Opinion: Colorado’s law dictating transgender care violates free speech

A million dollars may be a drop in the Colorado budget bucket but it isn’t chump change. Classrooms, water projects, roads, and hospitals could use it. With a $900 million shortfall projected for 2025, the state cannot afford to waste even a dime on unnecessary litigation costs, especially over a case it will likely lose.

Colorado just agreed last month to cover Lorie Smith’s legal costs in the 2023 303 Creative LLC v Elenis case. That $1.5 million bill does not include the time and money the state spent on its own side defending the law in question that violated Smith’s free speech. The government can avoid incurring similar costs by repealing another law that abridges free speech before taxpayers have to pony up again.

That law, enacted in 2019, censors free speech between a mental health professional and his or her clients. The law dictates that a therapist affirm a girl or boy’s desire to transition to the opposite sex. The counselor cannot legally engage in conversation that will help the teen accept his or her body and biological gender identity. If she does, the therapist could be fined $5,000 per conversation or could even lose her license.

Lawmakers who passed the bill, most of whom have no experience in the mental health field, believe that gender confusion must be confirmed rather than challenged. For many mental health professionals, this is tantamount to treating anorexia by telling a patient she is right, she is too thin.

Because of the law, these mental health professionals face a choice no one in a free society ever should: they can do right by their patients and lose their license, speak only as the government demands against their professional judgement, or refuse to take clients with gender dysphoria who have come to them for help.

For this reason, one such Colorado licensed counseling professional, Kaley Chiles, recently petitioned the US Supreme Court to protect her free speech and that of her patients. Several viewpoint discrimination cases over similar laws have made their way to appeals courts. Half of the court decisions have been in the counselors’ favor and half on behalf of the laws.

In light of the 303 Creative decision and the division among the circuit courts, Chiles is likely to prevail in her petition. 303 Creative affirmed the right to free speech and the right to viewpoints “no matter how controversial.” The court stated that “a commitment to speech for only some messages and some persons is no commitment at all.”

The government can neither censor with which it disagrees nor compel speech with which it agrees. Colorado’s counseling law does both.

Gender identity is a contentious subject. Everyone cares about struggling teens but disagrees on how they can best be helped. Some people believe it is best to affirm the alternate identity through counseling and medical interventions; others contend the best choice is to help teens accept their bodies and gender identity. The debate over best practices shows no sign of abating. But the government cannot intervene and silence those with whom a bare majority of lawmakers disagree.

Exit polling from the last election showed that many voters do not believe that human beings can change their sex or gender and they resent being shamed or silenced over their concerns about bathrooms, team sports, and treatment of teens with gender dysphoria. Democrats continue to push an aggressive trans agenda at its own political peril.

Ideally, Colorado lawmakers would support free speech for its own sake and repeal the 2019 law as the legislature convenes. At the very least they should act in their best interest to save money and their political future.

Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer.

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