Is talk therapy speech or conduct?

This reporting predates the U.S. Supreme Court's March 2026 decision but covers how the case got to the Supreme Court and why it matters.

On October 7, 2025, the U.S. Supreme Court heard oral arguments in Chiles v. Salazar, a pivotal case challenging Colorado’s Minor Conversion Therapy Law (MCTL), which prohibits mental health professionals in the state from engaging in “conversion therapy” with patients under the age of 18. For licensed psychologists and mental health professionals, it was a high-stakes debate: Does the First Amendment protect the content of a therapist’s clinical conversation with a patient, or can states regulate that conversation as a form of professional conduct?

The outcome, expected by June 2026, could profoundly reshape the scope of professional conduct regulation across the United States.

[Related: A new ruling deepens the circuit split in a high-stakes SCOTUS case]

A licensed professional counselor in Colorado initiated a lawsuit in September 2022, arguing that Colorado’s MCTL—enacted in 2019—violates her First Amendment rights to free speech and the free exercise of religion.

Lower courts (the Colorado District Court and the Tenth Circuit Court of Appeals) upheld the law, finding that the law regulates professional conduct—not speech—even though the therapy in question is delivered through conversation. The courts reasoned that the state has the authority to prohibit a specific therapeutic practice deemed harmful, whether spoken or not.

In August, APA, joined by the American Psychiatric Association and 12 other leading health organizations, filed an amicus brief supporting Colorado’s “conversion therapy” ban .

The U.S. Supreme Court agreed to hear the case to resolve a “circuit split”—a disagreement among federal appellate courts on this specific legal question.

• The Third Circuit, Tenth Circuit (in this case) and the Ninth Circuit upheld similar “conversion therapy” bans, viewing the therapy as “professional conduct” subject to regulation.
• The Eleventh Circuit and Sixth Circuit, by contrast, struck down a similar ban, ruling the therapy was “speech” protected by the First Amendment. In December 2025, the Sixth Circuit blocked Michigan’s “conversion therapy” ban. Notably, the ruling came just weeks after the Supreme Court heard oral arguments in Chiles. The decision deepened the circuit split.

APA had submitted amicus briefs in all of the federal appellate court cases to consider this issue, and all the courts except the Eleventh Circuit and Sixth Circuit had agreed with the APA position.

This legal divide was the focus of the Supreme Court’s oral argument: Is talk therapy a form of protected speech, or a regulated form of professional conduct?

The Petitioner’s argument (speech)

The licensed counselor’s (“Petitioner”) attorney, supported by the federal government, argued that because her counseling practice involves “only” talk therapy without medical interventions (like prescribing medication or performing procedures), it is pure speech. Her attorney contended that speech should not lose constitutional protection merely because it is delivered by a licensed professional.

The petitioner’s attorney maintained that the MCTL is an unconstitutional violation of the First Amendment because it is viewpoint-discriminatory—it prohibits counseling aimed at helping a minor reconcile their identity with their biological sex, while allowing therapy that affirms a minor’s LGBTQ+ identity or supports gender transition. This discrepancy, they argued, reveals an attempt by the state to censor moral and religious views and enforce a specific ideology.

Colorado’s argument (conduct)

Colorado’s Solicitor General defended the law by asserting that it regulates professional conduct, not speech. The state asserted that therapy provided by a licensed professional to a patient is a form of medical treatment subject to the standard of care and a fiduciary duty to the patient.

Colorado cited the overwhelming consensus of major medical and psychological organizations (including APA) that “conversion” practices are “ineffective and harmful,” associated with increased rates of depression, anxiety, and suicide attempts. Colorado emphasized that a state cannot lose its power to regulate a harmful practice merely because that treatment is delivered through words.

The Justices’ questions revealed significant concerns about both positions, making the final ruling difficult to predict.

Several Justices questioned whether the MCTL engages in viewpoint discrimination—meaning the law favors one side of an argument while banning the opposite. They pointed out that one therapeutic goal (affirmation) is permitted, while the opposite goal (change) is banned, even if both are delivered through talk therapy. They raised concerns about whether professional standards are being shaped by ideology rather than objective patient safety.

Other Justices explored the distinction between this case and recent rulings like United States v. Skrmetti, which upheld a ban on medical treatments for gender transition in minors. In the Colorado case, the petitioner’s attorney argued the crucial distinction lies in the nature of the service: Skrmetti involved regulatable medical conduct (medication/hormones), whereas the MCTL involves pure speech (talk therapy).

This line of inquiry led directly to a discussion concerning where the line would be drawn: If talk therapy cannot be regulated as professional conduct, it could eliminate the state’s ability to ensure any licensed mental health professional adheres to the standard of care for any harmful talk-based practice.

Some Justices floated the possibility of remanding the case back to the Tenth Circuit. This would mean the Supreme Court would not decide the case outright but would instruct the lower court to re-evaluate using a different constitutional standard.

A remand would be a potential middle path for the Court that seems troubled by weaknesses in both sides’ arguments but potentially reluctant to issue a broad ruling that could dramatically reshape professional regulation or First Amendment doctrine.

The eventual ruling will either reaffirm the historical regulatory power of state licensing boards or dramatically expand the First Amendment protections afforded to professional communications.

If the Supreme Court upholds the ban (rules for the state of Colorado), this would solidify the idea that talk therapy is a regulated treatment—not pure speech—and that psychologists will continue to be subject to state regulations that define acceptable therapeutic practices even when those practices involve “only” speech.

If the Court overturns the ban, laws that ban “conversion therapy” in over 20 states would be jeopardized or overturned. Furthermore, any professional standard that is enforced through a verbal restriction could be challenged as a violation of free speech, potentially creating legal ambiguity regarding ethical guidance, informed consent protocols, and professional malpractice.

Overall, the oral arguments before the Supreme Court revealed complex constitutional and practical tensions in the legal positions advanced by both sides. We’ll share any updates as they become available.