By Paul Engel
November 23, 2025
- Who decides what’s best for your children, you or the government?
- Should someone be allowed to pursue the treatment they desire, even if it’s politically incorrect?
- If government wants to ban a procedure, shouldn’t they at least prove it is harmful first?
Who decides what treatment is best for your child? Most people expect the government to protect children from dangerous treatments, even if their parents want it. But shouldn’t the government need to prove harm beyond a reasonable doubt before criminalizing treatment? Sadly, that is not the question before the court in the case Chiles v. Salazar. Rather, it’s a twisted attempt to use the First Amendment to strike down this Colorado law.
Arguments
Let’s start with the arguments. First up, James Campbell for Ms. Chiles.
James A. Campbell for Petitioner
- CAMPBELL: Thank you, Mr. Chief Justice, and may it please the Court:
Colorado forbids counselors like Kaley Chiles from helping minors pursue state-disfavored goals on issues of gender and sexuality. This law prophylactically bans voluntary conversations, censoring widely held views on debated moral, religious, and scientific questions. Aside from this law and recent ones like it, Colorado hasn’t identified any similar viewpoint-based bans on counseling.
Chiles v. Salazar – Oral Arguments
Mr. Campbell gets right to his point. Colorado has criminalized minors from seeking their goals on issues of gender and sexuality, he alleges, because those goals are “state-disfavored” or not politically correct.
These laws are historic outliers. In NIFLA, this Court protected professional speech, highlighting the dangers of censoring private conversations between professionals and their clients, and this Court rejected by name two lower court decisions upholding laws like Colorado’s. But the Tenth Circuit gutted NIFLA’s speech protection.
Chiles v. Salazar – Oral Arguments
NIFLA refers to the Supreme Court case NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES, DBA NIFLA, ET AL. v. BECERRA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. The case involved the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which required that certain notices be posted in clinics that serve pregnant women, including the fact that California provided free or low-cost services, including abortion. The court held that “The licensed notice likely violates the First Amendment.”
Colorado insists that its law is subject only to rational basis review, yet that would allow states to silence all kinds of speech in the counseling room, such as disfavored views on divorce or abortion. If heightened scrutiny doesn’t apply, states can transform counselors into mouthpieces for the government.
Chiles v. Salazar – Oral Arguments
Mr. Campbell argues that, since the Colorado law impacts a freedom protected by the First Amendment, strict scrutiny should apply, while Colorado believes only rational basis review is required. This argument falls back on the courts interpretation of “judicial review,” setting a standard of how hard a government must work to infringe on your rights protected by the Constitution.
Here, Colorado can’t satisfy any level of heightened scrutiny. It didn’t seriously consider any less restrictive alternatives. And Colorado can’t prove harm because it hasn’t cited a study focusing on what’s at issue here: voluntary speech between a licensed professional and a minor. Nor can Colorado deny that many people have experienced life-changing benefits from the kind of counseling that Ms. Chiles wants to provide.
Chiles v. Salazar – Oral Arguments
Remember, this question of Colorado proving harm as it will become very important later.
The First Amendment doesn’t permit Colorado’s censorship.
I welcome the Court’s questions.
Chiles v. Salazar – Oral Arguments
Mr. Campbell hangs his argument on the Colorado law violating the First Amendment’s Free Speech clause. Except the First Amendment says no such thing.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Constitution – Amendment I
You see the First Amendment prohibits Congress from making laws that abridge the freedom of speech, not the states. That’s not to say this Colorado law doesn’t violate the Constitution of the United States, just not the First Amendment. We’ll get into the real violations later.
Hashim M. Mooppan Amicus for United States
Next come Hashim Mooppan, Amicus (friend of the court) for the United States.
- MOOPPAN: Mr. Chief Justice, and may it please the Court:
Colorado’s law is subject to strict scrutiny under the First Amendment for three straightforward reasons. First, the law restricts speech based on content and viewpoint. It prohibits Petitioner from counseling minor clients to help change certain feelings and behaviors. It is thus subject to strict scrutiny, unless an exception applies.
Second, the law falls outside the exception for regulations of conduct that only incidentally burden speech. There’s no separate non-speech conduct being regulated here. And professional medical treatment is not exempt from the ordinary First Amendment rule that strict scrutiny applies even to laws that generally regulate conduct where those laws are triggered by the communicative content of speech.
Third, the law falls outside any historically grounded exception. There is no longstanding tradition of states imposing this type of categorical prior restraint on the speech of therapists.
I welcome this Court’s questions.
