Chiles v. Salazar

WASHINGTON – Doctors, Christian counselors, families who have benefited from counseling that acknowledges biological sex as reality, and 12 states have filed friend-of-the-court briefs with the U.S. Supreme Court in Chiles v. Salazar—15 briefs in all. The groups are imploring the court to take the case, in which Alliance Defending Freedom attorneys represent a licensed professional counselor in Colorado who helps clients talk about various issues, including gender identity and sexual orientation.

Kaley Chiles is challenging a Colorado law that violates her freedom of speech by censoring and prohibiting private client-counselor conversations regarding sexual orientation and gender identity that the government disfavors. That same law allows—even encourages—conversations the government favors. In September, the U.S. Court of Appeals for the 10th Circuit upheld Colorado’s law, reasoning that talk that takes place during a counseling session is not “speech” but is instead “conduct” that the First Amendment does not protect—prompting ADF attorneys to file a petition with the nation’s high court in November.

“The government has no business censoring private conversations between clients and counselors, nor should a counselor be used as a tool to impose the government’s biased views on her clients,” said ADF Legal Counsel Cody Barnett. “As Justice Clarence Thomas wrote in a similar case, even though these types of laws are ‘viewpoint-based … discrimination in its purest form,’ the federal appeals courts are currently divided 2–2 over whether they are valid. We are urging the Supreme Court to hear Kaley’s case, resolve the split, and stop Colorado officials from banning someone’s speech simply because they disagree with her beliefs. These parties filing on behalf of Kaley affirm that all Americans should be allowed to speak freely and seek the best possible help they desire.”

Colorado’s law violates Chiles’ freedom of speech by prohibiting licensed counselors from having any conversation with clients under age 18 that “attempts or purports 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 attractions or feelings toward individuals of the same sex.”

Significantly, the law only prohibits counseling in one direction. For example, it allows counseling conversations that aim to steer young people toward a gender identity different than the client’s sex but prohibits conversations that aim to help that same person return to comfort with his or her sex when they desire that. The law threatens fines of up to $5,000 per violation, suspension from practice, and even revocation of the counselor’s license.

“Free speech should protect the medical field from political pressure seeking to stifle scientific advancements,” the multi-state brief led by Iowa explains. “And it is far from clear that the ideological partisan bent embodied in Colorado’s law is ‘settled’ in any meaningful sense.”

“The Colorado government’s plan to displace any idea about counseling people with same-sex attraction and gender incongruence that doesn’t conform to its own narrow vision is gravely harmful, for reasons linked to the values the marketplace of ideas protects,” adds the brief filed by CHANGED Movement, a community of Christians individuals who once identified as LGBT. “People who want to get off the one-way train from gender-affirming counseling, to hormone therapy, to surgery lose access to good ideas that avoid real harms.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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