The Supreme Court’s Systemic Failure to Recognize the Rights of Children Is Glaring in the Chiles Decision

In American law, whether judicial or legislative, children are often treated as the backdrop and ignored when decisions are made, even when those decisions directly target them. They are rarely treated as independent actors with fundamental constitutional rights in society. Instead, children’s rights are either subordinated to adults’ rights or disappear into “parental rights” — in essence, the ancient legal doctrine of coverture (termination of independent legal rights upon marriage), as increasingly applied to children. The Supreme Court’s recent decision in Chiles v. Salazar is the latest in a long line of cases where the subordination of children’s rights is on full display.

Colorado Protected Kids, The Court Protected Counselors

Colorado’s law, the Minor Conversion Therapy Law (HB 19-1129) (2019), did exactly what state child protection law is supposed to do when it comes to substandard medical care: it prohibited licensed mental health professionals from using “conversion therapy” to treat minors. To date, Colorado’s position on prohibition is shared by:

• 23 States and the District of Columbia (an additional 4 states and a territory restrict the practice without banning it)
• The American Psychological Association (APA)
• The American Academy of Child and Adolescent Psychiatry
• The American Academy of Pediatrics
• The American Counseling Association (most relevant to plaintiff Kaley Chiles)

…and every other major medical and scientific body in the country, which join in recognizing that “conversion therapy” is ineffective, harmful, and often outright dangerous. In 2020, an expert special report to the United Nations found that such practices are cruel, inhumane, and degrading, and called for a global ban.

Colorado adopted its law in direct response to mounting evidence linking “conversion therapy” to increased depression, anxiety, suicidal ideation, and suicide attempts among young people. At the same time, as counsel for Colorado noted at the Chiles v. Salazar oral argument, no evidence of any benefit of this “therapy” has surfaced at any time in the litigation.

Yet, in an 8-1 decision written by Justice Gorsuch, the Supreme Court ruled that Colorado’s law is presumptively unconstitutional as applied to licensed counselor Kaley Chiles, who uses talk therapy to try to change LGBTQ+ kids. On remand, Colorado must meet strict scrutiny—frequently “strict in theory, fatal in fact”—to successfully defend its law.

Not one justice in the majority spent meaningful time on the rights of the child – or the presence or absence of meaningful consent to such “therapy” on that child’s part. Parental consent to “conversion therapy” doesn’t come close to any kind of voluntariness or full and informed consent by a child. Justice Jackson, the sole dissenter, stood alone in directing her attention to children’s rights in her opinion.

The Standing Gap

Part of this failure is structural. The procedural architecture of American litigation is poorly designed for vindicating children’s rights. When Chiles sued to challenge a law protecting minors from a harmful practice, the children who would be harmed by the law’s repeal were not parties to the case.

Children’s interests got translated into the state’s interest in “protecting public health” and “regulating medical practice” – a legitimate interest under constitutional doctrine, but a diluted one that is weighed against the plaintiff’s rights. And if the plaintiff’s rights are construed as fundamental, the weight of that state interest is relatively inconsequential.

Running further under the surface is another significant problem created by the majority’s chosen framing: the “voluntary” nature of the “conversion therapy” is found only in the implied consent of the parent, not the child as patient. The Court missed an opportunity to probe this question of “consent” and who was meaningfully in a position to give it in these situations, an inquiry that could have exposed and accentuated the very real danger to children.

The majority also missed other important interests weighing against the plaintiff’s rights, including the fundamental interest of children in receiving medical care that protects their health and well-being and the state’s corresponding parens patriae interest in protecting children’s best interests and safety. Ignoring these two important fundamental interests had enormous consequences. The specific and documented harms of “conversion therapy” become little more than abstractions.

The Court never directly weighed the best interests of minors, who are often brought to such an appointment against their will and even full understanding, in avoiding the psychological damage and harm of “conversion therapy.”

“The First Amendment Is No Word Game,” Except When It Is

All three opinions in the case agree that Colorado’s law permits therapists to express one viewpoint on the minority sexual orientation and gender identity of minors (affirmation and acceptance) while forbidding the expression of another viewpoint (that a client’s sexual orientation and/or gender identity should or can change). As Justice Jackson makes clear, this is irrelevant: “a standards-based healthcare scheme cannot function unless its regulators are permitted to choose sides.”

Licensed professionals have the same rights as anyone else in the marketplace of ideas. But Colorado’s law is not aimed at their speech as speech. It targets a “treatment” that the medical community, including the counseling community, has determined causes harm to minors. The fact that the treatment is administered through words rather than instruments is—or should be—constitutionally irrelevant to that inquiry.

The majority’s answer, implicitly, is that the regulatory framing collapses once the entire “treatment” consists of words. At that point, it becomes speech, and speech in this constitutional framework is presumptively protected regardless of the professional context in which it occurs. The therapist’s right to express her viewpoint supersedes the State’s interest in holding her to a standard of care. This is absurd. It completely erases the child being subjected to grave harm.