Chiles v. Salazar – Oral Arguments
The exception, as I’ve already pointed out, is that this law cannot violate the First Amendment because Congress did not make the law.
Shannon W. Stevenson for Respondent
Lastly we have Shannon Stevenson arguing for the State of Colorado.
- STEVENSON: Mr. Chief Justice, and may it please the Court:
Throughout its history, this Court has recognized that state power is at its apex when it regulates to ensure safety in the healthcare professions. Colorado’s law lies at the bull’s-eye center of this protection because it prohibits licensed professionals from performing one specific treatment because that treatment does not work and carries great risk of harm.
Chiles v. Salazar – Oral Arguments
Ms. Stevenson has a point. The power to regulate healthcare professionals lies with the states and not the federal government. However, for her argument to be valid, she will have to show the this treatment includes the risk of actual harm.
No court has ever held that a law like this implicates the First Amendment and for good reason.
Chiles v. Salazar – Oral Arguments
I don’t know whether courts have upheld this or not, but I’ve already shown that this law cannot implicate the First Amendment, only not for the reasons Ms. Stevenson will use in her argument.
First, the law applies only to treatments, that is, only when a licensed professional is delivering clinical care to an individual patient. In that setting, providers have a duty to act in their patients’ best interest and according to their professional standards. The First Amendment affords no exception.
Chiles v. Salazar – Oral Arguments
Who decides what is in a patient’s best interest? Does the state, with all of the political baggage that comes along with it, really believe their view of what is best supersedes everyone else’s? Apparently so.
Second, because this law governs only treatments, it does not interfere with any First Amendment interest. It does not stop a professional from expressing any viewpoint about that treatment to their patient or to anyone else.
And because Colorado’s law regulates treatments only and because it enforces the professional standard of care, the law falls squarely into the reasonable regulation of professional conduct that does not trigger First Amendment scrutiny.
Chiles v. Salazar – Oral Arguments
We will encounter this phrase “standard of care” a lot in this case. What is “standard of care”?
The standard of care is a legal term, not a medical term. Basically, it refers to the degree of care a prudent and reasonable person would exercise under the circumstances. State legislatures, administrative agencies, and courts define the legal degree of care required, so the exact legal standard varies by state.
The Standard of Care – NIH National Library of Medicine
So the phrase “standard of care” is not a medical term, but a legal one, a term established by state government. Which means Ms. Stevenson’s argument boils down to the Colorado law is meant to enforce the standard of care by establishing it as the standard of care. Circular logic, anyone?
Petitioner’s argument, on the other hand, cannot be reconciled with history, precedent, or common sense. A state cannot lose its power to regulate the very professional that it licenses just because they are using words.
Chiles v. Salazar – Oral Arguments
Ms. Stevenson is right. However, the Constitution of the United States does put limitations on a state’s power to regulate professionals, just not in the First Amendment.
A healthcare provider cannot be free to violate the standard of care just because they are using words. And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words.
Chiles v. Salazar – Oral Arguments
Ms. Stevenson seems to imply that the standard of care is a medical standard, but as I’ve shown, it’s not. This is the state prohibiting treatment that it believes is ineffective and harmful without showing real proof.
Petitioner asks you to enjoin a bipartisan law passed by 25 different states, but she did not put one single piece of evidence into the record, not a single expert, not a single study, not a single mental health professional willing to endorse conversion therapy, and there is a mountain of evidence to the contrary.
Chiles v. Salazar – Oral Arguments
So Colorado wants the Supreme Court to to deny the preliminary injunction against the law. Why am I reminded of something most mothers have said? “If all of your friends jumped off a bridge, would you follow them?” Because Ms. Stevenson seems to imply that Colorado should be able to enforce this law because other states have similar laws. Does that mean those laws are legal?
On this record, we request that you affirm the denial of preliminary injunction. I welcome your questions.
Chiles v. Salazar – Oral Arguments
Viewpoint Discrimination
I think now would be a good time to look at the details of these arguments under the scrutiny of the questioning of the justices.
In his questing, Justice Thomas brought out an interesting point.
JUSTICE THOMAS: In its introduction of its brief, Colorado says that the only thing that the law prohibits therapists from doing is performing a treatment that seeks the predetermined outcome of changing a minor’s sexual orientation or gender identity because the treatment is unsafe and ineffective.
Chiles v. Salazar – Oral Arguments
Colorado claims their law prohibits treatments that seek a predetermined outcome, but only if that outcome is to change a minor’s sexual orientation or gender identity. They claim that talk therapy is only dangerous if it tries to effect such a change, regardless of whether that is the desire of the individual or not. While there was some wiggling by Ms. Stevenson, I think Justice Alito got to the point.
