In Chiles v. Salazar (2026), the Supreme Court reversed, 8-1, a lower-court decision allowing Colorado to enforce its law protecting minors from conversion therapy, defined as the use of talk-based psychological techniques to change a client’s sexual orientation or gender identity. The decision’s consequences fall most heavily on LGBTQ youth, but the damage extends more broadly. Chiles is the first time the First Amendment has been used to subject a state’s authority to protect children from harmful therapeutic practice to strict constitutional scrutiny.

By recharacterizing the words of licensed health professionals from speech incidental to the conduct of providing care into viewpoint-based expression, which commands the highest constitutional protection, the Court escalated the standard of review from presumptively constitutional to presumptively unconstitutional. In so doing, it effectively stripped states of much of their power to regulate psychotherapy, threatening a doctrine of state police power over medical practice that traces to the nation’s founding.

Justice Gorsuch, writing for the majority, distinguished between health care delivered only through speech from other forms of health care. In so doing, he recharacterized Colorado’s judgment about the harms of conversion therapy as viewpoint discrimination rather than medical regulation. Because Colorado permitted therapy affirming a client’s sexual orientation or gender identity while prohibiting therapy seeking to change it, the law discriminated based on viewpoint, triggering strict scrutiny: a standard almost no regulation survives in practice. He based the Court’s holding on its prior ruling in NIFLA v. Becerra (2018), which applied strict scrutiny to government-compelled disclosures by a family planning clinic. But, as Justice Jackson points out in her dissent, NIFLA explicitly “draws a different line” and allows states to “reasonably regulate…speech uttered for purposes of providing medical treatment.” As she explained, the Constitution does not disable reasonable regulation of harmful treatment merely because “substandard care comes via speech instead of scalpel.”

While the purpose of Colorado’s law is to protect children, the Court’s decision prioritizes the rights of the therapist. It therefore discounts one of the foundational powers states retained at the founding: the authority, recognized in Jacobson v. Massachusetts (1905), to act on prevailing public health judgment even in the face of scientific disagreement. It also discounts the state’s parens patriae authority. Under Prince v. Massachusetts (1944), that authority extends to shielding children from what the state identifies as harm, even when their parents disagree.

That the decision is also a direct attack on medical expertise becomes evident when read alongside last year’s United States v. Skrmetti (2025), in which the Court allowed Tennessee to prohibit prescription of puberty blockers for minors diagnosed with gender identity disorder, but not for other conditions. In Chiles, by contrast, Colorado could not make the same kind of judgment about evidence that conversion therapy harms minors, even though there is broad medical consensus that conversion therapy of all kinds harms minors. To justify its skepticism of professional consensus in Chiles, the majority invoked Buck v. Bell (1927), the case upholding mandatory sterilization of individuals deemed to be of low intelligence, warning that deference to prevailing professional views “may not always end well.” The asymmetry is stark: in Skrmetti, states may reject the majority view that gender-affirming care is safe and effective. But in Chiles, the same level of medical consensus that conversion therapy harms children is insufficient to justify a preemptive restriction. The variable is not the evidence. It is which outcome the Court prefers.

In neither case did the Court acknowledge the child as a rights-holder whose interests might independently warrant consideration. The radical harm inflicted by Chiles lies not in what the majority decided but in what it left open: no new rules, no principle for distinguishing what survives from what does not. Every standard of care may now be framed as a matter of opinion.

Justice Jackson’s dissent deserves the last word: Chiles “opens a dangerous can of worms. It threatens to impair States’ ability to regulate the provision of medical care in any respect. It extends the Constitution into uncharted territory in an utterly irrational fashion. And it ultimately risks grave harm to Americans’ health and wellbeing.”

For the decision’s particular consequences for LGBTQ youth, see Professor Luke Boso’s companion post at this Hub on the threat to LGBTQ youth.