Do Bans on Conversion Therapy Violate the First Amendment?

On October 7th, 2025, the Supreme Court heard oral arguments in Charles vs. Salazar. Hello friends, I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center's a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. This week, we'll recap the oral arguments in Charles vs. Salazar and discuss whether Colorado's ban on conversion therapy violates the First Amendment. To help us explore this important topic, we have two of America's leading scholars on the First Amendment. Stephanie Barkley is professor of law at Georgetown Law School and the faculty co-director of the Georgetown Center for the Constitution. Her research focuses on the role our Democratic institutions play in protecting minority rights, especially the intersection of free speech and religious exercise. Stephanie, it's wonderful to welcome you back to We The People. Thanks so much, Jeff. It's great to be here. And Erwin Chemerinsky is dean of UC Berkeley School of Law and the Jesse H. Chopper Distinguished Professor of Law, a leading First Amendment scholar who's the author of 19 books, including preeminent case books and treatises about constitutional law, criminal procedure and federal jurisdiction, or when it's wonderful to welcome you back to We The People. It's great, my great pleasure. Thank you for having me. Stephanie, let's jump right in. What is Colorado's ban on conversion therapy? And why do you believe that it violates the First Amendment? Sure. And maybe I'll begin by explaining what this case isn't about, because conversion therapy brings a lot of things to mind. But this isn't a case where we have a counselor trying to engage in discredited coercive or aversive techniques like shock therapy. But everyone in the case agrees that those sorts of practices have no place in modern counseling. But what Miss Childs is trying to provide is client directed talk therapy to help clients achieve their own stated goals. And it's only talk therapy. There's no other sort of procedure. So if a client comes to her and says, "I'd like to have help reducing unwanted behaviors or finding harmony with the physical body that I was born with," that's what Miss Childs therapy is focused on providing for them. Colorado law permits counselors to speak messages supporting a gender transition. But Colorado prohibits messages supporting detransition or helping a client live at peace in their own body. And so Miss Childs is arguing, "Edley, is this content-based discrimination of speech? This is viewpoint-based discrimination of speech. The court has made clear in previous cases, like Nifla, that simply labeling speech as a treatment in the medical context and even if it's professional, that does not erase First Amendment protection. And so that's a reason to hear what I think. The First Amendment likely will end up providing full First Amendment protection from Miss Childs. And the big problem Colorado has is that if we're in strict scrutiny or even intermediate scrutiny, and they have to prove that there's some sort of harm, none of the studies were evidence that Colorado sites, and they have a lot of studies, but none of those studies are about this type of talk therapy with a licensed professional or the consenting minor who's seeking to accomplish their own goals. In fact, some studies show that that's helpful for clients. And so I think Colorado wouldn't be able to meet their burden. They didn't, and the evidence they introduced below, and we're likely to see a ruling in favor of Miss Childs in this case. Thank you so much for that. And or when, tell us why you think the Colorado ban does not file like the First Amendment. Thank you. I want to make three points. First, the case isn't right for review. The law is adapted in 2019. It's never been enforced. This is so like Poe versus Alman. The 1961 Supreme Court case. There's a challenge to a state law that prohibited contraceptives. And the Supreme Court said the law hasn't been enforced in a century. It's not yet right for review. Second, states him always through their law since standards of medical care. This includes regulating the speech of health professionals. Doctors have to describe the side effects before procedure drugs. Doctors must get informed consent. There's a very famous case that said that a therapist has the duty to warn third parties. There's a reason to believe that a person might be harmed. All of that is regulating speech. That's what Colorado law does. And third, the evidence is overwhelming that such therapy is ineffective and is harmful. Last year in the United States versus Scrimetti, the Supreme Court stressed the need for courts to defer to the judgment of state legislatures with regard to medical procedures. 25 states have adopted laws like this. I think the Supreme Court will and should defer to the Colorado legislature. Many thanks for that. And for framing the issue so well. Well, so much of this case hinges on whether a medical treatment that's purely speech should be viewed as speech or conduct. And both of you come down on opposite sides of the question. Stephanie, you addressed three different approaches to the speech conduct distinction. Tell us about those and why ultimately you believe that this is speech. Yeah, so the Supreme Court has said that in context like the medical context, if there is speech that is incidental to some other procedure like getting informed consent for a surgery, then that speech is bound up with conduct and that's not going to receive full First Amendment protection. That's not what's going on here. This is not speech that is incidental to describing medicine or some other sort of surgery or something like that. This treatment is the speech. And that's different than the cases that the court in Nifla suggested might receive lesser First Amendment protection. Nifla was also a professional speech in a medical context and the court provided full First Amendment protection there. Not only that, but in Nifla, the court cited disapprovingly to night circuit cases that had tried to say if it is a medical treatment, if speech in the counseling context is a medical treatment, it shouldn't receive full First Amendment protection. And the court didn't buy that argument in Nifla and excited disapprovingly to those night circuit cases. So the court has made clear in that case and in other cases that simply labeling speech, something else like treatment, cannot erase the full First Amendment protected activity. Or when you argue that while Nifla declined to recognize a categorical professional speech exemption to the First Amendment, it did hold the communications as part of the practice of a licensed profession or constitutionally regular. Tell us more about that. Yes, we're talking here about National Institute Family Life Advocates versus Basera. And I think it's quite important that the Supreme Court in that case while striking down the California law was explicit that states can prescribe standards of care with regard to medical procedures. That's a 485 US 769 and 770. The state of Colorado is doing here is prescribing a standard of care for therapists. I don't see a basis for drawing this distinction between what's incidental versus what's core. The reality is that informed consent requirements are a core to the medical procedure themselves. Well, go back to a case that I alluded to. There is famous one, the terrorist off case that said that the therapist knows that a patient is likely to harm a third person. The therapist has the duty to warn the third person that it's not incidental to the therapy. Ultimately, the state gets to prescribe the standard of care such as the malpractice laws. And that's all that Colorado is doing here prescribing the