By Juliana Cote

On October 7, 2025, the United States Supreme Court heard oral argument on whether Colorado’s law banning conversion therapy violates the First Amendment. The Court’s conservative majority seemed eager to strike down Colorado’s law, a decision that would endanger similar laws enacted in over twenty other states. However, there is still hope. Even if the Court strikes down Colorado’s law, State governments, Congress, and individual citizens retain alternative means of challenging conversion therapy.

Conversion therapy, also referred to as Sexual Orientation Change Efforts, is a set of practices aimed at changing an individual’s sexual orientation or gender identity.[1] Most often, practitioners conduct conversion therapy through talk therapy, or a combination of talk and aversion therapies.[2] Whatever form it takes, conversion therapy is ineffective; sexual orientation and gender identity are fundamental and fluid parts of human nature that cannot be “corrected.”[3] Furthermore, when society pathologizes non-conforming sexual orientations and gender identities, queer people suffer.[4] Unsurprisingly, people who undergo conversion therapy in their youth face significantly increased risks for attempted suicide, depression, self-harm, substance abuse, anxiety, and social isolation.[5] Minors are especially vulnerable to conversion therapy harms, reporting nearly double the rates of suicidal ideation and depression.[6] In response to the well-documented dangers this treatment poses, numerous states enacted laws banning conversion therapy for minors.[7]

Despite medical and academic consensus, many therapists continue to practice conversion therapy, challenging bans. This includes Kaley Chiles, a Colorado-licensed therapist who claims the law violates her First Amendment right to freedom of speech.[8] The claim that conversion therapy bans violate therapists’ rights to free speech is at the heart of the legal dispute.[9] The First Amendment protects individuals from government interference in their right to express themselves.[10] This, however, does not mean those with professional expertise can use speech as a means of delivering substandard or harmful care.[11] The challenge then lies in determining whether conversion therapy should be classified as protected speech or as conduct. Regulations that target protected speech are subject to strict scrutiny, which is often the kiss of death for such laws.[12] However, if a law only targets conduct with an incidental burden on speech, it is subject to lesser scrutiny.[13]

In light of this, Chiles filed a lawsuit against Colorado in the Colorado District Court.[14] Chiles’s argument hinges on the fact that her therapeutic practices are verbal, so a law banning her from performing this therapy impedes on her freedom of speech.[15] Conversely, Colorado contends that its statute does not violate Chiles’s right to free speech, because it only regulates her performance of a specific treatment, regardless of the treatment’s vehicle.[16]

The Colorado District Court upheld Colorado’s ban on conversion therapy, ruling that the law regulated conduct rather than speech and, on appeal, the Tenth Circuit affirmed.[17] These courts ruled that Colorado’s law did not infringe on the First Amendment because it merely prohibited the conduct of attempting to change someone’s sexual orientation or gender identity, not the speech used in therapeutic settings.[18] The court emphasized that the law applied only to professional conduct, not to the broader array of speech in the public sphere.[19] Unsatisfied, Chiles petitioned for certiorari Supreme Court, which seemed largely sympathetic to Chiles’s position.[20]

Suppose the Tenth Circuit’s decision in Chiles v. Salazar stands and Colorado’s conversion therapy ban is upheld. In that case, it will set a significant precedent in favor of state-level regulation of professional conduct. However, even if the Supreme Court rules that conversion therapy bans are unconstitutional, other avenues exist to protect queer youth from the harms of conversion therapy.

One promising way legislatures could reduce First Amendment challenges is to label conversion therapy as a fraudulent practice. Then, legislatures could include conversion therapy in a larger ban on fraud. In fact, this alternative is well on its way to fruition. On May 5, 2025, Representatives Ted Lieu and Cory Booker introduced the Therapeutic Fraud Prevention Act (TFPA) in the House of Representatives.[21] The TFPA targets conversion therapy as a commercial activity, whereas other conversion therapy bans (like Colorado’s) regulate it as a medical procedure.[22] This change is significant because it allows States to circumvent the First Amendment issues raised by challengers like Kaley Chiles. After all, fraud regulations address commercial activity without regard for the distinction between conduct and pure speech.[23] Therefore, under the TFPA, therapists who claim to “treat” sexual orientation or gender identity would be subject to civil penalties.[24] Additionally, the TFPA’s labeling of conversion therapy as fraud creates a civil violation imposable by the federal government and a private right of action and legal remedies for individual plaintiffs.[25] Thus, the TFPA expands recourse for victims of conversion therapy and states seeking to regulate the practice.

