Does a state-licensed psychotherapist have a First Amendment right to provide “conversion therapy” counseling even though her profession defines it as a violation of its standard of care? The Supreme Court heard oral argument on that question on October 7 in a case from Colorado, which in 2019 became the eighteenth state in the country to ban conversion therapy for minors. Today twenty-five states and the District of Columbia ban such treatment, because the profession has determined that it does not work and can cause serious harm.
In 2022 Kaley Chiles, a state-licensed counselor, challenged the ban in federal court. (I signed an amicus brief of constitutional law scholars in support of Colorado, and provided pro bono advice to the state’s attorneys in defending the law.) She maintains that that she has a First Amendment right to practice conversion therapy—notwithstanding her profession’s consensus that it violates the standard of care—as long as it consists only of words. For the state to prevent her from doing so would, she maintains, amount to censorship of a disfavored point of view, namely that one can willfully change one’s sexual orientation or gender identity. The justices’ questions at oral argument suggest that they may well agree.
But Chiles’s argument cannot be squared with history, tradition, or common sense. States have long regulated professional conduct, including in the talking professions such as counseling and law, and the general obligation that a professional must provide services that comport with the standard of care is as old as the professions themselves. Even before the United States was founded, the colonies enforced malpractice and required that professionals be licensed and provide services that met their profession’s standard. Each profession has its requirements: lawyers must avoid conflicts of interest and provide advice based on existing precedent; doctors must obtain informed consent and provide evidence-based diagnoses; therapists must conduct recognized modes of therapy. A lawyer would run afoul of the profession’s standards by writing a brief urging the Supreme Court to side with his client because the moon is in Capricorn; so would a therapist who claims she can cure blindness through talk therapy. The purpose behind such standards is clear—to protect often vulnerable patients or clients from being preyed upon by professionals who hold themselves out as experts but provide substandard services.
Consequently, it has long been the case that physicians, lawyers, and other professionals can be sued for malpractice if they provide services that fall below such standards and harm a patient or client. Roughly twenty thousand medical malpractice suits are filed in the US each year. Such suits are just one way to enforce a profession’s standard of care: state licensing boards also discipline professionals for malpractice. If Chiles is right that Colorado’s ban on conversion therapy violates the First Amendment by censoring her speech, then every sanction imposed on lawyers, doctors, or therapists for providing substandard care through their advice or counseling would be unconstitutional.
Yet Chiles is unable to cite a single case ruling that the First Amendment precludes requiring professionals to meet established standards merely because their services consist of words. There simply is no First Amendment right to commit malpractice.
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Conversion therapy is a widely condemned practice that seeks to change a patient’s sexual orientation or gender identity. For decades societal and religious objections led therapists to treat gay, lesbian, or transgender identity as a mental illness in need of “cure.” Among other things, they tried electroshock therapy, induced nausea and vomiting, and other “aversive” techniques designed, Clockwork Orange-style, to cause a patient to associate their sexual desires with negative consequences. They also attempted to convince patients to deny their sexual identity through talk therapy, in effect to reject who they are.
But the uniform consensus in the medical profession today recognizes that these identities are not pathological at all, but normal aspects of a person’s internal being that cannot be “changed” through therapy. The list of associations that reject conversion therapy as legitimate treatment includes all the major institutions in the relevant fields: the American College of Physicians, the American Medical Association, the American Academy of Pediatrics, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the American Psychological Association, the American Psychoanalytic Association, the American School Counselor Association, the National Association of Social Workers, the Pan American Health Organization, and the World Psychiatric Association. According to the uncontradicted testimony of the psychologist Judith Glassgold in the Colorado case, studies of the practice have found that promising to change a patient’s sexual orientation or gender identity can cause serious harm, especially in minors, including self-hatred, depression, anxiety, and suicidal impulses.