standard of care. Stephanie, tell us how the speech conduct distinction feared an oral argument. And also the scrimmedia analogy, Justice Jackson asked the government, I wonder why this regulation isn't the functional equivalent of scrimmedia. I mean, I realized that there were two different constitutional provisions that issue, but the regulations work in basically the same way. And the question of scrutiny applies in both context. So it just seems odd to me that we might have a different result here. Tell us about the justices, thoughts and questions around that issue. Yeah, so I don't think the arguments that my friend or when they're making about distinguishing the speech is though it's something different because it's a standard of care. And it's in the medical context and therefore, it doesn't receive full first minute protection. Those didn't farewell at all. Justice Kagan wasn't even particularly moved by those arguments. And I think for good reason, they asked Colorado by your reasoning. Does that mean that if we were dealing with a context where, you know, decades ago, when being a gay person was viewed as a disorder. If a state had passed a law and prohibited counselors from encouraging someone to embrace their sexual identity. What if a state back then or might have passed a law prohibiting talk therapy that affirmed? Or if a state like Texas wanted to pass a law saying that counselors can't encourage a young person to move forward with a social gender transition. And wouldn't that be permissible? And Colorado said, that's right. Yes. The state could forbid a regulated licensed professional from affirming homosexuality. If that was fall under the type of reasoning you're offering here. And Colorado said, that's right. So I think that was troubling for all the justices, including justices like Justice Kagan and Sotomayor that those sorts of that sort of speech from a counselor could be prohibited too. Under the rule that Colorado's proposing and that everyone is defending. So I don't think that that argument will likely carry the day. Justice Kagan pointed out she said, if we think that this is viewpoint discrimination here and she seemed to think that there are reasons to think it is viewpoint discrimination. Could we just decide the case on that basis and not make broader rulings about some of the other issues related to content base, which is a broader category than viewpoint based speech. The thing about scrimetti, there were questions asked about this. Scrimetti was not dealing with a first amendment protection or some other constitutional question. In fact, that was an antecedent issue they had to decide in the cases. Was there a constitutional right that was being triggered in a heightened scrutiny way. And once the answer was no in scrimetti, then the default norm is deference. But here, because there is a first amendment right issue, the default norm is scrutiny, not deference. And if we want to talk about double standards that Colorado was taking and scrimetti versus this case, Colorado told the court and scrimetti that even when forms of treatment involved heightened medical risks, the long standing approach of states in this area has been to enable minors and their parents to make informed medical decisions. But that's precisely the type of informed medical decision Colorado is trying to take away from minors. In this case, when there are therapists like Miss trials, we would like to help them. Irwin, your thoughts both on the scrimetti question and the distinction Stephanie just drew and also the question she flagged, which came up at our argument from Justice corsage, the mirror image question about whether a state in the 1970s could have passed a law prohibiting talk therapy that affirmed homosexuality. Let me deal with each of those. I do think there's a tension with regard to this case in scrimetti. I wish we could talk about both cases outside of the culture work context. There's so much a product of the culture was in the context of scrimetti chief justice Roberts begins his opinion by stressing the importance of deference to the legislature. Justice Thomas in his concurring opinion talks about how there's deference to the legislature when it's making choices with regard to public health. This is the case when choice by the legislature. The only difference is that in this instance conservatives want to strike down the regulation. Of course, Professor Barclay's does is right that this is a case about the First Amendment and scrimetti wasn't the case about the First Amendment, but scrimetti involved the scrimination against transgender individuals historically discrete and insular minority. I think it clearly involved sex discrimination that involved heightened scrutiny. I think the Supreme Court rejected those arguments because of the Supreme Court's underlying belief that there should be deference to the legislature. When it comes to Medicare decisions, one of the things we haven't talked about enough here is that the overwhelming consensus of medical professionals is that conversion therapy is not effective and it is harmful. And that's why the deference to the legislature is appropriate. That's why even if it is heightened scrutiny, this means it. I think the answer to Justice Gore's such a question is that he asked such a law would be constitutional for the same reason that this is constitutional. More on scrimetti, both Chief Justice Roberts and Justice Kagan asked whether the law would be viewed differently if the therapy were coupled with medical procedures or prescriptions. Stephanie, your thoughts on those exchanges and whether the fact that this law is pure speech distinguishes it from scrimetti. Yeah, I do think that the justices seem to think that if the speech was coupled with or bound up with some of those sort of medical procedure, it would be treated differently. It would receive lesser protection. They've already affirmed that in Nifla. And so part of what's going on here is that where it is pure speech, it is the speech itself that the government is trying to regulate as treatment. Then we're just in just a sort of an even asked about this. Aren't this pure speech elements on something that we would protect us. That's what we're dealing with. They were at least asking about that. And I think that is how the court will ultimately rule on this case. I do want to touch on the claim that Colorado is making and the Irwin was just addressing that there's like an overwhelming medical consensus in this case. There's certainly medical consensus that shock therapy or coercive therapy or other sorts of aversive techniques are techniques that cause harm and therapy. And no one is asking to perform those techniques in this case. And nothing that the Supreme Court does or rules about in this case will make it such that Colorado can't continue to prohibit that or the other. It's less than 25 of the states that would prohibit miss child's type of therapy. Utah has an exemption for her therapy. Virginia has agreed in a consent decree that they're not going to apply their law in this type of context. So it's less than 25. But the less than half of the states that have laws in the book, they can all continue to prohibit the type of behavior that we do have a medical consensus about. What we do not have a medical consensus about is that license, talk therapy to a consenting minor will cause harm. There are no studies or surveys that focus just on that type of therapy and find any sort of causation linked to harm. The evidence that Colorado admitted it trial below shows by their own concession that they have not proven causation and Justice Barrett honed in on this during our argument she said can you tell me your very best evidence that this particular