The Invisible Child: How the Supreme Court Erased Children from a Case About Their Own Harm

The SCOTUS decision in Chiles v. Salazar tragically ignores the grave harm to kids from conversion therapy.

During the same week the Supreme Court issued its ruling in Chiles v. Salazar, which in an 8-1 decision sent Colorado’s “conversion therapy” law back to the trial court for review under the most stringent standard, the Court heard Trump v. Barbara, the birthright citizenship case.

The former is a case in which adolescent children are uniquely harmed by the practice at issue, and the latter is a case in which babies are threatened with immense harm if the foundational right of birthright citizenship is stripped away. Children’s lives are at the center of both cases, and the Court needed to see them in Chiles v. Salazar and desperately needs to see them in Trump v. Barbara.

In our respective jobs, both of us have been making these arguments for years, because the pattern is disturbingly consistent: in American law, both judicial or legislative, children are often treated as the backdrop and ignored when decisions are made. They are rarely treated as independent actors with fundamental rights in society, even when the issue at hand is specifically about them. Instead, and with increasing frequency, children’s rights have disappeared into “parental rights” — in essence, the ancient legal doctrine of couverture, now applied to children.

Chiles v. Salazar is the latest and perhaps most glaring example of this failure.

The Case the Court Actually Decided

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 subjecting minors to conversion therapy[1] – practices that the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Academy of Pediatrics, and every other major medical and scientific body in the country have concluded are both ineffective and actively harmful.

The list includes the professional association directly relevant to plaintiff-appellant Kaley Chiles’ practice. See American Counseling Association [ACA] Conversion Therapy Statement (“The ACA opposes the practice of conversion therapy and advocates for the banning of such practices in the United States…there is no credible scientific data to support its effectiveness. Furthermore, extensive research has demonstrated that conversion therapy is a harmful and damaging practice for clients, often resulting in psychological trauma and distress.”) (formal resolution passed 2017); see also ACA statement on Chiles v. Salazar (“The ACA is profoundly disappointed in today’s ruling…the evidence remains clear: conversion therapy is harmful, discredited, and unsupported by science, and its risks to client well-being are well documented.”) (March 31, 2026).

The state adopted the law, as Justice Ketanji Brown Jackson noted in her sole dissent, in direct response to a documented mental health crisis among Colorado teenagers, and to mounting evidence linking these practices to increased depression, anxiety, suicidal ideation, and suicide attempts among young people. At the same time, as counsel for Colorado noted at oral argument, no evidence of its efficacy 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 a licensed counselor, Kaley Chiles, who uses talk therapy.[2] In doing so, the Court - with the sole exception of Justice Jackson - analyzed the dispute under the First Amendment instead of treating it as a matter of States’ power to regulate medical practice to protect patients.[3]

Chiles has First Amendment rights. We all do. That is not in dispute; Chiles is free to make speeches, write papers, and even tell her patients about her opinions. But it is surely wrong to hold that the First Amendment can immunize a licensed professional from practicing in accordance with the standard of care just because the treatment modality is “only words.”

On remand, Colorado must now justify its viewpoint-based restriction at the most demanding level of constitutional review – a level frequently “strict in theory, fatal in fact.”[4] Eight justices agreed on that point, including Justices Kagan and Sotomayor.

What not one justice in the majority spent meaningful time on was the child[5] – or the presence or absence of meaningful consent to such “therapy” on that child’s part.[6] Justice Jackson filed the sole dissent and centered on children in her opinion.

The Standing Gap

Part of this 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.

Their 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 enters the analysis only as a weight on the other side of the scale from the plaintiff’s rights. Running further under the surface is another significant elision: the “voluntary” nature of the “conversion therapy” is buried in the implied consent of the parent. And here, “consent” invisibly struggles to carry a weight that would have crushed it, had it been probed in the argument. Likely because children themselves were not a party, this was a missed opportunity that could have exposed and accentuated the very real danger to children.

Other important interests were missing, 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. Again, both were buried by the unspoken elephant in the room: “parental rights” that increasingly choose for children that which they – and perhaps the State - would never choose for themselves.

Ignoring these two important fundamental interests had enormous consequences. When children appear in litigation only as the state’s interest to regulate medical practice rather than as bearers of their own rights, their specific and documented harms become nothing more than abstractions. The Court afforded Colorado’s interest in licensure and medical practice laws very little weight as against Ms. Chiles’s claimed First Amendment interests.

The Court never directly weighed the best interests of minors, who are often brought to such an appointment against their will, in avoiding the psychological damaged and harm of “conversion therapy.” Those are different inquiries, and the child-centered one is completely missing from the majority opinion. The health and well-being of children were an afterthought, at best.

