There was little doubt as to how this Supreme Court would decide Chiles vs. Salazara lawsuit challenging a Colorado law barring licensed therapists from providing “transgender therapy,” or counseling that aims to change LGBTQ+ patients to straight and asexual people. This court, which has a 6-3 Republican majority. they usually rule in favor of religious conservatives when their interests conflict with those of queer people, even when religious conservatives raise aggressive legal arguments.
In Chilesmoreover, the plaintiffs’ arguments were very strong. Plaintiff in Chiles is a specialist who wants to provide conversion therapy to patients who expect it”reduce or eliminate unwanted sexual attractionschanging sexual habits, or growing in the experience of being in tune with (their) bodies.” He says he does not physically abuse LGBTQ+ patients or prescribe any medication; he only engages in talk therapy with them. And it doesn’t take a law degree to see how the law governing the treatment of speech implicates the First Amendment’s free speech protections.
And so, the Court’s vote Chiles was dissented, with Democratic Justices Sonia Sotomayor and Elena Kagan joining the majority opinion. Only Justice Ketanji Brown Jackson dissented.
Despite this overturned vote, Chiles raised difficult questions under the First Amendment. While the constitutional right to freedom of expression is broad and usually used for offensive or even harmful speechthe law has historically imposed several restrictions what kinds of things can licensed professionals say to their patients or clients. A lawyer who tells a client that it is legal to rob a bank risks a malpractice suit or worse. A doctor who tells a patient that they can cure their flu by taking arsenic risks being tried for murder.
So, Justice Neil Gorsuch, who wrote the majority opinion, had to craft a law that overturns Colorado’s ban on conversion therapy — at least as it applies to therapists who don’t touch their patients or engage in anything other than talk therapy — while also making sure that incompetent doctors and incompetent lawyers aren’t put above the law.
His opinion suggests that, at least in some cases, a client or patient who receives very bad legal or medical advice must wait until they suffer the consequences of taking that advice before suing the professional who gave them the bad advice for malpractice. That rule can lead to unfortunate, or even dire, consequences in some unusual cases. Conversion therapy is rejected by every major health and mental health organization, because, in the words of the American Psychological Association, “puts individuals at greater risk of harm.” After Chilessome patients may have no legal recourse against scammers until they become involved in self-harm – or worse.
But Chiles you also likely won’t turn the practice of law or medicine into the Wild West. There are still some safeguards against bad medical practices. And the possibility of a bad suit can prevent some experts from using unacceptable methods.
The First Amendment abhors laws that discriminate on the basis of opinion
The thrust of Gorsuch’s opinion is that Colorado’s law is unconstitutional, because it engages in “opinion discrimination,” and laws that do so are almost always prohibited by the Constitution.
As Gorsuch writes, the law they treat doctors differently based on the opinions they give about the client’s sexuality or gender. “Regarding sexual orientation,” for example, Colorado allows a therapist to “affirm a client’s sexual orientation, but prohibits him or her from speaking in any way that helps the client ‘change’ his or her sexual attraction or behavior.”
Opinion discrimination is about the worst thing a state legislature can do if it wants a law to withstand a First Amendment challenge, which explains why two out of three of the Court’s Democrats joined Gorsuch’s opinion. In a separate compromise, Kagan explains why she and Sotomayor voted against the Colorado law, and her opinion relies heavily on strong anti-discrimination laws.
Such laws, Kagan writes, are a “‘bad form’ of content-based censorship,” in part because they suggest that the government had an “impermissible motive” when it wrote the law — “to regulate speech because of its ‘hostility’ to targeted messages.” For that reason, Kagan writes, laws dealing with discrimination of any kind “are the most suspect of all speech laws.”
That being the case, the Constitution has historically allowed the government to discriminate against lawyers who express the opinion that their client should kill his wife or against doctors who express the opinion that cyanide is the best cure for the common cold. While Gorsuch’s opinion includes the detailed statement that First Amendment protections “extend to licensed professionals as they do to everyone else,” he also outlines some circumstances when the government can regulate professional speech.
The government can require professionals to “disclose only truthful, uncontroversial information,” so laws requiring doctors to disclose the risks of a medical procedure before performing it on a patient should remain constitutional. And Gorsuch also notes that the right to free speech is severely curtailed when the government regulates “speech that encourages the sale of illegal goods because such speech is often associated with culturally criminal conduct.” Perhaps the Court could also rely on this second exemption in a future case involving a lawyer telling a client that it is legal to rob a bank, because such speech would also be “associated with traditional criminal conduct.”
Gorsuch also authorizes malpractice charges, but only when the plaintiff shows “among other things, that he suffered an injury caused by the defendant’s breach of a relevant duty of care.” Therefore, a patient who receives bad advice from a doctor or lawyer and suffers as a result can still sue that professional for malpractice. A state licensing board can also revoke a doctor’s license after harming a patient. Conversational therapists, including those who engage in conversion therapy, should also be held liable for malpractice if they cause serious harm to a patient – although, an LGBTQ+ patient who attempts suicide or suffers because of conversion therapy may find it difficult to prove that their therapist, and not another source of mental anguish, caused the patient’s mental health to deteriorate.
After Chilesthe government is less likely to act in practice prevent professionals from doing things that may harm the client. Suppose, for example, that the government had prevented doctors from telling patients to take the drug ivermectin to treat Covid-19. During the Covid pandemic, many online sources encouraged Covid patients to use this drug, despite the fact that the evidence does not suggest that it is an effective treatment.
It is unclear whether such a hasty attempt to prevent incompetent doctors from prescribing bad drugs would stand up to judicial review under Chiles. After all, the law engages in opinion discrimination if it allows doctors to express the opinion that ivermectin is an ineffective treatment, but does not allow them to express a different opinion.
still, Chiles it leaves most of the laws governing health professionals and the law intact. And Kagan is right that the Constitution casts a very skeptical eye on laws dealing with viewpoint discrimination, even if those laws seek to address real harm.