So, in the first situation, an adolescent male comes to a licensed therapist and says he’s attracted to other males, but he feels uneasy and guilty with those feelings, he wants to end or lessen them, and he asks for the therapist’s help in doing so.
The other situation is a similar adolescent male comes to a licensed therapist, says he’s attracted to other males, feels uneasy and guilty about those feelings, and he wants the therapist’s help so he will feel comfortable as a gay young man.
It seems to me you’re interpret — your statute dictates opposite results in those two situations based on the view — based on the viewpoint expressed. One viewpoint is the viewpoint that a minor should be able to obtain talk therapy to overcome same-sex attraction if that’s what he — or he or she wants. And the other is the viewpoint that the minor should not be able to obtain talk therapy to overcome same-sex attraction even if that is what he or she wants.
Looks like blatant viewpoint discrimination.
Chiles v. Salazar – Oral Arguments
I agree, that does sound like blatant viewpoint discrimination. The same person, going to the same therapist is allowed different treatment based on the outcome the person desires. This is where Ms. Stevenson tries to wiggle around the facts a bit.
- STEVENSON: As I heard your examples, I think they would both be permissible because it didn’t sound like in either case the goal was to actually change sexual orientation. And — and, again, that’s the touchstone because that’s where the harms come from.
Chiles v. Salazar – Oral Arguments
Wait. Isn’t wanting to end or minimize same-sex attraction an attempt to change sexual orientation? What if someone is heterosexual, but has unwanted same-sex feelings? Wouldn’t encouraging them to “feel comfortable as a gay young man” be changing their orientation? Mr. Campbell reinforced this point in his rebuttal.
This law’s viewpoint discrimination is even worse than we’ve heard so far this morning because the State of Colorado would allow a 12-year-old without their parents’ consent to enter into counseling that would go the opposite way on these issues of gender identity and sexual orientation. But, if that same 12-year-old with their parents’ consent want to seek counseling in the opposite direction, the kind that my client would provide, they are not able to do that. That kind of viewpoint discrimination must survive strict scrutiny.
Chiles v. Salazar – Oral Arguments
Then Alito opens an interesting door regarding standard of care.
JUSTICE ALITO: Your argument depends very heavily on the standard of care, which I take it is defined by the medical — by a medical consensus, is that correct?
- STEVENSON: That’s correct.
Chiles v. Salazar – Oral Arguments
Except, as I’ve already shown, “standard of care” is not a medical term but a legal one. It’s determined by legislatures and agencies, not doctors. And history has shown that the term “medical consensus” is often used when no consensus exists.
JUSTICE ALITO: Have there been occasions — I mean, the medical consensus is usually very reasonable and it’s very important. But have there been times when the medical consensus has been politicized, has been taken over by ideology?
- STEVENSON: We have no facts about that in this case, but I — I wouldn’t disagree —
JUSTICE ALITO: Well —
- STEVENSON: — that that’s possible.
Chiles v. Salazar – Oral Arguments
Yeah, that’s possible. Recent history has shown that this alleged “medical consensus” has not only been politicized, but is absolutely wrong. The medical consensus was that the COVID-19 vaccines were “safe and effective,” but actual medical research has brought into question their safety, seeing how many prominent people who were fully vaccinated yet got COVID proves it was not effective. So we not only have viewpoint discrimination, but the false statement that it’s based on the standard of care being medical consensus, when in reality it’s a legal term used by political bodies.
The Standing Standing Problem
One of the questions that came up during oral arguments is Ms. Chiles standing to bring the suit. Justice Sotomayor brought this up during her questioning of Mr. Campbell.
If they disavow enforcement of that kind of talk therapy, do you have standing in this case?
Chiles v. Salazar – Oral Arguments
One of the claims from Ms. Stevenson was that, if all the therapist did was talk to her subject, then the state would not enforce this law. She is an attorney, isn’t she? Even if the state promises to not enforce certain parts of the law, that does not make the law valid. After all, if the law says one thing, can we really trust any state actor that someone won’t one day enforce it? Because Mr. Campbell showed the lie in the “disavow” statement.
- CAMPBELL: We still have standing in this case.
Over the last few weeks, there have been anonymous complaints filed against my client, and those complaints are now being investigated by the State of Colorado for allegations that she’s violating the very law that we’re challenging.
