The state of Colorado has made a habit of losing decisively at the Supreme Court of the United States. This term marks the state’s third loss in less than a decade. In all three cases, the Court has held unconstitutional Colorado’s attempts either to compel its citizens to express approval of certain orthodoxies about human identity and sexuality or to forbid them to express any doubts. In its 2018 decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission and its 2023 ruling in 303 Creative LLC v. Elenis, the Court thwarted efforts by Colorado commissioners and judges to coerce a baker and a website designer, respectively, to communicate what they understood to be falsehoods about marriage and human sexuality.

　　Now Colorado has suffered another loss at the Supreme Court for the same cause. In Chiles v. Salazar, the Court held that a therapist has a First Amendment right to converse with her patients about their unwanted sexual attractions and gender confusion. And courts must scrutinize closely a Colorado law that forbids those conversations. The ruling reverses the decisions of two lower federal courts that reviewed Colorado’s law deferentially and refused to enjoin its enforcement.

　　This was an easy case. Eight justices voted to reverse. Only Justice Ketanji Brown Jackson dissented. But the opinions merit examination. Jackson’s dissent and the rhetoric of the law’s defenders reveal a belief system that is inconsistent with fundamental rights and ordered liberty generally. And Colorado’s zeal for those beliefs has not abated over the last decade despite its repeated losses.

　　A Case of Fundamentalist Fervor

　　The Colorado law at issue in Chiles discriminates in favor of speech affirming transgender ideology and against speech that questions it. The law threatens with a fine and loss of professional license any mental health professional who helps their patient “to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” The same law expressly authorizes therapeutic messages of “acceptance, support, and understanding for the facilitation of an individual’s … identity exploration and development” and all acts to affirm and assist “gender transition.”

　　The Colorado legislature and supporters of the censorship statute, including Justice Jackson, refer to it as a ban on “conversion therapy.” That phrase misleads in several ways. It evokes religious conversion, as if those who provide therapy are doing something suspiciously evangelistic rather than practicing within the established guidelines of a respected profession. It suggests coercion, or at least manipulation. And it suggests cruelty. As the Court observed in its opinion, the phrase calls to mind images of electric shock treatments and other “aversive physical interventions.”

　　In short, the therapy that the law targets is portrayed as quack medicine, like ingesting snake oil to resolve arthritis, but more violent. But as the petitioner Kaley Chiles explained, the therapy she provides is simply a conversation about human identity and health. Clients come to Chiles because she helps them feel at peace with the reality of their bodies. Many of them also come because she shares their conviction that their embodied reality, as either male or female, is an aspect of their nature, and that their biological sex is designed by God. So perhaps they come to Chiles looking for peace with God as well. Colorado forbids those conversations.

　　As the Supreme Court observed, Colorado tried to impose on Chiles and her clients its own “state-imposed orthodoxies” by manipulating and controlling her professional speech. As applied to Chiles, Colorado’s statute prohibits only constitutionally-protected speech. The Court observed, “As a talk therapist, all Ms. Chiles does is speak with clients; she does not prescribe medication, use medical devices, or employ any physical methods.” There is no evidence that Chiles is injuring any of her clients. Colorado is only prohibiting her “speech as speech.” And the law clearly regulates the content of her speech, prohibiting her from communicating ideas that Colorado disfavors.

　　The burden that Colorado placed on Chiles’s speech was not incidental to some lawful regulatory objective. The Court observed that Chiles’s speech is not bound up in traditionally criminal activities. Nor is it inherently wrongful, like fraud and defamation. “Nor does Colorado seek to regulate Ms. Chiles’s speech for reasons unrelated to its content,” the majority explained, “like a ban on outdoor fires that happens to sweep in flag burning.” To ban the speech of therapists like Chiles, who view sex as an immutable aspect of human nature, is the point of the law.

　　The Court had no difficulty discerning that this is a content-based speech restriction. And the Court observed that the law discriminates on the basis of therapists’ professional opinions and points of view. For these reasons, the Court directed lower courts to scrutinize the state’s justifications strictly, starting with the presumption that the law is unconstitutional.

　　The phrase “conversion therapy” only makes sense if one accepts the dogma that a patient’s real essence is his felt experience.