Chiles, represented by the conservative Christian legal organization Alliance Defending Freedom, maintains that prohibiting this substandard treatment is viewpoint-discriminatory censorship. Colorado allows therapists to tell patients that they can’t change their sexual identity, and to help them come to terms with that fact, but prohibits them from providing treatment that purports to change what cannot be changed. The state is therefore taking sides, she argues, which violates the First Amendment. (For her part, Chiles says, she “does not seek to ‘cure’ clients of same-sex attractions or to ‘change’ clients’ sexual orientation,” just “assist clients with their stated desires and objectives in counseling, which sometimes includes…seeking to reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with one’s physical body.” That assertion raises serious questions as to whether she even has the required standing to challenge the law, which bans only efforts designed to change sexual orientation or gender identity. But the conservative justices seemed eager to brush those concerns aside in order to rule in her favor.)
Chiles relies on cases holding that a state regulation is presumptively invalid when it prohibits speech based on the message it expresses. (Think, for instance, of a law banning pro-Palestinian protests.) Such a law can survive constitutional review only if the state satisfies “strict scrutiny” by demonstrating that its law is necessary to further a compelling state interest. If Colorado barred ordinary citizens from attempting to persuade people to change their sexual identity, its law would be subject to strict scrutiny, and would almost certainly be unconstitutional.
But Colorado’s law does not regulate ordinary citizens; it regulates only what licensed professionals do in providing services. Chiles herself is free to advocate for conversion therapy to her heart’s content outside the professional setting. She can even provide counseling to that end, as long as she does not purport to be acting as a counselor licensed by the state. And within the licensed therapy setting, she can explain that she disagrees with the state and condemn its law. She just can’t purport to provide treatment that is designed to change what cannot be changed—an individual’s sexual identity.
In providing state-licensed services, professionals are often forbidden from expressing certain views—namely those that are false, unfounded in science, or harmful. A doctor treating a lung cancer patient cannot recommend that her patient increase his smoking to three packs a day, although she can certainly recommend that he decrease or cease smoking. A lawyer advising a client about her right to abortion can’t advise her that she has a constitutional right to abortion, no matter how fervently the lawyer believes that; the professional standard of care requires her to express the opposite view, namely, that abortion is not constitutionally protected. A therapist treating a suicidal patient who advises her to constantly tell herself she is the scum of the earth and doesn’t deserve to live commits malpractice, though one who advises the opposite viewpoint, that she is a valued member of society and deserves to live, does not. These are all viewpoint-based restrictions on speech. Yet only a professional who expressed the approved view would be providing a service within the standard of care.
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During oral argument Justice Amy Coney Barrett asked Chiles’s lawyer, James Campbell, about the consequences of his argument for malpractice. “How,” she asked, “would this apply to a malpractice suit? Let’s say that we think that this is content discrimination and it triggers strict scrutiny. Would your client then be subject to a malpractice suit?”
Campbell rejected any analogy between such a suit and the conversion-therapy ban: “Colorado is using malpractice…as an analogue to what it’s doing here. But it’s nothing like the law that we’re challenging.” He maintained that, “as a general matter, the elements of a malpractice suit are sufficient to protect freedom of speech.” Those elements, he explained, require a showing that the treatment violated the standard of care and caused harm. Colorado’s law is different because it imposes a licensing requirement. In other words, his client could be held liable for malpractice for providing conversion therapy if it caused harm, but the state can’t condition its licensing on adherence to the same professional standards.
That’s wrong for two reasons. For one thing, the First Amendment is not automatically satisfied by the fact that, to hold a speaker liable, state tort law requires a showing that the speech caused harm. The Court has applied First Amendment standards to other personal injury suits. In Snyder v. Phelps, for example—a suit brought by the parents of a slain marine against the Westboro Baptist Church for intentional infliction of emotional distress after the group displayed homophobic placards outside their son’s military funeral—the Supreme Court held that because the speech was made in public on a matter of public concern, it was protected by the First Amendment, even if it caused harm. So, too, the Court has imposed First Amendment constraints on suits for defamation, again even though the tort of defamation requires proof that the speech caused harm. If the general elements of tort suits necessarily satisfied the First Amendment, the Court would have seen no need to subject these torts to First Amendment limitations. Yet no such limits have ever been proposed for malpractice suits merely because the substandard care consisted of words.
