The US Supreme Court will hear oral arguments on Tuesday, October 7, in Chiles v. Salazar, a case concerning Colorado’s ban on “conversion therapy”—treatments that seek to change a person’s sexual orientation or gender identity—for minors. A Christian therapist is challenging the law, arguing that it violates her freedom of speech.

This case follows a series of recent First Amendment rulings from the current Supreme Court and highlights the growing tension between the LGBTQ+ rights movement and Christian conservatives.

We’ve compiled a comprehensive explainer of this case, which could have significant implications for the Court’s free speech doctrine. Read on to learn more about the case’s background, the parties involved, and the legal questions before the Supreme Court.

What is the state law at issue here?

Colorado’s Minor Conversion Therapy Law (MCTL) is being challenged on First Amendment grounds. The MCTL, passed in 2019, prohibits licensed mental health professionals from engaging in “conversion therapy” with minors.

Who is challenging the law and why?

Kaley Chiles, a licensed professional counselor based in Colorado Springs, is challenging the MCTL.  Chiles, a Christian, wants to provide therapy to young people who seek to align their sexual orientation and gender identity with a Christian worldview. But the MCTL would prevent her from engaging in this kind of therapy. Chiles argues that this violates her right to free speech.

What is the procedural background of the case?

In 2019, Chiles filed a lawsuit in federal district court, alleging that the law violated her First Amendment rights. She asked the court to block Colorado from enforcing the law against her, in a motion known as a preliminary injunction. The district court denied her request.

Chiles appealed to the U.S. Court of Appeals for the 10th Circuit, which agreed with the district court and upheld its ruling. The 10th Circuit concluded that Colorado’s ban on conversion therapy regulates medical treatment that “incidentally involves speech,” which passes constitutional muster.

Chiles then petitioned the Supreme Court, which agreed to hear her case.

What specific legal issue is the Supreme Court being asked to decide?

The central issue in this case is whether Colorado’s MCTL violates the First Amendment’s guarantee of freedom of speech. To decide this, though, the Court will need to work through a few different layers of constitutional analysis and determine which level of scrutiny to review Colorado’s law under.

A threshold question in this area of law is whether the law actually regulates speech, raising First Amendment concerns, or if it just regulates conduct. Chiles argues that the law regulates her speech, whereas Colorado argues that the law regulates conduct—a specific kind of medical treatment—that only incidentally burdens speech.

If the law only regulates conduct that incidentally burdens speech, the Court would review the law under the “rational basis” test (the approach taken by the 10th Circuit). Rational basis is the least strict form of review and is relatively easy for states to pass.

But if the law regulates speech based on its content and the viewpoint it expresses, the Court would apply a higher level of scrutiny. Under this approach, Colorado would have a much higher bar to pass in proving that the law is constitutional.

What is Chiles’ position?

In her petition to the Court, Chiles maintains that the law directly regulates her speech based on its content and her viewpoint. She argues that the law is content-based because it hinges on the content of what is said in therapy. She also argues that the law discriminates based on viewpoint because it prohibits therapy to support alignment with birth sex, while allowing therapy that supports gender transition.

Because she views the law as content- and viewpoint-based, Chiles argues it must face the most stringent review: strict scrutiny. Chiles contends that the MCTL fails strict scrutiny and is therefore unconstitutional because Colorado cannot show a compelling government interest in maintaining the ban and because the law is not narrowly tailored.

What is the State of Colorado’s position?

In its briefs, Colorado argues that the law only regulates conduct—a specific type of medical treatment. States have historically been allowed to regulate medical treatments to protect their residents’ health and safety. Colorado maintains that there is sufficient evidence that conversion therapy is “unsafe and ineffective,” making prohibition appropriate. Because the law regulates medical treatment and not speech, Colorado argues that rational basis review should apply—a standard it can easily meet.

But, even if the Court decides the law regulates speech, Colorado still believes their law can pass strict scrutiny review. Colorado argues that they have a compelling interest in protecting young people from harmful and ineffective practices and that the law is narrowly tailored to only apply to the extremely specific practice of conversion therapy, while not limiting other communications in therapy around sexual orientation and gender identity.

What could happen at oral argument?

While it is impossible to predict, the Court will likely resist viewing Colorado’s law as only regulating conduct and medical treatment. Considering recent cases on freedom of speech (like Masterpiece Cakeshop and 303 Creative), the Court seems inclined to more broadly recognize and protect speech, especially the speech of religious people whose views are at odds with state laws. This means the Court may skip Colorado’s conduct arguments and focus on what level of scrutiny applies if the law regulates speech.

An older case, National Institute of Family and Life Advocates v. Becerra, referred to as “NIFLA,” will likely come up during oral argument. NIFLA concluded that certain state licensing and notice requirements for crisis pregnancy clinics were likely a content-based regulation of speech that violated the First Amendment and burdened protected speech. The Court could assess how NIFLA, a case about whether medical regulations burden speech, applies to Colorado’s law.

It will also be interesting to see if Skrmetti—the Court’s recent decision upholding a state law that prohibits gender-affirming care for minors—comes up during oral argument. That case was not about speech, but it did show significant deference to state lawmakers regulating medical treatments.