As Justice Jackson’s dissent noted:

[M]edical providers are bound by the twin duties of beneficence (the obligation to act for the benefit of the patient) and nonmaleficence (the obligation not to harm the patient). No. 24-539, slip op. at 18 (Jackson, J., dissenting).

“Conversion therapy” violates these duties to all people, but particularly minors, who are developmentally vulnerable and prevented by law from selecting their own medical providers and courses of treatment.

What the Medical Record Shows

The record before the Court was unambiguous about the harms of “conversion therapy” when used on young people. Justice Jackson cataloged in detail the evidence that the majority chose to ignore, even though the district and appellate courts below referenced and credited abundant evidence of harm. See, e.g., Chiles v. Salazar, 116 F.4th 1178, 1216-1220 (10th Cir. 2024).

The APA has repeatedly found that documented negative effects on participants include self-reports of anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated family relationships, loss of social support, loss of faith, poor self-image, social isolation, suicidal ideation, self-hatred, and sexual dysfunction. Those are not side effects. They are the consistent pattern.

Survivors of conversion therapy report being more than twice as likely to have attempted suicide. Children, the research shows, experience the shame and stigma more acutely than adults, because of their “increased emotional vulnerability and less developed capacity to cope effectively.” No. 24-539, slip op. at 5 (Jackson, J., dissenting).

Amicus Mathew Shurka, a “conversion therapy” survivor, was not a collateral casualty of a communication dispute. He was a child in the care of a licensed professional whose use of “conversion therapy” caused him serious, documented harm.

The Rights the Court Never Considered

Under the UN Convention on the Rights of the Child, children hold specific rights that the Chiles majority opinion does not mention. Article 8 protects the child’s right to preserve their identity, including their gender identity and sexual orientation, without unlawful interference. Article 19 requires states to take legislative measures to protect children from all forms of physical or mental violence and abuse, including abuse inflicted by those in a position of care. Article 37 prohibits torture and inhuman or degrading treatment: protections that apply not only to state actors but to private individuals as well.

Rather than recognizing the specific harms that conversion therapy inflicts on children, the Supreme Court adopted a legal framework that treats those harms as relevant only insofar as they establish a “compelling state interest” in regulating speech. This is an adult’s rights framework that fails to acknowledge children’s existence or fundamental rights.

 Justice Jackson’s Warning

Justice Jackson, alone in dissent, understands the stakes.

[N]o core principle of our First Amendment jurisprudence leads inexorably to the conclusion that it violates the Constitution for a State to prevent its licensed talk therapists from using speech to harm the minors in their care… The Constitution does not pose a barrier to reasonable regulation of harmful medical treatments just because substandard care comes via speech instead of scalpel. No. 24-539, slip op. at 35.

The implications extend well beyond conversion therapy. Standards-based regulation of speech-delivered medical care—which includes psychiatric treatment, addiction counseling, eating disorder therapy, and countless other contexts—now faces potential strict scrutiny challenges that did not exist before. And where harm is obvious, the only remedy appears to be a malpractice lawsuit ex post. How likely is that to deter harmful talk therapies that do not meet the relevant standard of care?

The state license that patients rely on as a signal of minimum safety has been partially decoupled from the state’s power to set and enforce medical standards. A therapist who harms a patient with words now has a constitutional argument that a therapist who harms a patient with instruments does not.

Children have fundamental rights, deserving of extra respect and protection due to their developmental vulnerability and reliance on adults. They should be able to count on the state to establish basic standards that protect their health and well-being.

The Principle That Keeps Getting Lost

The pattern of ignoring the fundamental rights of minors is disturbingly the same across issues directly affecting children. When their interests enter the legal frame only as a component of the government’s interest or are present only as “covered” by the rights of their parents, they are perpetually vulnerable to being outweighed by the rights of the adults around them.

The state of Colorado did not pass its ban to suppress a viewpoint. Advocacy for “conversion therapy” remains legal under its law. Colorado legislators made this choice because licensed professionals were harming children, the children could not protect themselves, and the law exists—in part—for exactly this purpose.

The Supreme Court’s decision did not directly say that children’s safety doesn’t matter. It didn’t have to, because it simply found that the First Amendment rights of a talk therapist come first. Even when the exercise of those “rights” contravenes the standard of care governing the profession and gravely harms the children the State licenses therapists to serve.

According to Justice Jackson:

[T]o put it bluntly, the Court could be ushering in an era of unprofessional and unsafe medical care administered by effectively unsupervised healthcare providers. A state license used to mean something to the patients who entrust their care to licensed professionals[.] Id. at 33.

The sacred trust of all health care providers is to help, or at least, to do no harm and keep their patients safe. In Chiles v. Salazar, the Supreme Court elevated the First Amendment rights of practitioners above this core principle of patient care. The Court’s choice destroyed the trust that must obtain between a counselor and an LGBTQ+ child who is in need of help and healing but unable to effectively consent.

Civil rights, Constitutional Interpretation, First Amendment, Free Speech, LGBTQ Equality