A Gordian Knot of Speech and Action
Charles J. Russo July/August 2025The Supreme Court accepts yet another free-speech case with religious freedom consequences.
The Supreme Court justices will hear oral argument in the case Chiles v. Salazar during the Court’s 2025–2026 term that starts this October, and in doing so will wade into questions surrounding gender dysphoria, religion, counseling, and professional standards.
Litigation began when Kelly Chiles, a licensed counselor, unsuccessfully challenged a Colorado law forbidding professionals from using conversion therapy, or talk therapy, from a Christian perspective when working with minors who are confused about their gender identity. The Supreme Court framed the issue in Chiles as “whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause.” Although focused on speech, Chiles will undoubtedly impact the free exercise of religion.
Given Chiles’ potentially far-reaching effect, this article first reviews its background and judicial history, and then reflects on how Chiles might influence the twin First Amendment rights to freedom of religion and speech.
A Divided Decision
Colorado’s Minor Conversion Therapy Law, one of 23 such statutes nationally, bans mental health professionals from practicing conversion therapy designed to change minors’ self-proclaimed sexual orientations or gender identities regardless of their biological sexes. Yet the law permits conversations on “acceptance, support, and understanding for . . . identity exploration and development, including . . . to a person undergoing gender transition.” Counselors who violate the law can be fined up to $5,000 and could lose their license.
Chiles believes that her clients and others are best off when they live consistently with God’s design by accepting their biological sex and that their Christian faiths can help them to understand their identity. Although never stating she can resolve her clients’ conflicts, Chiles professes that individuals can find peace by accepting their God-given bodies.
In December 2022 the federal trial court in Colorado rejected Chiles’ motion to enjoin the law’s enforcement as infringing on her rights to the free exercise of religion and speech. The court based this decision on its belief that Chiles had not demonstrated the likelihood of success on the merits of her claim.
On appeal in September 2024, a divided Tenth Circuit affirmed that state officials could regulate the professional conduct of counselors working with minors because it viewed Chiles’ sessions as only incidentally involving speech. Also, the panel largely ignored Chiles’ religious free exercise claim, holding that the law was neutral toward religion. The court, instead, zeroed in on the law’s aim of preventing an ill-defined harmful impact of conversion therapy.
In his dissent, however, Judge Harris Hartz wondered, first, how the majority could have interpreted licensed counselors’ comments in therapy sessions as conduct rather than speech. Second, he questioned how much deference courts should grant to statements from organizations such as the American Psychological Association supporting transitioning but opposing conversion therapy and whether the court should consider differing views on the value of these statements.
Clarity Needed
In Chiles the Supreme Court should untangle the Gordian Knot created by the split among the federal circuits over whether conversion therapy involves speech, as Chiles maintains, or action, as Colorado officials argue. Previously the justices refused to review a Ninth Circuit case from Washington upholding such a ban. Similarly, the Third Circuit left New Jersey’s prohibition on sexual orientation change therapy for minors in place but interpreted counseling as speech, not conduct. Conversely, the Eleventh Circuit struck such a ban in Florida because therapists’ free speech rights outweighed the state’s attempt to limit what it considered the potentially harmful conduct associated with conversion therapy.
As Chiles heads to the Supreme Court, it is noteworthy that it is the third recent case in which Colorado officials have attempted to force Christians to communicate messages inconsistent with their beliefs. In 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission the justices ruled that officials violated a baker’s right to the free exercise of religion by displaying hostility to his faith-based beliefs when he was unwilling to prepare a cake for a same-sex couple.
Five years later, in 2023’s 303 Creative v. Elenis, the Supreme Court found that the same Colorado commission could not force a Christian wedding website designer to engage in compelled speech by requiring her to provide her services to a same-sex couple. In both cases the justices upheld the speech rights of the plaintiffs, who believed that marriage is a relationship between one man and one woman. The Court held that the commission’s attempt to compel the plaintiffs to create a custom wedding cake or personalized website for those entering same-sex unions was, in essence, an attempt to coerce them to communicate a message at odds with their faith.
Legislatures, of course, have reasonable authority to regulate counselors’ professional activities. On the other hand, questions emerge about the reach of state control. When it comes to counseling minors who are confused about their identities, the Supreme Court will review if Colorado’s legislatures and the courts can treat what is essentially religious speech as conduct.
Beyond Speech
Another question for the Supreme Court to consider is the best interests of minors experiencing gender dysphoria. In other words, the justices must examine whether it is more harmful to allow confused minors to seek voluntary assistance with which the state disagrees but that may help them, or to limit the judgment of counselors by dictating that they can only support, rather than question, youngsters who may opt for irreversible, life-altering chemical and medical treatments, including surgeries they likely do not fully understand. Considering evidence from growing numbers of individuals who regret having transitioned, it seems that caution is in order, allowing minors the freedom to be exposed to perspectives other than those approved by the state.
While Chiles is posed as a free-speech case, its outcome will undeniably affect religious freedom. Consequently the Chiles Court must clarify whether counseling constitutes speech or action. Concurrently, the justices must address the extent to which, if any, officials in Colorado, and elsewhere, can restrict the First Amendment rights of professionals working with minors considering transitioning by limiting them to communicating state-approved messages incompatible with their faith.
In light of 303 Creative, Masterpiece Cakeshop, and Janus—combined with Colorado’s poor track record before the Supreme Court—it appears likely the justices will rule that states cannot compel professionals to communicate in ways violating their beliefs, and thus, that Chiles and other counselors can use their judgments when speaking with clients who have voluntarily sought their assistance. Regardless of the outcome, Chiles bears watching, as it is likely to have a significant impact on both the freedom of religion and the speech rights of counselors providing therapy for gender dysphoria.
Article Author: Charles J. Russo
Charles J. Russo, M.Div., J.D., Ed.D., is the Joseph Panzer chair in education in the School of Education and Health Sciences, director of its Ph.D. program in educational leadership, and research professor of law in the School of Law at the University of Dayton. He can be reached at crusso1@udayton.edu.