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

Justice Gorsuch’s opinion holds that Colorado’s law permits therapists to express one viewpoint on minority sexual orientation and gender identity (affirmation and acceptance) while forbidding the expression of another viewpoint (that a client’s sexual orientation and/or gender identity should or can change). Justice Kagan’s concurrence agrees with that characterization, and so does Justice Jackson in her dissent. The viewpoint-based nature of the restriction is uncontested, though Justice Jackson makes clear that it’s also irrelevant: in order to regulate licensed professionals, the law must choose a viewpoint. Chiles v. Salazar, No. 24-539, slip op. at 21 (Jackson, J., dissenting) (“Taking a position as to how those providers should handle a medical issue is the very essence of standard-setting — once again, this kind of viewpoint-based regulation ensures ‘competence, not debate.’ My colleagues’ contrary conclusions are puzzling, for a standards-based healthcare scheme cannot function unless its regulators are permitted to choose sides.”) (cleaned up).

What is contested, and what the majority ignores, is whether the context of licensed medical treatment of a minor changes the constitutional analysis. Justice Jackson argues compellingly that it does — not because licensed professionals have fewer First Amendment rights than anyone else in the public square, but because the regulation is not aimed at their speech as speech. It is aimed at 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, she argues, constitutionally irrelevant to that inquiry.

The majority calls this a “word game.” But consider the analogy from another direction. If an oncologist prescribed an intervention for cancer that had no supporting evidence in the peer-reviewed literature and that victims consistently described as traumatic and damaging, we would not primarily analyze the problem as a First Amendment question. We would say the oncologist had departed from the standard of care, and the state had every authority to sanction that departure. The medium of the treatment — whether it involved medications, procedures, or spoken recommendations — would not change the analysis. The question would be whether it harmed the patient because it violated agreed upon standards of practice and medical care.

The majority’s answer, implicitly, is that this 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, not least because it completely erases is the child, who is 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. Claiming that minors themselves come to “conversion therapy” voluntarily is the real word game in this case.

What the Medical Record Shows

The record before the Court was not ambiguous about what conversion therapy does to 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 at 1216-1220.

The APA 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.”[7]

One amicus before the Court, Mathew Shurka, described being told as a child that his sexual orientation was a disorder, that he could never live a happy life unless he was “cured,” and that his mother was the source of his condition — leading his therapist to instruct him to cut off contact with her for three years. He experienced worsening isolation, deepening depression, and suicidal ideation. He was not a collateral casualty of a communication dispute. He was a child in the care of a licensed professional whose adoption of “conversion therapy” caused him serious, documented harm.

The UN Special Rapporteur on Torture formally classified conversion therapy as a form of torture in 2016. That classification was not based on the aversive physical methods of an earlier era. It was based on what these practices, including talk therapy, do to the people (predominantly children) subjected to them.[8]

The Rights the Court Never Considered

Noam Peleg, in a rigorous 2024 analysis of conversion therapy through a children’s rights framework, makes an observation that should be the starting point of any serious legal analysis of these cases: children are almost always cited as the victims justifying restrictions on adult conduct, but their own rights are rarely the analytical center of the discussion. They are the reason to limit the therapist’s speech because they are rights-bearing individuals with independent claims against being subjected to harmful treatment.

Under the UN Convention on the Rights of the Child,[9] 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 rights framework that fails to acknowledge children’s existence or fundamental rights.

Justice Jackson’s Warning

Justice Jackson, alone in dissent, understands what was at stake. Her concerns are both doctrinal and practical. By holding that talk therapy is presumptively speech and therefore insulated from standard-of-care regulation unless the state can satisfy strict scrutiny, the Court is, in her words, “bless[ing] a risk of therapeutic harm to children[.]” No. 24-539, slip op. at 33 (Jackson, J., dissenting).

Justice Jackson adds:

[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. Id. 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 today. For example, can a medical practitioner suggest “bleach” to treat autism without ramifications to them, as long as they are only saying it out loud?

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.

As Justice Jackson points out:

The majority finds, at bottom, that Colorado likely cannot legislate to protect the children of its State if, by doing so, it happens to keep state-licensed healthcare providers from saying what they want to say to minors. Id.

Children have fundamental rights, deserving of extra respect and protection due to their developmental vulnerability and reliance on adults, and should be able to count on the state to establish basic standards that protect their health and well-being. The Supreme Court’s decision in Chiles v. Salazar threatens the safety that our children need and deserve, and to which they are entitled.

The Principle That Keeps Getting Lost

Whether it is a therapist’s office in Colorado, a maternity ward implicated by a birthright citizenship ruling, or an abusive parent that can claim “parental rights” to keep the state from protecting children – the pattern is disturbingly the same. When children’s interests enter the legal frame only as 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 conversion therapy ban to suppress Ms. Chiles’s viewpoint. 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 her profession and gravely harms the children that the State has licensed her 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 a SOGI-minority child in need of help and healing but unable to effectively consent. We endorse Justice Jackson’s dissent and pledge to continue our fight for the inherent human rights of all children.