type of therapy causes harm and council for Colorado cited two studies and on rebuttal. But for miss child's pointed out those two studies conflates conversion therapy or excuse me, coercive therapy and shock therapy with this other therapy. They don't separate them out. They don't prove causation. So we don't actually have a single study or survey to back up Colorado's burden on this case. There is no medical consensus about that and pointing to the broader consensus about other things won't allow Colorado to satisfy burden under strict scrutiny. Who in your response to Stephanie's claim that there are two studies that conflate coercive and shock therapy with consensual talk therapy but no consensus that consensual talk therapy is harmful. To be clear, there is a strong consensus of medical associations, psychological associations that conversion therapy, including talk therapy is an effective and harmful. We can go to the footnote that lists the many organizations, we can look at the amicus piece that been filed by those organizations. So there's much that we can argue about, but I don't think that we can argue that there's not a consensus among medical and psychological associations that this is harmful. We can also try to look at the studies. There is a study for example that shows that those who are subjected to conversion therapy are twice as likely to attempt suicide is those who have not been subjected such therapy. And then we can get into what was the specific kind of therapy there, but there's no evidence that this therapy is effective and there's certainly evidence that this therapy is harmful. Again, if we're going to be consistent with scrimadity, it should be the judgment of the Colorado legislature that this is the type of medical practice that the state should be able to regulate. Stephanie, your thoughts on our Wednesdays claims and also I was struck that on rebuttal and Mr. Campbell said that the law harms gender dysphoric kids because the statistics we've cited in our verified complaint indicated 90% of young people who are struggling with gender dysphoria before puberty work their way through it. And real line with their identity with their sex, but if one of these children go to a counselor, they specifically say, this is the help I want they cannot receive that help from someone like my client. Now, just both of those things, so when Irwin says we have studies talking about increasing the suicide rate, he again is referring to studies that include things like shock therapy and coercive therapy. There are no studies that show that mistrials talk therapy to consenting minors when it's only tech therapy and it's helping the minors pursue their own goals. There are none, not a single study that shows that that increases suicide rates, there are some, there's some evidence introduced by Colorado itself that in fact this type of treatment helps those individuals live better and happier lives there in Colorado zone experts that there's some evidence that some clients have had very positive results. Why is that it goes to the second question that you were asking about Jeff, which is that even in WPATH guidance cited by the Obama administration, it shows that for young people who are struggling with gender dysphoria, if left to go through puberty on their own up to 90% of those individuals will come to become comfortable in the body that they were born with. So it's possible that with something like therapy that mistrials can provide that transition and easing of coming to accept the bodies they were born with might be made easier for some of these young people. So that's one option we can take, we can take a cautious approach knowing that the statistics show that a number of these individuals will ultimately work through this and or we can take a bold moving forward in cashously approach where we prevent anyone from offering any options to these young people and just are encouraging a life of potential medication or medical procedures. And some of these young people later de-transition and then that like that's there's also suicide risks for those young people. So how taking options away for parents and young people with informed consent to make decisions about what will make the best life for them when there's no evidence of that harm is going to be helpful for the young people. I think it's a hard argument to call for Colorado to make now Irwin referred to consensus of medical associations what we have are some statements and some amicus briefs by medical associations. That's not what's required under strict scrutiny when you have disputes about whether or not a government policy is causing harm Supreme Court's case and Brown says that we need evidence like studies or other things that can demonstrate causation just a solidar pointed out that it is often been the case. Including like when we had a period in history that is a dark period with things like eugenics or when we said in buck versus bell that three generations of individuals is enough that medical associations have been politicized that's one reason we don't just rely on potentially political or ideological statements from groups we rely on hardcore data and evidence showing causation which is absolutely lacking in this case. Or when your thoughts on that evidence cited about gender dysphoria Mr Campbell also added that 90% of the time once people start down the path of social transition it will lead to the root of medical transition which the cast report tells us comes with harm and devastation the cast report of course was crucial to the court's opinion and scrimmety as well. And then your response to Stephanie's suggestion which justice a leader raised as well that medical associations have been politicized from buck bebell to today and we should look for more neutral evidence. First the cast report specifically address this conversion therapy and specifically says that conversion therapy should not be done and so if the cast report is going to be involved I think it very much supports Colorado's position second I disagree with professor Barclay that strict scrutiny should be the test here as we said the state has to be able to describe standards of medical care that includes medical care that's provided with regard to speech. Third with regard to medical associations I believe that expertise matters and I believe that when the richly every reputable medical and psychological association comes to a conclusion that that should be given way of course there are instances where medical associations like the American bar association for lawyers or associations for the professionals have been terribly wrong in the past. But because sometimes they're terribly wrong doesn't mean that their ideological or political and they should be dismissed expertise matters and the expertise here is overwhelming that conversion therapy is an effective and harmful to minors. Stephanie maybe another beat on justice elitos pushing back on the contention of the ban was intended to enforce the professional standard of care and his citation of errors were medical professionals believe that children with Down syndrome should be placed in an institution shortly after birth what's your sense here and it's dramatic about the justices reaction to their concerns about the politicization medical associations. Yeah so what I didn't hear Irwin say is that he thinks that a medical association statements would satisfy strict scrutiny I still still hear him arguing that strict scrutiny shouldn't apply here but. So I guess I'd be interested in knowing that if he agrees that if strict scrutiny applies which I think it will and I think there are easily six votes for that right now based on oral argument if strict scrutiny applies then