So we had a credible threat of enforcement before. Because there’s no disavowal, anyone can file a complaint at any time, which this Court recognized bolsters a credible threat of enforcement in SBA List. But now that the state is actively investigating our client for supposedly violating this law —
Chiles v. Salazar – Oral Arguments
So apparently Colorado has not disavowed the law. And even if they did, would that really redress the grievance Ms. Chiles has?
The Skrmetti Problem
One of the legal questions many court watchers were talking about was the relationship between this case and the Skrmetti case the court decided last session. Justice Jackson brought that up while questioning the United State’s attorney, Mr. Mooppan.
JUSTICE JACKSON: So can I ask you just one final question just sort of from a very broad perspective? I’m wondering why this regulation at issue here isn’t really just the functional equivalent of Skrmetti. I mean, I realize that — that there were two different constitutional provisions at issue, but the regulations work in basically the same way and the question of scrutiny applies in both contexts. So it just seems odd to me that we might have a different result here.
Chiles v. Salazar – Oral Arguments
Justice Jackson brings up a good point. How is this case different than Skrmetti? Because in the Skrmetti case the court found that the state had the power to regulate medical treatment.
- MOOPPAN: Well, Skrmetti was a law that regulated on the basis of age and medical treatment.
Chiles v. Salazar – Oral Arguments
Not a very good start for Mr. Mooppan’s defense here, because this law also regulates based on age and medical treatment, even if it’s psychological treatment.
JUSTICE JACKSON: No, but here’s what I mean, right? In Skrmetti, we had a state that wanted to prohibit certain medical treatment, gender-affirming care, being given to minors in the form of medication. And we said that was okay. And I understand there are particulars with respect to how the — the arguments, the constitutional arguments, worked, but the state can prohibit that.
Here, we have a state that wants to prohibit gender-related medical treatment in the form of talk therapy, but we now have the First Amendment that is inhibiting the state’s ability to do that.
And I’m just, from a very, very broad perspective, concerned about making sure that we have equivalence with respect to these things.
Chiles v. Salazar – Oral Arguments
I think this is why the case so far has focused on speech rather than treatment. Since I’ve already shown that this law cannot violate the First Amendment, it looks like Ms. Chiles’ case should go down in flames, but there’s more to this.
Due Process
I think the fundamental flaw in this case is the reliance on the First Amendment and freedom of speech. While the First Amendment doesn’t apply because Congress did not make this law, the Constitution of Colorado sure thinks so.
No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty;
Colo. Const. Art. II, Section 10
Again, I think the free speech argument has a fundamental flaw, one that was exposed under Skrmetti. The state is attempting to regulate treatment, not merely speech. But as I mentioned, just because the First Amendment and free speech aren’t the issues, that doesn’t mean that there isn’t a constitutional violate in Colorado’s law. Specifically: Due Process.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV
You see, Colorado has passed a law that not only deprives Ms. Chiles of the liberty to practice her trade, but deprives her clients of a desired treatment. Now, this would be allowable, if Colorado had followed Due Process.
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
Due Process – The Free Legal Dictionary
In this case, that would mean showing the treatment banned by the law was actually harmful. And remember, the state has the burden of proof, not the individual, as Mr. Campbell pointed out under Justice Jackson’s questioning.
Their — their expert materials also recognize that they cannot prove harm. We’ve catalogued all the places in their expert materials on page 22 of our reply brief where they concede that.
And, lastly, their own expert materials recognize that many people have experienced life-changing benefits from this kind of counseling.
Again, the APA’s own report talks about how this helps people because they’re able to align their life with their religion. They’re able to find deeper relationships with God. They’re enabled — they’re able to find —
JUSTICE JACKSON: Doesn’t Colorado have some evidence that conversion therapy more broadly is harmful?
- CAMPBELL: It — it —
JUSTICE JACKSON: I mean, I think there are, like, 25 states or something who have similar laws, so someone has some evidence related to the harmfulness of this activity, right?
- CAMPBELL: Colorado certainly cites studies, but those studies suffer from significant flaws. The main flaw in all of them is that they lump together dissimilar approaches. They treat voluntary conversations the same as shock therapy.
Chiles v. Salazar – Oral Arguments
This topic was also brought up by Justice Sotomayor in her questioning of Mr. Mooppan.
[T]he thing that grants — that gives me pause in not applying strict scrutiny or in applying it is that none of the studies say that talk therapy is harmful. Is that correct?
Chiles v. Salazar – Oral Arguments
Justice Barrett gave Ms. Stevenson the opportunity to answer that question.
