Can a conversation be a crime? That’s the question at the heart of Chiles v. Salazar, a case the U.S. Supreme Court agreed to hear on March 10. Kaley Chiles, a counselor in Colorado, argues that state law unconstitutionally restricts what she can say in therapy sessions about sexual orientation and gender identity. The law targets so-called “conversion therapy,” banning any attempt to change a person’s orientation, identity, or expression. But Chiles contends the state isn’t just regulating conduct—it’s censoring speech.
The heart of the argument, as I understand it from the point of view of the therapist—I am a practicing clinical psychologist—is that despite the law’s attempt to define what is and is not conversion therapy, the boundary line is rather blurred. In such cases and in every therapy case, a patient is free to say whatever he or she wants, focus on and explore anything, precisely because the nature of self-reflection requires that there be no thought restrictions and, therefore, no verbal restriction on what a patient can and cannot say.
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The issue becomes more complex when considering a therapist’s thoughts and speech—broadly defined as those of any licensed professional providing clinical services. States regulate such professionals by setting reasonable and just boundaries, requiring them to complete structured education, demonstrate knowledge of laws and regulations, and obtain licensure. The intent behind these regulations is to protect the public from unqualified or unethical practitioners.
The therapist’s speech, therefore, becomes part of the professional conduct. Or does it? This is the question that the U.S. Supreme Court has agreed to hear later this year, reasoning that the Tenth Circuit, in upholding the ban, “deepened a circuit split between the Eleventh and Third Circuits, which do not treat counseling conversations as conduct, and the Ninth Circuit, which does.”
The blurred boundary between speech and conduct leads to the blurred boundary between thought and speech. The variety of cases that one encounters in clinical practice is large. In cases of same-sex attraction, a patient may or may not want that matter discussed and may or may not seek help about it or about something else. But what happens when a patient, even if initially seeking therapy for another issue, realizes they want to explore their sexual orientation? What if they don’t wish to take it at face value but instead want to understand it in a more nuanced way? And further still, what if the patient wishes to challenge the status quo and consider change? What, then, is the therapist allowed to do? If we followed the wisdom of academia, the only acceptable response would be to affirm one’s afflictions.
The quest widens in cases involving minors and when matters of gender identity and dysphoria enter the picture. Alongside this are cases of detransitioning, where patients must confront and process their regrets—especially the emotional burden of having undergone irreversible procedures.
Another layer of meaning in the case is freedom of religion, both the counselor’s and the patient’s religious beliefs, which—just as in the continuum between speech and conduct—are not confined to what one thinks but extend to how one lives. This means reasoned conduct and action that upholds the mainstays of one’s beliefs.
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The oral arguments are scheduled to take place this fall. Although this case originates in Colorado, it is likely that the effects of its decision, whichever way it will go, will have reverberations in other states. I hope that it awakens practitioners to think about the larger cultural and scientific context within which we practice our profession. Once again, we are setting up a political and legal clash between the vision of the experts aided by the political identities of state legislatures and the timeless tenets of the U.S. Constitution about freedom, which includes scientific freedom to ask proper questions and pursue the scientific quest where it leads, not where one wants it to go—scientific process, not activism. Otherwise, we would not have learned the COVID-19 lessons when the suppression of scientific free speech led to the disparaging of the reasonable arguments put forth by the authors of the Great Barrington Declaration. In time, this effort turned out to be true, despite the continued efforts to suppress it, harass and ridicule the authors and all those who agreed with them by following the evidence and finding its conclusions credible.
We, the people, and we, the professionals, must learn again and again that freedom is not just a word in a document from the late 18th century. It is a timeless value that does not age and does not change. Paraphrasing Calvin Coolidge, no advance, no progress can be made beyond the meaning of freedom. Any pretense of a higher and better value beyond it is a return to shackles—mental shackles, harder to break than the visible ones.
Image by Bill Chizek on Adobe Stock; Asset ID#: 268052027