statements by medical associations won't be enough including for those reasons that you just pointed to Jeff. And that justice leader pointed out medical associations have been concerning in other ways including making recommendations for disabled young people of those with Down syndrome that we now view is really problematic and that's why we have strict scrutiny to sess out is this a valid claim is this a neutral claim or is this a politicized claim. And so if strict scrutiny applies we require more evidence than that and Colorado doesn't have it Irwin talked about the cast report and this is something important Irwin I just encourage you to continue this conversation you keep using the label conversion therapy which means lots of things and that's obviously the label of Colorado's law when the cast report talks about conversion therapy it is talking about. Coercive therapy and a verse of therapy and it says it shouldn't be done and we all agree it shouldn't be done and mistrials doesn't want it to be done but I would encourage you to make statements better when our. Talk therapy that is helping a client accomplish their own goals because the cast report does not say that shouldn't be done that's not part of the cast reports recommendations there are no recommendations that say that. In any sort of document that has studies or evidence that Colorado is pointing to so that's it that's just another example of why we need to focus on the issue in this case because what mistrials is seeking is not. A facial remedy that would strike down the conversion therapy law against all of those other bad practices Colorado's law will continue to prohibit all of those things that have actually been linked with harm it will only be a small as applied modest remedy for counselors like mistrials who want to engage in therapy. To allow clients to accomplish their own goals and it's just a very different ball game. Herwin Stephanie has stressed the difference between coercive and consensual therapy several times your response and might. The courts applying stricter intermediate scrutiny distinguish between coercive and consensual therapy in ways that could save the Colorado law law. I of course recognize the distinction that she draws however let me go to the points that she makes first with regard to medical associations that sometimes medical associations been wrong doesn't mean we should always dismiss the conclusions of medical associations expertise matters and when every medical association comes to inclusion it should be given great way. I think it's part of assessing whether there's a compelling interest the expertise of medical associations deserves some deference and I think that here it's together with studies second if you read the cast report it is a categorical condemnation of conversion therapy it doesn't say conversion therapy of this sort is fine in conversion therapy of another sort isn't it is much more categorical in that way. And again I think what we're missing in this discussion is the ability of states to set a standard of cure other that justice spirit really got it this time but could a state through malpractice liability say that this is below the standard of cure I think the answer that question has to be yes well likewise the state can do it through malpractice liability through its tort law is to be able to do it by statute as well. Stephanie a question that the justices have at the end of the argument whether if a majority of the justices conclude the law does discriminate against child and strict scrutiny should apply. The question is should the court apply strict scrutiny on its own or send the case back to the lower courts for them to do so justices so the mayor and Jackson both suggested perhaps the lower court should consider the question for the first time and justice barrett indicated she might agree your thoughts on that question. I think that the court is likely to go on to address strict scrutiny in the first instance in a very similar way that the court did in the month mood case so much which was just last term this is again the case where parents were asking for an opt out for their children and pre K and elementary school. When they had religious objections to their children being read books that had were taking positions about LGBTQ issues and the lower courts had just ruled on a preliminary issue and whether or not there was actually a burden in that case and so the government did ask assuming you think the lower courts got it wrong in that burden issue can you just. Just just remain on that basis and let the lower courts address strict scrutiny in the first instance and this Supreme Court declined that invitation in my food because there was a clear conflict between the law and what the parents wanted to do. There wasn't really a question about facts anymore and so I think they thought it would be a waste of judicial resources to send it back number one and number two irreparable harm was going on every day while those first amendment rights were being denied the exact same thing is true here so I think that we're very likely to see the court go on to address strict scrutiny. This really expected something that or when said earlier about mootness but I think the case or rightness but I think the case is absolutely right because the statute squarely prohibits the exact same thing that Ms. Child says said she used to do and she has an inter declaration of statement that she would continue to do there's a direct conflict between them even by the end of the argument. Justice Sotomayor said well I guess that set settled standing based on some of the concessions made by Colorado so there's a clear conflict not only that but council for Ms. Child pointed out that she has received threats about being investigated during the pendency of this case because it's not just Colorado that can file those sorts of things it's also private parties and some of those. Fileings had happened during the pendency of the case there's no question that she has standing I don't think there's no real question that the case is right and there's no real question about the facts that are relevant to satisfying strict scrutiny and again I do not see. I don't even know if I see more than two votes for saying that there's there's not going to be some sort of scrutiny in this case but we surely have six votes for strict scrutiny based on the court's previous ruling in NIFLA. And so unlike in Scrametti where the court said there was not a constitutional right protection based on your transgender status and there wasn't sex discrimination and therefore there is no heightened scrutiny and we are in the default plan. Here we're going to be in this heightened scrutiny land and below there was a trial both were Colorado had the opportunity the inter evidence their own evidence admitted that they can't establish causation their own evidence didn't separate out. This particular type of activity that miss trials likes to engage in they knew that the other side was seeking a strict scrutiny protection around notice there's nothing really else for the Supreme Court to do other than review that record which is why I think they're very likely to go on and rule that not only does this receive strict scrutiny protection under the first moment but that Colorado cannot satisfy that burden and did not satisfy it below or when your thoughts on whether you think that lower courts should apply the strict scrutiny analysis in the first instance or not and the strict scrutiny does apply why you think the law a status positive. Yes I think I would disagree with each of the points Professor Barclay made first this case is distinguishable from a mood versus Taylor in that instance the Supreme Court said that