Colorado ban on 'conversion therapy' stays in force under federal appeals court ruling

Colorado therapists can lose their professional licenses and face penalties of $5,000 per violation for counseling minors with unwanted same-sex attraction or gender confusion under a 10th U.S. Circuit Court of Appeals ruling Thursday that refused to block the Centennial State's "Minor Conversion Therapy Law."

The Denver-based court upheld "in full" the ruling of a trial court that found licensed counselor Kaley Chiles has legal standing for a First Amendment pre-enforcement challenge, but that she "failed to show a likelihood of success on the merits of her First Amendment claims" that the law violates her free speech and free exercise of religion.

Chiles said she works with minors who are "internally motivated to seek counseling" and "uphold a biblical worldview which includes the concepts that attractions do not dictate behavior, nor do feelings and perceptions determine identity." Not being able to live consistent with their faith leads to "internal conflicts, depression, anxiety, addiction, eating disorders and so forth."

The 10th Circuit ruled that the law is not preempted by the Supreme Court's ruling against California's compelled speech for pro-life pregnancy centers because it regulates "the healthcare profession ... applies to mental health professionals providing a type of prohibited treatment to minor patients" and only "incidentally involves speech."

Chiles did not challenge the trial court's "factual finding" from a sponsor of the law, Colorado Sen. Stephen Fenberg, who said the law is based on "the prevailing science and modern medicine" that allegedly finds conversion therapy doesn't work and "actually harms young people," said the opinion by President Biden nominee Judge Veronica Rossman, joined by President Obama nominee Judge Nancy Moritz.

Judge Harris Hartz, nominated by President George W. Bush, wrote a dissent warning that the "wordplay" of his colleagues, that "engaging in the practice of a profession is conduct (even if the practice consists exclusively of talking)" and thus can be regulated, "poses a serious threat to free speech" and violates SCOTUS precedent.

Because Rossman and Moritz resolved the first issue that way, they didn't address "whether a court should treat as 'science' the pronouncements of prestigious persons or organizations that are not supported by sound evidence," Hartz said.  

"Science has enjoyed tremendous respect because of the great advances it has made since the beginning of the scientific revolution," he wrote. "But it has not made those advances by respecting 'authority,'" giving the example of "virtually all theoretical physicists, then and now," rejecting Albert Einstein's views of "the nature of quantum mechanics."

Alluding to former National Institute of Allergy and Infectious Diseases Director Anthony Fauci's famous pronouncement about his authority to speak on COVID-19, Hartz wrote: " Only in a very weak moment would a true scientist say, 'I am science.'"

"The government has no business censoring private conversations between clients and counselors, nor should a counselor be used as a tool to impose the government’s biased views on her clients," Alliance Defending Freedom Legal Counsel Cody Barnett, who represents Chiles, said in a written statement.

"We will consider all options to stop the unlawful attempt of Colorado officials to ban someone’s speech simply because they disagree with the viewpoints expressed," he said.

The group says the state's "Counseling Censorship Law," as Chiles refers to it throughout her briefs, censors and prohibits certain conversations the government dislikes "while allowing—even encouraging—conversations the government favors."