Supreme Court to Decide if Counselors Can Advise Minors Against ‘Gender Transition’

When Erin Brewer was 6 years old, she and her older brother were accosted by two grown men. She was raped. Her brother was not.  

Brewer called herself a boy for the next several years because, she said, she felt vulnerable as a girl. She wore her brother’s hand-me-downs, used the boys bathroom at school, and asked her friends to call her “Timothy.” At home, her mother told her she could pretend to be a boy. Only when her school counselor stepped in did she start to feel strong as a girl and accept her body. 

“She did her best to help me accept myself as a girl, and I am so thankful that I lived in a time when that was the normal way that a transgender identity was treated,” the 58-year-old mother of three told The Daily Signal.  

A current case before the U.S. Supreme Court could decide whether counselors like the one who helped Brewer can do the same for others and advise minors in therapy against “transitioning” genders.  

The court granted review Monday for Chiles v. Salazar, a case in which Kaley Chiles, a licensed professional counselor in Colorado, sued Patty Salazar in her official capacity as executive director of the Colorado Department of Regulatory Agencies. Chiles said she wants to help her clients talk through problems like gender identity without being forced to promote transgender ideology.  

Colorado law prevents counselors from advising their young clients against gender transition by banning what it calls “conversion therapy” for minors. The law defines conversion therapy as any practice or treatment that attempts to “change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction … toward individuals of the same sex.” The same law, however, protects “assistance to a person undergoing gender transition.” 

Chiles challenged the constitutionality of the law in federal court, saying it violated her First Amendment right to free speech. After the U.S. Court of Appeals for the 10th Circuit upheld Colorado’s law, attorneys from Alliance Defending Freedom, a Christian law firm, filed a petition with the Supreme Court in November.  

“What’s at stake here are the free speech rights of counselors,” Cody Barnett, legal counsel for Alliance Defending Freedom, told The Daily Signal. “They want to be able to offer the counseling that many parents and children across the country desperately need and want. But that’s the exact type of counseling that Colorado says is illegal, and instead, Colorado says the only counseling that can be offered is one that … aligns with Colorado’s view of gender and sexuality and forces counselors to parrot that for the state.”  

Barnett noted that the state law applies in only one direction. 

“What could happen here is that you have someone who is born a boy, decides they want to transition into being a girl, and then they regret that choice,” Barnett said. “This law forbids a counselor from helping them go back to getting comfortable with their natural body.” 

Court documents from the lawyers for the state argue that so-called conversion therapy harms minors and that professional health care is fundamentally different from an average person’s speech under the First Amendment. 

“Unlike laypersons, those who choose to practice as health professionals are required … to provide treatment to their patients consistent with their field’s standard of care,” the brief said. “Petitioner’s claim would undercut states’ long-standing ability to protect patients and clients from harmful professional conduct.” 

According to Barnett, the conversion therapy tactics referenced by the state in this case do not reflect Chiles’ work as a therapist. The therapy Chiles offers is speech protected under the First Amendment, Barnett said, not conduct. Judge Harris Hartz of the 10th Circuit affirmed this assessment in his dissenting opinion in the court’s ruling. 

“[T]he First Amendment never cares whether ‘professionals [are] speaking,’” Hartz said in his dissent. “Otherwise, government bureaucrats could alchemize almost any professional’s speech into conduct that can be silenced.” 

The Colorado Department of Regulatory Agencies declined The Daily Signal’s request for comment and cited the ongoing litigation. 

More than 20 other states have similar laws prohibiting so-called conversion therapy. A favorable decision for Chiles could remove such restrictions on counselors across the nation who want to help children like Brewer. 

Brewer said she supports Alliance Defending Freedom’s effort to protect the work of counselors like the one who helped her growing up. 

“I often wish I could get in touch with her,” Brewer said of her school counselor. “She may not even be alive anymore. I wish there was some way to tell her how much I appreciate what she did.” 

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