parents had the right to notice and opt their children out of material inconsistent the religion that presented gay lesbian transgender individuals in favorable light there wasn't a factual there wasn't a scientific there wasn't a question of expertise. So once the court said it's strict scrutiny there wasn't any other analysis to be done is whether it's a compelling interest quite the country here the more you listen to Professor Barclay the more you hear that she believes this comes down to what are the studies and what do they show and are they sufficient to meet strict scrutiny. If that's the question then the lower courts should have the opportunity side it shouldn't be the Supreme Court on itself second I think she ignores that this is a Colorado law that's never been enforced not against anyone it's there for much like the po versus all men's situation. Also it is we don't have a developed record we don't know what she's done or what the therapist is being essentially disciplined for this is a case that calls for having a developed record third Nifla is clearly distinguishable Nifla said states can prescribe standards of cure dance what's been done here I'm always uncomfortable predicting outcomes based on oral argument. I think you're just a spirits questioning towards the end indicates that she might be very inclined to send the case back. There's no doubt we're just a solid stance and I don't think it's much doubt we're justice is so many Jackson stand. I also don't find it very productive to predict because we're eating tea leaves. Stephanie how important is the free exercise clause in your argument the words free exercise did not come up at all at oral argument and in fact the word religion only came up once according to my word search of the transcript your brief does argue that focusing on the content of child's communication discriminates on the basis of her views on professionally disfavored biblical teaching and you think that teaching that she and her patients believe and have a constitutional belief that right to believe in exercise. But you know ultimately do you expect the free exercise claim to get any separate weight or will it ultimately be decided as a pure speech claim. I think it was almost certainly be decided as a pure speech claim at the Supreme Court so in this ruling if there was any if there was you know a parallel universe in which the Supreme Court. Rule against mistiles on speech she still does have a free exercise claim below so that was part of what was litigated but the question presented before the Supreme Court only raises speech issues I think you're right to point out that there could be this independent basis for counselors to raise these sorts of claims in the religious exercise context I'll just say very briefly. And Erwin is right that I am pointing out the need for looking at real studies in this case but the reason there's no factual issue even despite that is because the evidence that Colorado it offered below before the lower court that Erwin is talking about when it had the opportunity to marshal evidence Colorado's own evidence concedes that cannot establish causation of harm for this type of therapy so there is no dispute effect we're done with Colorado. The law center strict scrutiny I think with that concession alone combined is the fact that they have no studies proving the opposite and again we don't need a lot to be enforced in order for it to be right Susan Anthony is a classic case is an example of a pre enforcement challenge adds that the fact that filings have been made against mistiles during by private parties during the tendency of this case and those are other reasons why a reputable harm is ongoing a reputable harm that I think will motivate the Supreme Court to resolve this case. And to rule on the strict scrutiny issue Erwin what are your thoughts of the about the free exercise claim if it's raised independently. We haven't mentioned that the Colorado law has an exception for ministers and also the Colorado law would permit a reference by child's or others to ministers and that could be quite important if the court would consider the free exercise claim. Also we all know that employment division versus Smith from 1990 says that if it's a neutral law of general applicability then it doesn't violate the free exercise clause. The Colorado law is not motivated by desire to interfere with anybody's religion and it applies equally to all other than the exception for ministers. I also want to very much take issue with Professor Barclay says when she says there's no dispute over the facts Colorado is conceded there's an enormous dispute over the facts here there's a huge dispute over the conversion therapy is effective and that's harmful. Professor Barclay declaring that there's no dispute of the facts doesn't deny that there is a crucial dispute Colorado hasn't conceded that there's no evidence with regard to the effects of conversion therapy and it's precisely because the dispute of the facts. If strict scrutiny is the task Colorado should have the opportunity to produce the facts to show that it meets strict scrutiny Stephanie well first of all maybe another beat on the free exercise claim substantively since you do articulate it. And then your thoughts on the dispute over the fact. Yeah so there's an exception that justice Thomas pointed out not just for religious ministers but also for life coaches who so who aren't necessarily religious so that means if we were raising this claim in the free exercise posture this would not be a generally applicable law because Colorado is exempting conduct that is just this point Thomas pointed out. It's just as much of a danger to its asserted interest as mischiles therapy is in fact it might even be more problematic to have an unlicensed untrained life coach running around providing this sort of therapy and then someone like mischiles and so that undermines Colorado's claim that you know it's advancing this law in a generally applicable way doesn't matter whether they're motivated to interfere with religion that's not the test to decide if a laws neutral and generally applicable and so strict scrutiny would apply under the free exercise laws as well. I'm not saying that there's no dispute over any facts I'm saying there is no dispute that Colorado has not proven causation of harm for mischiles type of therapy their own evidence can see that and that point on which there is no dispute is fatal to Colorado's claim understood scrutiny. Or when further responses to that and then and then let's me ask you again about the relation between the regulated speech and medical treatment which for you is key you believe that if the regulated speech is attenuated from specific care sought by the patient then it triggers heightened scrutiny and if it's part and parcel of the delivery of treatment then it's conduct that can be broadly regulated. Sure as to the first point Colorado very much does dispute exactly what Mr. Barkley says Colorado claims that there is sufficient evidence to show that even just talk therapy is ineffective and harmful. We can each sort of conclusion recipe Barkley can say there's no dispute with regard to the evidence and I can say there's an enormous dispute with regard to the evidence but the point is this is what should go back to the lower court and the lower court should be able to answer the question about which we're making categorical statements there's a tremendous dispute between Colorado and mischiles as to what the evidence shows when a lower court that's the ones to look at the evidence do so first. In terms of the medical treatment point I think you're absolutely right Jeff that this is what the case is about states have always been able to describe