WASHINGTON — The Supreme Court on Tuesday ruled against a Colorado law restricting licensed mental health professionals from performing voluntary talk-based “conversion therapy” to change the sexual orientation or gender identity of minors.

In an 8-1 decision that happened to come on the Transgender Day of Visibility, the high court determined that Colorado’s 2019 law likely trampled on First Amendment protections and ruled in favor of Christian therapist Kaley Chiles.

“We do not doubt that the question ‘how best to help minors’ struggling with issues of gender identity or sexual orientation is presently a subject of ‘fierce public debate,’” Justice Neil Gorsuch wrote for the majority in a 23-page opinion.

“But Colorado’s law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same,” Gorsuch added.

“The First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country,” he went on. “It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth.”

The controversial Colorado law mirrored similar policies on the books in some 20 other states and restricted medical practitioners from performing treatment that “attempts or purports to change an individual’s sexual orientation or gender identity.” 

Proponents have pointed to the onslaught of medical groups, such as the American Medical Association, that have argued conversion therapy is a discredited practice. Gorsuch had countered during oral arguments that scientific understandings change over time, noting that homosexuality in the 1970s was generally seen as a mental health disorder.

Those who violate Colorado’s ban could get penalized up to $5,000 and get their counseling license taken away, though no one has faced those penalties under that law yet. It also includes an exception for those “engaged in the practice of religious ministry.”

Chiles had promptly sued the state to block its enforcement, raising free speech concerns about the ban on her performing talk therapy with the goal of converting an individual’s sexual orientation or gender identity. She claimed that her goal was not to “cure” people of same sex attraction, but rather, to help them achieve their goals. Her attorney had acknowledged that clear-cut medical interventions such as the administration of medicine or electronic shocks could be regulated by the state. 

Colorado defended it, arguing that it was engaged in medical regulation and stressed that it hadn’t been enforced, but the high court signaled skepticism of that defense during oral arguments last October. 

“Colorado authorities had refused to disavow bringing enforcement actions against her,” Gorsuch noted in the majority opinion. 

The ban had drawn split decisions from the lower courts, where Chiles pushed for a preliminary injunction against it. The Denver-based 10th Circuit Court of Appeals sided with the state and found Chiles’ therapy is “undoubtedly … professional conduct,” not free speech.

The Supreme Court’s decision Tuesday reversed the 10th Circuit’s decision and remanded the case back to the lower courts for additional proceedings. 

In her dissent, Jackson blasted the high court’s majority opinion for failing to see the “crucial context” of Colorado’s law. She read her opinion from the bench on Tuesday.

“Many States have now chosen to exercise their police powers to ban ‘conversion therapy’ based on the medical profession’s broad consensus that this medical treatment … is ineffective and harmful,” she wrote in her lone dissent. “No one directly disputes that Colorado has the power to regulate the medical treatments that state-licensed professionals provide to patients.”

“Colorado’s clear aim is enforcement of a standard of care that is indisputably applicable to the State’s licensed healthcare professionals,” she added. “With respect to professional medical speech, healthcare providers do not have autonomy; when it comes to providing treatments for their patients, they are bound by the standard of care and are not generally free to ‘choose the content’ of their message.”

Fellow Democrat-appointed Justice Elena Kagan penned a concurring opinion that Sonia Sotomayor joined to “note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question.”

“The law prevents a therapist from saying she can help a minor change his same-sex orientation, but permits her to say that such a goal is impossible and so she will help him accept his gay identity. Colorado does not dispute that point,” she wrote. “Nor does it dispute that under normal First Amendment principles, that difference constitutes viewpoint discrimination.”

“The ‘difference between viewpoint-based and viewpoint-neutral content discrimination’ in the health-care context could prove ‘decisive,’” she went on. “Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one.”

In a 2018 decision for a case involving crisis pregnancy centers, the Supreme Court found that the government must have a compelling interest to regulate professional speech and only use narrowly tailored laws to do so. 

Kagan’s concurring opinion seemingly laid out a pathway for Colorado to rework its ban on conversion therapy in a way to give it a better shot at withstanding judicial scrutiny. 

Chiles v. Salazar comes on the heels of a string of high-profile LGBTQ-related cases that Colorado has lost before the Supreme Court over recent years, testing the limits of the First Amendment’s free speech protections in situations where it’s pitted against anti-discrimination efforts.

Colorado famously lost a case about a baker’s refusal to make a cake for a gay wedding, and the state’s attempt to force a web designer to make same-sex wedding websites.

The high court is also considering another major LGBTQ case this term, involving other states banning transgender athletes competing in girls’ sports.