34 - A Potential Breakthrough in Upcoming Supreme Court Case - Part I

On March 10th, the announcement came of a new case accepted for consideration by the US Supreme Court: Chiles v. Salazar. Kaley Chiles, a licensed professional counselor in Colorado, is petitioning for the right to meet the needs of her clients who have unwanted attractions to the same sex and/or confusion or insecurity about their gender. Colorado is one of over 20 states banning any counselor from using anything other than an “affirmation-only” approach with those under the age of 18.

In “Dr. Jordan Peterson Speaks Out Against Therapy Bans,”[2] we reviewed this exchange between psychologist Dr. Jordan Peterson and host Ben Shapiro:

Peterson: There's no such thing as affrmation therapy.

Shapiro: Right...it's insane. I mean the semantic game that was used in order to say, well, conversion therapy - which was at one time electric, you know, using electric shock to treat homosexuals - and saying that that's the same thing as you have a gender-confused 12-year-old...

Peterson: Look, I had a 14-year-old kid who was a client of mine. And, you know, he was in the mid stages of puberty. He was a pretty creative kid, agreeable kid as well right, and that’s important. So he had a bit of a feminine temperament - that also meant he could be pushed around fairly easily. Well, there was an aggressively gay guy in his school hitting on him, and trying to convince him that he was gay. Well he didn't know, so he wanted to talk to me about it. It's like, well I wasn’t going to tell him - I didn't - what the hell do I know about this kid...

Shapiro: Exactly

Peterson: ...you know? And I wanted to hear what his problems were and how it might be sorted out - what he wanted. And, like, that's what you do in therapy is you help people sort out their problems. Now this idea is, [that] you come to me with an axiomatic claim - whatever it is about your identity - and my job is to rubber stamp it. It's like - that's not - I’m not a therapist then.

Restricting licensed counselors from helping young people sort out their problems prevents therapists from doing their jobs. It also stifles innovation and research and gives pastoral counselors, and others pause when meeting with those who have questions about sexuality and gender. These bans create an unfair environment, “enshrining ideology, not truth, into law.”3

A decade of conflicting rulings by lower courts has led to this case rising to the Supreme Court. In November 2020, the Eleventh Circuit of the US Court of Appeals overturned a ban against counseling minors, impacting Alabama, Georgia, and Florida. R4R covered this in Florida Therapy Ban Overturned.

Speech vs. Conduct

In that case, the debate was over free speech (Amendment I in the Bill of Rights) versus what is considered professional conduct, and therefore liable to restriction by the governing board of licensed counselors. Chiles v. Salazar will be decided based on the same factors.

Cody Barnett, in a piece posted in The Federalist4 explained how a prior court decision divided speech protections into three categories for those in the workforce:

The first case to address the issue,Pickup v. Brown, set the tone by holding that government officials can evade the Free Speech Clause by labeling speech as “conduct.” In Pickup, the Ninth Circuit posited that First Amendment rights exist on a continuum, where “public dialogue” gets robust protection, speech in a professional setting gets some protection, and conduct gets no protection at all. It held that California’s counseling restriction targeted a “treatment,” and
“treatments” are categorically conduct.

From the beginning, there were “serious doubts about whether Pickup was correctly decided.” The Third Circuit, for instance, expressly rejected Pickup’s characterization of counseling as “conduct,” stating that “speech is speech, and it must be analyzed as such for purposes of the First Amendment.” Labeling “certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation.” Nonetheless, the Third Circuit embraced Pickup’s continuum and held that counseling exists in the middle as “professional speech,” subject to dijerent rules than other protected speech.

Barnett goes on to list other cases in which these categorical restrictions on free speech were brought into question. So, Chiles v. Salazar may well decide this matter impacting speech in other professional helds as well as the question of therapy.

In the next part of this series, we will review a statement by one of the standing Supreme Court Justices that sheds light on this case.

[1] Amicus Brief by the Liberty Counsel:https://adaegal.org/wp-content/ uploads/2024/12/chiles-v-salazar-2024-12-13-scotus-amicus-brief-liberty-counsel.pdf
pg 18

[2] R4R, Feb 10, 2022

[3] Amicus Brief by the Liberty Counsel:https://adaegal.org/wp-content/uploads/2024/12/chiles-v-salazar-2024-12-13-scotus-amicus-brief-liberty-counsel.pdf
pg 18

[4] Chiles v. Salazar: Will the Supreme Court Finally Address Professional Speech?,
The Federalist, Nov. 26, 2024