together with partner Luke Barefoot, said, “Cleary has been standing with the LGBTQ community for decades, and we are thrilled to carry forward that deep commitment by advocating to the U.S. Supreme Court on behalf of these scholars to defend Colorado’s conversion therapy ban. As our clients explain, the First Amendment does not prevent states from enacting reasonable regulations aimed at protecting some of their most vulnerable citizens against dangerous and discredited so-called ‘treatment,’ like the harmful, pseudoscientific practice of conversion therapy.”

Read the amicus brief.