The legal battle over conversion therapy bans, as exemplified by Chiles v. Salazar, underscores the tension between protecting public health and safeguarding constitutional rights. While the Supreme Court’s ruling on the case could set a critical precedent for state-level regulation of harmful professional conduct, it is essential to recognize that alternative legislative avenues, such as the Therapeutic Fraud Prevention Act, may offer a pathway to circumvent First Amendment challenges. Even if the Court rules against conversion therapy bans, these legislative efforts could provide renewed protections for minors by framing conversion therapy as a fraudulent practice rather than a legitimate therapeutic method. Ultimately, the ongoing legal battle against the dangers of conversion therapy highlights the importance of the collective struggle for LGBTQ+ rights. Continued advocacy and creative legislative solutions are essential in this political moment.

[1] M. Williams, Conversion Therapy on LGBTQ+ children as a Form of Torture and the Rights of the Child in the Face of the United States Constitution’s Free Speech and Religious Free Exercise Clauses, 26 J. Gender Race & Just. 393, 393 (2023).

[2] Id. at 418.

[3] Substance Abuse and Mental Health Servs. Admin., Ending Conversion Therapy: Supporting and Affirming LGBTQ Youth 15 (2015), https://perma.cc/ZF7Z-MT6N.

[4] Am. Psych. Assoc., Resolution on Sexual Orientation Change Efforts 2 (Feb. 2021), https://perma.cc/6PWS-EFS8.

[5] Am. Psych. Assoc., Resolution on Appropriate Affirmative Responses to Sexual orientation Distress and Change Efforts 30 (2022), https://www.apa.org/about/policy/sexual-orientation.pdf.

[6] Am. Psych. Assoc., Resolution on Sexual Orientation Change Efforts 2 (Feb. 2021), https://perma.cc/6PWS-EFS8.

[7] Amy Harmon, More than 20 States Have Banned Conversion Therapy for L.G.B.T.Q. Minors, N.Y. Times (Oct. 7, 2025), https://www.nytimes.com/2025/10/07/us/politics/conversion-therapy-state-bans.html.

[8] Chiles v. Salazar, 116 F4th 1178, 1191 (10th Cir. 2024).

[9] Tingley v. Ferguson, 47 F.4th 1055, 1079 (9th Cir. 2022).

[10] U.S. Const. amend I; The First Amendment is applicable to the States through the Fourteenth Amendment. U.S. Const. amend. XIV.

[11] Dent v. W.Va., 129 U.S. 114, 122 (1889); Planned Parenthood of Se. PA v. Casey, 505 U.S. 833, 881 (1992).

[12] See Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020).

[13] Nat’l Inst. of Fam. and Life Advocs. v. Becerra, 585 U.S. 755 (2018) [Hereinafter NIFLA].

[14] Chiles v. Salazar, 116 F.4th 1178 (10th Cir. 2024).

[15] Id.

[16] Id. at 1214.

[17] Id. at 1192.

[18] Id. at 1214.

[19] Id.

[20] Chiles v. Salazar, 145 S. Ct. 1328 (2025).

[21] Therapeutic Fraud Prevention Act, H.R. 3243, 119th Cong. (2025).

[22] Therapeutic Fraud Prevention Act, H.R. 4146, 119th Cong. (2025).

[23] 15 U.S.C. § 45(a)(1).

[24] Therapeutic Fraud Prevention Act, H.R. 4146, 119th Cong. (2025).

[25] Jordan Hutt, Note, Anything but Prideful: Free Speech and Conversion Therapy bans, State-Federal Action Plans and Rooting out Medical Fraud, 92 Fordham L. Rev. 255, 283 (2023).