standards of care these include standards of care that involve just speech. I'm going to go back to the example of the terrace off case a therapist who learns that there's a danger to a third party has to warn the third party of that that speech that's integrals with the medical care learned with regard to the patient I don't understand the distinction between informed consent laws where doctors have to tell patients what the side effects are going to be with the potential consequences are going to be to all about speech in this. Just calling one in Sudan and the other core is nothing but labels I think what all shows is states get to prescribe the standard of medical care and that's what Colorado is doing here. Stephanie on the standard of care question you see Nifla as having the court having considered and express they rejected as you put it the idea that professional speech is entitled to lesser constitutional protection. Yeah so I'll address Nifla first and let me just give you one more citation about the the factual dispute in this case so. It is true that states can set standards of care but like in the typical malpractice context that's actually part of the trial if someone brings the malpractice cases to also decide like what is the standard of care what are professionals doing in this context and. In addition in a malpractice suit one reason that there are more First Amendment protections there than in a prophylactic prior restraint broadly worded sort of law which is exactly what we're dealing with is Colorado's law so you know in the malpractice context. The individual bringing that claim also has to prove causation and prove harm so it's not just standard of care so that is the standard of care floating around in a vacuum is usually what we're dealing with and that sort of. Proving of causation and harm is much more protective under the First Amendment but council from his child pointed out that might even be under the malpractice context maybe sometimes there could be unique. First amendment issues because usually the standard of care and the long tradition that we have of standard of care under malpractice are broadly worded based on medical evidence and what the industry is doing it would be weird for a new malpractice law to be passed to say it is a per se violation of standard of care. If we engage in this type of speech and if we did have a malpractice new law like that that very well might also raise First Amendment context it's not as though just because. A state has passed a tort law or someone has violated a tort law that the First Amendment has nothing to say about that and we know that from the Supreme Court Snyder case which eight to one ruled in favor of speakers the Westboro Baptist Church who the jury had given an instruction that their speech was a violation of intentional inflection of emotional distress sort of. Standards under tort law and that was also something that trouble the First Amendment so so standard of care is not a bulletproof safe harbor and even though generally states do have a long tradition of provide of being able to set those and having a lot of discretion when they're providing them in neutral science based ways. So one last point about is there is there not dispute in this case about causation so Colorado below entered a report and evidence that says quote they conclude that there is a dearth of scientifically sound research on the safety of these efforts and that existing studies do not provide valid causal harm. That's at J.A. 253 to 54 they also say at J.A. 370 there's no scientifically rigorous studies that support a definitive statement about whether Mr. Child's type of speech and bracketing that are safe or harmful and for whom in quote and Colorado's expert that reviewed these studies said that they quote cannot determine causal effects or causality as J.A. 64 to 65 so on this point Colorado's own evidence acknowledges they can't prove causation and that's all that any. Appellate court ever needs on a record to decide the legal issue of how they satisfied strict scrutiny. Irwin responses to those points sure as to the first states of always through their tort law set the standard of care in now practice. And I can't think of an instance where standard of care was declared unconstitutional because it was a stricting speech and standards of care restrict speech all the time the examples that I've mentioned. Whether it's the terrorist case or informed consent laws and the state can set the standard of care through its tort law. It can also do so by statute there's no reason for a distinction and this was a point that just the spirit was making it oral argument. Second, this isn't a prior restraint no one would describe what the Colorado law is is fitting within the legal definition of prior restraint which is really about traditional orders. In administrative systems prior restraint is just using a label to create a connotation but that's not what this case is about. Nor is Snyder versus Phelps relevant to this case had nothing to do with professional speech. It was a claim for invasion of privacy and intentional affliction of emotional distress. I think Professor Barkley presents the record in this case in a very slanted way. If you read the amicus briefs in this case they certainly suggest much more in the way of studies that show that conversion therapy is ineffective. Something she has not addressed at all and certainly there are studies that indicate that trying to change somebody's sexual orientation or gender identity are harmful. All agree with her that the studies often don't separate is ideally they should the different kinds of therapy but that's why the case should be remanded to the lower court for having the opportunity for the state to meet the standard of review. I don't think it should be strict scrutiny but I think even it is the station of the opportunity to present the evidence. Stephanie Erwin said that you haven't addressed at all the question or the claim that conversion therapy is ineffective. Could you address it please? I appreciate Erwin said that he acknowledges that those studies that are being cited by amicus briefs are often including coercive or aversive therapy when they're saying coercion therapy is not effective. I agree that coercive and aversive therapies aren't effective and have often been harmful. So I agree about that but some of the evidence that was introduced including by Colorado's own evidence shows that this type of talk therapy which I think it's kind of pejorative to call this talk therapy, conversion therapy. But they show that this type of talk therapy has had positive benefits for patients has a lot of some of them to go on to live happier lives. The goal that the patient has for themselves and they're not even necessarily trying to convert their own identity. They may very well say, I will be a gay man for the rest of my life. I just want your help changing some of these sexual behaviors. We're not acting on some of these sexual attractions of mine. Can you help me with that? And Colorado's law would prohibit that too. So all I'm saying is there's no evidence that that's harmful. There is evidence that in fact we're taking away an option for clients that would be beneficial for them. And none of the studies that any of the Amicus briefs separate out any more than Colorado has to show harm of this particular type of talk therapy. The only thing the case is about the only thing this child is asking for and that's that's just what I think is important to focus on is a factual matter. The first off case that Irwin is setting through as a California case. It is not a U.S. Supreme Court case. There hasn't been a U.S. Supreme Court case that says that as long as what a state