A decision handed down by the U.S. Supreme Court (SCOTUS) this week could spell trouble for a controversial law enacted in Delaware eight years ago.
The case of Chiles v. Salazar dealt with a Colorado law banning so-called “conversion therapy” for anyone under the age of 18. Sometimes called “reparative therapy,” conversion therapy applies to a broad range of practices, treatments, and counseling that aim to change an individual’s sexual orientation, gender identity, or gender expression. Those found to have violated the mandate would have faced professional disciplinary action.
Several major professional organizations have rejected conversion therapy as ineffective and potentially harmful. They maintain that ethical therapeutic practices addressing sexual orientation and gender identity should instead focus on promoting self-acceptance and developing coping skills.
Under the Colorado law, licensed or registered psychologists and therapists could not take any action that attempted to change the sexual orientation or gender identity of a minor. The 2019 statute specifically excluded practices or treatments providing “acceptance, support…and identity exploration and development.”
Licensed therapist Kaley Chiles filed a lawsuit in 2022, alleging that Colorado’s law violated her First Amendment rights by restricting speech during therapy sessions.
In an 8-to-1 decision handed down on Tuesday, the Supreme Court ruled in favor of the plaintiff. In the majority opinion, Associate Justice Neil Gorsuch wrote: “The law distinguishes between two opposed sets of ideas—the one resisting, the other reflecting, the state’s own view of how to speak with minors about sexual orientation and gender identity…[It] draws a line based on the speaker’s opinion or perspective, and thus enables speech on only one side—the state’s preferred side—of an ideologically charged issue.”
Delaware’s conversion therapy law, enacted in 2018, passed the General Assembly on a vote split, largely along party lines, with Democrats overwhelmingly supporting the measure. Senate Bill 65 was signed into law a year before the Colorado measure, which mirrors its forerunner.
State Rep. Rich Collins, R-Millsboro, who was one of 14 House members voting “no” on the bill, applauded the High Court’s decision.
The majority got it right,” Rep. Collins said. “For counseling to truly help people, therapists and clients need to speak openly and honestly. That’s how individuals can fully explore who they are and what they want. When minors are involved, which is the case with both of these laws, the stakes are even higher.”
Rep. Collins stressed that the Court’s decision properly focuses on speech, not on abusive practices.
“The term conversion therapy is broad and includes some discredited methods that were physically coercive and abusive,” he said. “No one who opposed Delaware’s law supported those practices. But the legislation threw out the baby with the bathwater, preventing therapists from expressing views not aligned with those of the bill’s sponsors. Counselors, parents, and clients should be able to work together openly and thoughtfully, guided by compassion and professionalism, not ideology.”
Delaware is one of more than 20 states that have enacted laws banning conversion therapy, and the SCOTUS ruling now casts the future of these mandates into doubt.
While Delaware’s law remains valid for now, it is on shaky legal ground and is vulnerable to a challenge modeled on the Chiles v. Salazar decision.