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ENDNOTES

[1] Below, the Tenth Circuit enunciated the definition of “conversion therapy” provided by the Colorado Mental Health Practice Act, the statute at issue (of note, the Supreme Court’s opinion did not provide a definition): “‘Conversion therapy’ is defined in the MCTL as ‘any practice or treatment by licensee, registrant, or certificate holder that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings towards individuals of the same sex… ‘Conversion therapy’ does not include practices or treatments that provide…[a]cceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as the counseling does not seek to change sexual orientation or gender identity; or…[a]ssistance to a person undergoing gender transition.’ Colo. Rev. Stat. Sec. 12-245-202(3.5).” Chiles v. Salazar, 116 F.4th 1178, 1192 (10th Cir. 2024).

[2] The Supreme Court found that the trial and appellate courts below had rejected Ms. Chiles’ First Amendment claims under the wrong standard of review. Those courts used rational review, which allows states to legislate as long as their edicts have a rational basis and accord with a reasonable state interest. In contrast, the Supreme Court ruled that on remand, the trial court must apply strict scrutiny to Colorado’s law, meaning that Colorado’s law is presumptively unconstitutional unless the State can demonstrate that its law serves a compelling interest and is narrowly tailored using the least restrictive means. While this is a very difficult standard to meet, the harms of conversion therapy administered to minors are so extreme that Colorado may yet win its case at trial.

[3] As of April 1, 2026, 23 states and the District of Columbia prohibit licensed health care providers from utilizing “conversion therapy” in their practice. An additional four states and one territory restrict this practice without prohibiting it outright. These laws are hardly a minority view among the states, and they represent the consensus position of relevant professional associations.

[4] Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).

[5] Mentions of actual children are scarce outside the dissent, despite the fact they are the target of the challenged statute. The majority opinion mentions “teenagers” once; “minors” four times in the majority, five in the concurrence, and 19 in the dissent; and the word “child” – a word that respects their humanity far more than “minor” - appears only in the dissent (ten times). The words “family” and “parent” occur even less, further enabling the opinion’s elision of consent to hide in plain view. This counting exercise makes its own point about the analysis of parties and interests.

[6] To be clear, since the practice is harmful, it should be prohibited regardless of consent. But the fact that the majority skates right by the question whether minors are being forced into “conversion therapy” against their will just increases the harm done by the ruling. In a particularly egregious mischaracterization of fact, counsel for Chiles stated at oral argument that children are actually being harmed by not having access to “conversion therapy.” No. 24-539, transcript at 97-98; see also id. at 24, 30, passim.

[7] Evidence of the harm done by “conversion therapy” is legion, while clinical research documenting its benefits is nonexistent. Because the Supreme Court heard this case as an appeal from a preliminary injunction, the record is not fully developed; the evidence of harm initially presented should be significantly buttressed on remand. For evidence of harm presented in this record, see, e.g., Chiles, No. 24-539, 1 App. at 155, 253-254 (Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (August 2009)) (APA adopted a Resolution counseling against SOCE (“conversion therapy” in 2009; as of 2009, studies affirmed harm of SOCE and lack of rigorous research on its safety); 1 App. at 67-74 (Declaration of Judith M. Glassgold (Nov. 3, 2022)) (detailing studies demonstrating harms of “conversion therapy” practices). For more extensive evidence of harm of the type likely to be added to the record, see, e.g., Noam Peleg, ‘Conversion Therapy’ and Children’s Rights, in Ilias Trispiotis and Craig Purshouse (eds.), Banning ‘Conversion Therapy’ Legal and Policy Perspectives (Hart 2023) (“[T]he logic behind this prohibition is to protect the patient from abuse, rather than focusing on the administrator of treatment. This approach, unlike the freedom of expression argument, which centers around the provider, focuses on the victim, and in our case the child.”); Nguyen K. Tran et al., Conversion practice recall and mental health symptoms in sexual and gender minority adults in the USA: a cross-sectional study, 11 The Lancet Psychiatry 879 (2024); Human Rights Council, Practices of so-called “conversion therapy”: Report of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity at 17, U.N. Doc. A/HRC/44/53 (July 9, 2020) (”In the light of those realities, subjecting children to practices of “conversion therapy” constitutes illtreatment and may constitute torture, as well as contravene domestic and international laws against child abuse and neglect.”).

[8] M. Williams, Conversion Therapy on LGBTQ+ Children as a Form of Torture and the Rights of the Child in the Face of the United States Constitution’s Free Speech and Religious Free Exercise Clauses, 26 The Journal of Gender, Race & Justice 393 (2023), citing Juan F. Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/HRC/31/57 (Jan. 5, 2016).

[9] Although the United States has signed but not ratified the Convention, its normative framework remains highly relevant. United Nations Convention on the Rights of the Child (CRC), Nov. 20, 1989, 44 U.N.T.S. 25 (entered into force Sept. 2, 1990).