is doing is labeling something as standard of care, it gets to do whatever it wants and has wide discretion about that. And Justice Barrett had some concerns about that. She said, are you saying that if there's a context where there's medical disagreement, a state can just pick a side and say, we've decided that this is the standard of care. And now we're going to shut down the debate or the ability to engage in anything else when there is disagreement about how some particular treatment is affecting people and in Colorado's lawyer struggled to answer questions about that. That's one way that you might think about what's going on here. So the fact that states have a long tradition of setting standards of care that are based on broad practices by the industry and science, I think is true, something that will likely coincide nicely with the first amendment, especially when malpractice laws require proof of causation and harm in order to bring a successful claim that that sort of proof isn't required under this statute. And it is a statute that in advance is prohibiting speech before we've had any sort of showing like that, which is why that prophylactic nature of it raises different first amendment concerns. And the effectiveness point Stephanie says that there is evidence that talk therapy as opposed to course of therapy has allowed some people to have happier lives and she decided earlier that evidence that it could be helpful for the 90% of people who have gender dysphoria issues and then decide to live consistently with their biological sex. I think that for Mr. Barkley is doing the same thing that she was criticizing me for and she or I think she mischaracterizes the Colorado law. The Colorado law doesn't prevent the therapist from discussing sexual orientation or gender identity with patients and can explore it with the patients just in the way that she wants. The law prevents his conversion therapy trying to change a gay or lesbian person sexual orientation trying to change a transgender person's gender identity. That's what the law prohibits and the problem with the studies that she's citing here is they don't separate the kinds of therapy, the therapy that's permitted under Colorado law, which is discussing a person's sexual orientation gender identity is opposed to conversion therapy. And there are studies that show that conversion therapy works because the reality is people sexual orientation and gender identity is very much how they're wired. It's not going to be changed according to the studies. In terms of her point on terrorist stuff, terrorist stuff is widely accepted to the country as it should be. I think all three of us probably read it in our first report's class. What it says is that the therapist has reason to believe that somebody is in danger. The therapist has the duty to warn that person, even though this is speech. Finally, I think she sets up a straw person. I am not taking the position that any standard of cure that's created under any circumstances is automatically permissible. I am saying here though that there should be deference to Colorado in making the determination that conversion therapy is ineffective and harmful. Well, one more beat on the speech conduct distinction, which is so crucial to the case and then we'll just sum up. Stephanie, the upshot of your argument is that the Colorado law is being applied to pure speech in a content based manner and any harm suffered by the patients is directly attributable to the content of child's speech. Is that right? And then maybe sum up the essence of your views about the speech conduct distinction. Yeah, so it sounds like Irwin and I agree that mistrials should be able to do things like help a client decide based on my own goals. I no longer want to engage in this sort of activity. Can you help me with that? Now Irwin used the word explore, which the state relies on a lot too, but that's not just what mistrials would do if a client came to her and said, this is my goal. I'm not like asking you to help me think about five different goals. This is my goal. Will you help me accomplish it? My goal is to change some of my behaviors or my gender expression. I don't want to engage in a social gender transition. Or my goal is to reduce or eliminate or reduce sexual romantic attractions. Will you help me with that? So the problem for Colorado is that that is precisely what their law prohibits. Colorado defines prohibited conversion therapy very broadly to include, quote, efforts to change behaviors or gender expressions or to eliminate or reduce sexual romantic attraction or feeling towards individuals of the same sex. Yeah, I know like my goal isn't to try and get these people to change some core aspect of their sense or cell for their identity, but if they want to do those things, I will help them. And that is precisely what Colorado prohibits, which is why I think by the end of argument, Justice Sotomayor said, well, that settle standing because there's a clear conflict between what the law prohibits and what they want to do. And on your question about this speech conduct distinction, you're right, Jeff, that I think this is going to be critical to the case. And even if we assumed that Tarasov was a binding precedent from the Supreme Court that operated everywhere, still a very different case than this one, where the type of standard of care there, even if we assumed it was pure speech, if we assumed that being forced to warn someone of harm was pure speech. So I think that would easily satisfy a strict scrutiny because they know of bodily harm that is impending to somebody else, and the therapist has been warning about that. And so that's just an example of ways in which there needs to be a link between the speech and harm, precisely this sort of link that is missing in this case. Thanks so much for that or when final thoughts on the speech conduct distinction and its centrality to the case. Sure, I still want to go to one statement that the first part they made says this isn't trying to change a poor aspect of a person. I think that's direct quote of her words. That's exactly what the Colorado law is prohibiting. It's trying to stop therapy that changes somebody's sexual orientation or gender identity. In terms of the speech conduct distinction, my point is that states prescribe standards of care all the time that regulates speech. I would agree that tarisoph needs to scrutiny is also clear that tarisoph is a restriction of speech, but it's not just about tarisoph. I don't understand under professor Barclay where the challengers approach in this case, why informed consent laws aren't unconstitutional. Why the requirement to doctors by great details to patients, but side effects of medication and medical treatments don't become unconstitutional. I think that this is about the ability of the state to define the standard of medical care, and that's what Colorado is doing. Many thanks for that. Well, it's time for closing arguments in this vigorous, civil and illuminating discussion. Stephanie, first one is to you tell we the people listeners why you think the Colorado law violates the First Amendment. On the question that Irwin is raising, why shouldn't matter that we give lesser protection to speech if it is informed consent for a surgery or if it's bound up with providing a prescription. The easy answer to that question is because the Supreme Court has said so. The Supreme Court said in NIFLA that those are special categories of verbal or written communication that we will treat differently. Why has the Supreme Court said so? Because in larger bodies of its precedent about the First Amendment, we have long said that speech that is merely incidental to conduct just doesn't get the same sort of protection