JUSTICE BARRETT: What is your best evidence on this record, thinking about the application of strict scrutiny, that this kind of talk therapy by a licensed professional, licensed therapist, to minors causes harm?
- STEVENSON: Sure. I would direct you, Your Honor, to JA 64 through 74. And I do want to note this particular argument about this specific study came up at — for the first time at Tenth Circuit oral argument, and I think had we had an opportunity, we could absolutely have put in even more evidence to nail this down in the district court.
But, if you look there, our expert walks through all of the research that’s been done since 2009. Aversive practices have not been in use since the 1980s or before, so all of these studies do not concern aversive practices at all.
And then I would direct you specifically to the Green study and the Turban study. The Green study looked at 34,000 13- to 25-year-olds who had gone through conversion therapy and, after controlling for other factors, found there was a two times rate of attempted suicides among that group.
And in the Turban study, Dr. Turban looked at 27,000 participants. This was specifically on gender identity change efforts, including people who had received those efforts under the age of 10. He looked specifically at childhood exposure and found association with adverse mental health outcomes in adulthood, including suicide ideation and attempts.
Chiles v. Salazar – Oral Arguments
That all sounds pretty good, until we look at Mr. Mooppan’s response to Justice Sotomayor.
- MOOPPAN: For — for this type — for talk therapy by a licensed therapist to minors. They don’t have any studies that say that that is either harmful or ineffective. And, indeed, they often concede that they don’t have that.
The 2009 APA report expressly acknowledges at pages JA 221 and 256, expressly acknowledges that they don’t have evidence of that. And if you look at the Glassgold declaration, which is after 2009, she too doesn’t cite anything.
If you look at the studies that she cites in her declaration, all of them are conflating either aversive and non-aversive or licensed and non-licensed or minors or adults. They just don’t have anything.
Chiles v. Salazar – Oral Arguments
Except, according to Mr. Campbell in his rebuttal:
On the issue of studies, there was a reference to the Green and Turban studies. All of those studies relied on biased sampling, self-reporting. They conflated aversive techniques with voluntary counseling. They did not isolate licensed counselors. And they did not purport even in their own study to prove causation.
Chiles v. Salazar – Oral Arguments
So is it the quantity of studies or the quality of those studies that provides proof of harm? As Justice Barrett reminded Ms. Stevenson, she has the burden of proof, not Ms. Chiles.
JUSTICE BARRETT: But you — you bore the burden. She didn’t have to show that it was efficacious, right? You had to show that it was — you had to show that it caused harm.
- STEVENSON: Right. But, in — in light of a hundred years of studies that all point in the same direction, with no efficaciousness and evidence of significant risk of harm, we think we amply carried that burden.
Chiles v. Salazar – Oral Arguments
So not only did Ms. Stevenson completely ignore the arguments by both Mr. Campbell and Mr. Mooppan about the quality of the studies, she also ignored the harm caused by the law, as Mr. Campbell noted.
But one of the things that’s so problematic about Colorado’s law is that it undermines the well-being of kids that are struggling with gender dysphoria. And so Colorado accepts that up to 90 percent of kids who struggle with that before puberty will work their way through it and realign their identity with their sex. But this law says that if any of those children go to a licensed professional and say: I would like help realigning my identity with my sex, that licensed professional has to decline to help them.
Chiles v. Salazar – Oral Arguments
If 90% of the children who struggle with gender dysphoria work through it and realign their identity with their sex, isn’t preventing them from seeking help to do so harmful? Thereby they are denying these children their liberty to seek treatment not because it is harmful or ineffective, but because it does not align with the political views of the state.
Conclusion
As bad as the case brought for Ms. Chiles was, Mr. Campbell does get to the point during his rebuttal.
This law harms gender-dysphoric kids because the statistics that we’ve cited in our verified complaint, as well as in the brief that we cited with this Court, indicate that 90 percent of young people who are struggling with gender dysphoria before puberty work their way through it and realign their identity with their sex, but if one of those children go to a counselor and they specifically say that is the help I want, realigning my identity with their sex, they cannot receive that help from someone like my client.
Chiles v. Salazar – Oral Arguments
Rather than protecting children from harm, this law prevents minors from getting the treatment that 90% of them need. The evidence that “conversion therapy” is harmful is questionable at best and medical malpractice at worst.
I wonder what would have happened if Ms. Chiles’ legal team had studied the Constitution rather than constitutional law? Perhaps not only would they have brought a sounder argument, but they also would not have tripped over the Skrmetti case.
© 2025 Paul Engel – All Rights Reserved
E-Mail Paul Engel: paul@constitutionstudy.com