　　Justice Jackson dissented not because she thinks the burden on Chiles’s speech serves some compelling state interest but because she views the speech as unsafe and therefore outside the First Amendment’s protection. In her judgment, the Colorado statute expresses a legislative determination that any efforts by therapists to help patients come to peace with their bodies’ sex is “dangerous.” When state legislatures exercise the police powers to regulate dangerous medical procedures, “until today, the First Amendment has not blocked their way.” So Chiles and others like her should expect no First Amendment protection.

　　Nor, according to Jackson, do they deserve any. She invoked the authority favored by progressive social engineers since the advent of eugenics, that sacred text known as “scientific consensus,” to disparage heretics such as Chiles and to reaffirm her own faith in the words of Colorado’s creed. “Conversion therapy is designed to ‘convert’ a person’s sexual orientation or gender identity, so that the person will become heterosexual or cisgender,” she asserted, and that practice is now “discredited” amongst scientists. The state of Colorado and Justice Jackson suppose that Chiles is doing violence to her patients’ true identities. They believe she is attempting to metamorphose her patients into a different state of being. It seems that the Colorado legislature is jealous for the souls of every Coloradan.

　　Jackson and Colorado legislators believe that there is such a thing as “heterosexual or cisgender,” rather than simply male and female. Chiles and her clients may doubt it. And it is not a scientific proposition. It begs questions about the meaning of human embodiment, the good of health, and human identity. Science has no competence to answer those questions. And the state of Colorado has no competence to foreclose them. So what could possibly make the questions so dangerous that the First Amendment does not protect them?

　　Justice Jackson’s dissent in Chiles brings the answer into sharp relief. A fact about Colorado’s public officials, if true, would explain their behavior better than any unifying jurisprudential principle. They seem to suffer from a phobia—a fear that somewhere in Colorado, someone might contemplate, however briefly and contingently, that men and women are not interchangeable, that marriage is not entirely socially constructed, or that a man cannot become a woman in reality. Those contemplations are dangerous not because they cause injuries to patients but because they cast doubt on the belief that some people are cisgendered.

　　The Colorado law is coherent as an expression of a fundamentalist zeal for post-modern ideology. The phrase “conversion therapy” only makes sense if one accepts the dogma that a patient’s real essence is his felt experience. The danger that Justice Jackson and Colorado officials seem to fear is that anyone might doubt this dogma.

　　The Threat to Law

　　Utopian projects of social engineering often traduce fundamental law when their justifications are weak. To carry such projects through, someone must make the law equally weak, gutting fundamental rights and institutions. For example, to make centralized land use planning both plausible and constitutionally possible, it was necessary to weaken constitutional protections for vested property rights. And many social engineering projects empower commissions and administrative agencies at the expense of the centuries-old right of trial by jury, because juries often know obvious truths better than experts.

　　Regulatory adventures in health care are not immune from this tendency. The eugenics programs that the court endorsed in Buck v. Bell infringe the fundamental right not to suffer a battery. It was necessary to sterilize Carrie Buck against her will, without any showing that she had done anything wrong, because medical experts deemed her not too bright. “Three generations of imbeciles are enough,” Justice Holmes explained. So, Buck was not entitled to any more due process than the experts and legislature allowed.

　　As courts have weakened those other rights and institutions of our fundamental law, the religion and speech clauses of the First Amendment have been called upon to secure ever-shrinking domains of ordered liberty from the encroachments of utopian visions. Cultural dissenters, religious communities who want to use their real property to serve their neighbors, and conscientious objectors within the health care professions must plead for some narrow exemption from laws that reflect the elite consensus of the moment.

　　So, the First Amendment bears increasing weight. It may hold up. The Court in Chiles opined that the First Amendment reflects “a judgment that every American possesses an inalienable right to think and speak freely.” That is certainly correct. But as the intransigence of Colorado’s officials shows, some powerful Americans do not share that judgment. Fortunately, most of the justices of the US Supreme Court still do.

　　Nevertheless, that judgment is under increasing pressure. It used to be acceptable for someone struggling with questions about human identity to wonder whether his feelings, rather than his body, had betrayed him. But for Justice Jackson and a new generation of culture-shapers, it is acceptable no longer. The “scientific community” has spoken. Three generations of converted patients are enough.