“Science” & the 1st Amendment Will Wrestle in the Supreme Court.
On March 10, 2025 the Supreme Court of the United States agreed to here an appeal from the 10th Circuit Court of Appeals in Chiles v. Salazar. This is yet another case involving statutory prohibitions against trans-gender care for minors enacted by a state assembly. Wedged in the middle of this debate is the continuing issue of whether, when and how parents can govern treatment of their children.
We use the word “treatment” in this context with some caution. Chiles is a case brought by a licensed Colorado “counselor” who provides talk therapy to adults and children who present with perceived struggles concerning their gender or sexual identity. The therapist in this case has no prescribing authority and has no license to do anything more than talk to patients. This is fairly standard as the right to intervene physically (e.g., surgery) or prescriptively (medication) is the province of psychiatrists and surgeons; people with medical degrees and licenses.
So, the plaintiff in this case is a licensed counselor who “talks” to patients who have gender related conflict. It appears uncontested that by reason of this license, she is regulated by Colorado’s Mental Health Practices Act because her “talk” is administered as “treatment.” This is different than “talk” about gender identity with a friend or a member of the clergy or (wince) a school counselor as we discussed in our post of last month (2/28/2025).
In 2019 Colorado amended its Mental Health Practices Act to prohibit all mental health professionals licensed, certified or registered as “counselors” from “engaging in conversion therapy” with a patient who has not yet attained age 18. Conversion therapy is defined to include “any practice or treatment” that purports to change sexual orientation or gender identity of the patient including efforts to reduce sexual attractions or romantic feelings toward persons of the same sex. Conversion therapy does not include practices that provide “acceptance, support and understanding of …an individual’s coping, social support and identity exploration….” It also exempts treatment intended to mitigate unlawful or unsafe sexual practices so long as that treatment does not seek to alter sexual and gender orientation.
It is little wonder that Kaley Chiles brought an action in federal court seeking to enjoin enforcement of this statute under 42 U.S.C. Section 1983. As you might expect, if you have a license to treat people under the Mental Health Practices Act and you misinterpret the word salad that is found in the last paragraph (Colo. Rev. Statute 12-245-202(3.5) to be precise), the penalties can be harsh including loss of license and a penalty of $5,000 per violation.
Embedded in this, albeit perhaps a distraction to the larger issues, is the fact that the plaintiff labels herself a Christian counselor. As such, part of what she indicates she deals with are the repercussions, both physical and emotional, for patients who are struggling to put their faith before their feelings in a world where those appear in conflict. Her request for injunctive relief seeks to clarify that she does not seek to cure patients with gender or sexual orientation issues but to help these patients cope with the feelings that occur when gender or orientation conflict.
The plaintiff moved for an injunction to restrain enforcement of the statute. She did not request a hearing. The trial court found she did have standing to bring this claim because she would be subject to the sanctions set forth in the new regulations. Meanwhile the court also found that she did not have standing to assert claims on behalf of the minor individuals (under 18) for whom the protections were enacted. That difference, discussed at footnote 11, seems odd.
The gravamen of the complaint is Ms. Chiles assertion that this statute interferes with her right to free speech under the 1st Amendment of the Constitution. Colorado officials asserted that based on her own factual allegations, the plaintiff does not engage in the proscribed conduct so there is no justiciable issue. The Court of Appeals notes that no licensee has been prosecuted thus far under this revised law. That’s a fair point but also leaves the proverbial “bunny in the hat” because the line between protected language and proscribed language is extremely thin. In most cases like this there is objective conduct; a prescription written or a medical procedure performed. But this is treatment via conversation.
What makes this unusual is that both the trial and circuit courts have decided there wasn’t really a case here. Meanwhile the United States Supreme Court has voted to take the case, probably because of the delicate difference between speech and treatment.
Note that this prohibition is one involving treatment of children. Here Pennsylvania has an interesting approach in a world where there is immense controversy over who decides how children are raised. You have parents who are open to their children’s interest in exploring issues of gender and sexual orientation. You have parents that are inalterably opposed to these “explorations.” And then you have the vast majority of parents who are bewildered that even young children are raising these issues. If the child is taken for mental health treatment the confidentiality of the treatment itself is an issue.
35 Pa. C.S. § 10101.2 provides for the confidentiality and disclosure of outpatient mental health records for a minor. When a minor consents to such care under 35 Pa. C.S. 10101.1, the minor controls release of the records and information. When a parent or guardian has consented to voluntary inpatient or outpatient mental health treatment of a minor, that parent or guardian shall have the right to information necessary for providing consent to the minor’s mental health treatment, including symptoms and conditions to be treated, medications and other treatments to be provided, risks and benefits and expected results. See Pennsylvania Department of Human Services, Office of Mental Health and Substance Abuse Services Bulletin, “Bulletin 23-01: Act 65 of 2020: Consent to Mental Health Treatment for Minors” (Jan. 24, 2023). See also 50 Pa. Stat. § 7111. Under Pennsylvania law a child age 14 and up has the right to secure mental health care without parental consent and if the child does so, he/she controls release of the records.
In the past, physical limitations made some of this discussion academic. Children can’t drive until they are age 16 and most kids don’t live within walking distance of a therapist. Then there was the matter of who paid for the therapy. Today, we live in an age when therapy is available on-line and the typical on-line session is paid with a credit card. And, as we noted in our December 14, 2024 blog, there seem to be adults out there (e.g., grandparents, creepy adults (see Com. v. Person)) who will pay for services that a child wants whether the parent knows, agrees or not.
This is certainly a hot issue based on the number of parties who have sought a role in the Circuit and Supreme Court litigation. We have not seen any data on talk therapy on this topic but a report from the insurance industry indicated that from 2019 through 2023 an average of 175 children in Pennsylvania each year are treated with medications and/or surgery related to gender issues. Two-thirds of those received puberty blocking medications and the other one-third had some form of surgery. Pennsylvania has about 2.6 million kids.
It’s a fascinating issue legally if not significant statistically. Here’s the current ruling:
https://law.justia.com/cases/federal/appellate-courts/ca10/22-1445/22-1445-2024-09-12.html