Second, from a speech perspective, there is no relevant difference between being held liable for malpractice for providing conversion therapy and being disciplined for doing so by one’s professional licensing association. In both instances the therapist is being held accountable for the views she expressed in a professional setting, and in both instances the state is enforcing professional standards that protect patients from fraud and abuse. The Justice Department official Hashim Mooppan, arguing in support of Chiles, said the Colorado law was different because it imposes a “categorical prior restraint” against conversion therapy, while a malpractice suit for the same therapy only imposes punishment after the fact. But the Colorado law also imposes punishment only after the fact. As in malpractice suits, no penalty is imposed unless a patient files a complaint and a hearing is held to determine the facts.
It makes no difference to the First Amendment, in other words, that one penalty is imposed by a state court and the other by a state licensing board. If anything the Colorado law is less problematic than a malpractice suit, since it provides clear notice of what the therapist cannot say, whereas one can be held liable for malpractice even if one did not have notice that the advice one provided was substandard. Either punishing the speech that constitutes conversion therapy is permissible or it is not.
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Several of the justices seemed skeptical of deferring to professional standards of care when they affect speech. Such standards change, after all. At one time, Justice Samuel Alito pointed out, the medical consensus, reflected in a Supreme Court opinion, was that “three generations of imbeciles are enough.” Justice Neil Gorsuch noted that the medical profession once identified homosexuality as a mental illness.
But the fact that standards change doesn’t mean that medical professionals have a First Amendment right to violate them before they have changed, any more than the fact that laws change means we have a First Amendment right to violate them before they do. If states are to be able to regulate the care provided by professions they license, they have to be able to enforce standards for that care, even if those standards may evolve over time.
None of this is to say that states can’t abuse their authority to regulate professions. If a state barred doctors from advising patients about the availability of birth control, for example, because the legislature opposed birth control, even though such advice would not violate the standard of medical care, the doctors would have a First Amendment claim. So, too, if a state that favored gun control barred lawyers from advising clients that they have a right to bear arms under the Second Amendment. But that’s because it contravenes no professional norm to inform individuals about the availability of birth control or handguns. Such restrictions would have nothing to do with enforcing a professional standard of care.
Much of the argument in the case has focused on what level of “scrutiny” the Court should apply to a law that regulates speech for the purpose of enforcing professional standards of care. In 2018 the Court rejected a general reduced First Amendment standard for “professional speech,” but the law in that case—requiring unlicensed anti-abortion pregnancy centers to post notices informing patients that they are not licensed medical facilities and licensed ones to note that the state helps pay for abortion, contraception, and other services—did not seek to enforce a standard of care. And in that same case the Court also said that some regulations of professional speech do not violate the First Amendment, including malpractice and informed consent requirements.
Chiles urges strict scrutiny here, a test that states rarely satisfy. Colorado’s law should satisfy even such demanding review, because it furthers a compelling interest in protecting patients and maintaining safe and effective care in the professions it licenses. But if the state has the right to enforce professional standards of care as a general matter, it makes little sense to use such a stringent test. Doing so in a context where the state should generally prevail would threaten to water down strict scrutiny, which is reserved for laws that are presumptively invalid.
There is certainly a risk that states might abuse their regulatory authority, but that risk would be addressed by applying what the Court has called “intermediate scrutiny,” a standard that applies where there are generally strong reasons to regulate but also some need to police potential abuse. Under that standard, the state must show that its regulation advances an important state interest in a reasonable way. That’s essentially the standard the Court applies to laws regulating advertising. When it comes to professional services, if the state adopts a rule that enforces a consensus standard of care whose violation would support malpractice liability, the rule directly advances an indisputably important state interest—namely, ensuring safe and effective care.
If there is substantial dispute within the professional community about a particular form of service, then providing that service will not violate the standard of care. In that circumstance, there would be no malpractice liability, and a state licensing law banning the service in question would not further the state’s interest. But there is simply no dispute in the profession with respect to conversion therapy for minors. Every relevant professional association has rejected it as ineffectual and harmful. Conversion therapy is, for all practical purposes, no more legitimate than selling snake oil to cure cancer—and licensed professionals have no more of a legal right to provide it.
English (US) · 