as peer speech. And here what we have is peer speech. That's all that's being regulated. In fact, to know whether or not the regulation applies, you have to know what words are coming out of Ms. Trial's mouth. Is she encouraging a gender transition? That would be allowed. Is she helping a client who does not want to move forward with a gender transition and she's helping their goal of a D transition that isn't allowed under the law. Therapists can encourage this sort of behavior. They can't discourage it. That's viewpoint discrimination. I think that's why Justice Kagan was asking and sort of suggesting could we write a narrow decision that is just focused on the viewpoint discrimination at issue in this law. So if we're dealing with peer speech, which we are, if it's not incidental to some other sort of conduct, which it's not the Supreme Court's case law, including in situations like NIFLA makes clear that we're dealing with strict scrutiny. Irwin keeps talking about the need to provide deference. We only provide deference if we're not dealing with peer speech. Scrametti was not dealing with a constitutional right that required scrutiny. And we are here. I think there's good reasons why we are here because this issue, it's easy for it to become politicized. And it's important to look at just what the facts show from the studies that Colorado itself admitted into the record below with the trial court. None of those studies are able to show any connection to harm caused by mistrial speech. In fact, what the expert that Colorado provided below showed that said is that they haven't proven causation. The Supreme Court's case in Brown says that Colorado must they have to prove causation to harm, to satisfy strict scrutiny for this sort of prohibition. Again, ruling for mistrials in this case won't prohibit Colorado or any other state in the country from prohibiting the types of therapy that really are harmful and that really have caused a lot of problems in people's lives. This course of therapy, aversive therapy, the things that we really have in our mind when we use that phrase, um, conversion therapy. Those are not going to be allowed. They will continue to not be allowed the modest protection that the Supreme Court is likely going to provide for mistrials will be just for this sort of talk therapy. But mistrials doesn't want to change core aspects of the identity of her clients. That does not mean that Colorado's law doesn't apply contrary to what everyone was saying because Colorado's law doesn't limit. It's definition of conversion therapy to anything that is changing a core aspect of someone's identity or who they are, it includes. Again, any efforts to change behaviors or gender expression or eliminate or reduce sexual or romantic attraction. Colorado was trying to run away from that before the Supreme Court, Justice Gorsuch pointed out that they hadn't even dignified that particular argument that they made with a rum and numeral. They buried in a footnote. They lost twice below with both of the courts below on their standing argument on slightly different grounds, but this was a late breaking argument they made at the Supreme Court. And the first amendment says, we don't actually have to just take a government say so when they say, trust us, we're going to enforce our statute differently from how it reads on the books. The Supreme Court case in Steven says, we don't have to go with government assurances like that. If the text of the law clearly conflicts with the first amendment behavior, that's enough for us to decide the case on the merits as it is here. And I think, as in Mahmoud, because of the admissions Colorado made below and the evidence it itself, it offered to the trial court, the court will likely go on to decide and strict scrutiny and protect Ms. Child's speech. And I think that will be a good thing for clients who, as you pointed out, Jeff, very well may come to be comfortable in the bodies. They were born with up to 90% of individuals who struggle with gender dysphoria due by evidence that the Obama administration has relied on. We should provide more options for those individuals to help them. We shouldn't take options away. Herwin, last word in this great discussion is to you tell we to people listeners why you think the Colorado law does not violate the first amendment. It doesn't violate the first amendment because this is Colorado setting the standards for professional medical care states have always been able to do this. I do think that the juxtaposition with Scrimetti is important because though this case and Scrimetti go to the question of who should be making the judgments with regard to the standard of medical care. Here in the state of Colorado has made the judgment that conversion therapy for gay lesbian and transgender individuals is harmful and ineffective. Scrimetti, Tennessee made the judgment that providing gender-affirming care for transgender youth was harmful. The Supreme Court and Scrimetti stressed the need to defer to the judgment of the political process and the legislature. That's what's being urged here. Now, I agree, of course, verse remarkably that this case involves speech and Scrimetti was about equal protection. But regardless of whether you're talking about one context or the other, the underlying question is still the same. So the legislature be able to make this judgment. What makes this case, I think, a much stronger one for affirming the Colorado law compared to the Scrimetti holding the Tennessee law is that states have always been able to prescribe the standard of medical care, including when it's regulating speech. Nifla versus Basera expressly said that it was not questioning the ability states to set the standard of medical care. Mr. Barkley wants to draw a distinction between when speech is incidental and speech is at the core. When you're talking about informed consent laws or the terraced off case that we were discussing, speech was at the core. So speech here, what is being regulated and the state should be able to do so in the same way that it regulates informed consent laws, the same way that does with the budget terraced off. It's frightening to think if the Supreme Court strikes this law down, how it will limit the ability of states to regulate medical care procedures that involve speech. The final thing that I'd say so much of the hour of our discussion is come down to what does the evidence show. And if that's what this case is about, then it should go back to the lower courts to have the opportunity to develop and evaluate the evidence. It shouldn't be for the Supreme Court at this stage to come to that conclusion. Thank you so much Stephanie Barkley and Erwin Chemerinsky for a vigorous, rigorous and excellent discussion of the First Amendment and the Colorado Law during these challenging times. A First Amendment discussion like this one is always welcome. Stephanie Erwin, thank you so much for joining. Thank you for having us. Thank you so much. This episode was produced by Bill Pollock and Griffin Ritchie. It was engineered by Bill Pollock. Research was provided by Griffin Ritchie, Anna Salvatore, Trey Sullivan, and Tristan Worsham. Friends, I'm thrilled to be launching my new book. The week after next, it's called The Pursuit of Liberty, how Hamilton versus Jefferson ignited the lasting battle over power in America. It's out on October 21st. Please preorder online. If you'd like a signed book plate, please let me know. It's Jay Rosen at constitutioncenter.org. And always remember that the National Constitution Center is a private nonprofit. We rely on your generosity, passion, and engagement for all of our programming. Please consider donating at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.