The Supreme Court has directed a lower court to reconsider Chiles v. Salazar under a stricter constitutional standard

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.

In a previous article, APA reported on the U.S. Supreme Court’s oral arguments in Chiles v. Salazar, the landmark case challenging Colorado’s ban on “conversion therapy” for minors. At the time, the question before the U.S. Supreme Court was whether talk therapy is protected speech under the First Amendment or regulated professional conduct. Just as the mental health and legal community were anticipating and preparing for the Supreme Court’s ruling, the U.S. Court of Appeals for the Sixth Circuit released an unexpected and consequential opinion.

On December 17, 2025, in Catholic Charities of Jackson v. Whitmer (PDF, 332KB) opens in new window (“Whitmer”), the appellate court for the Sixth Circuit reversed a lower court ruling and blocked enforcement of Michigan’s “conversion therapy” ban (PDF, 127KBopens in new window). The decision deepened the very circuit split that led the Supreme Court to take up Chiles v. Salazar and has drawn significant criticism from legal commentators and even from one of the judges on the panel due to the unusual timing.

The Sixth Circuit’s decision came just weeks after the U.S. Supreme Court heard oral arguments in Chiles v. Salazar in October, which presents the same legal question—whether a state ban on “conversion therapy” for minors regulates professional conduct or restricts speech protected by the First Amendment. In almost every comparable situation, when the Supreme Court is already weighing a case (as it is with Chiles v. Salazar—the court is expected to hand down its ruling in June 2026), lower courts wait for their guidance. Rather than wait for that higher court decision, the Sixth Circuit judges chose to issue their own ruling right away.

In a sharp dissent, Judge Rachel Bloomekatz criticized her colleagues, the other judges on the Sixth Circuit panel, for “forging ahead” and “racing to decide” a case the U.S. Supreme Court had already heard. She cited numerous examples of this court and others holding cases in abeyance—essentially putting them on hold—to wait for forthcoming Supreme Court decisions, and concluded: “As the parties agree, the Supreme Court’s reasoning in Chiles will prevail over the opinion our court reaches today and bind us moving forward. I would have waited without wading in.”

Before the Sixth Circuit ruling, most federal courts agreed that talk therapy was “professional conduct” that states could regulate to protect patients from harm. Specifically, the Third, Ninth, and Tenth Circuits had all upheld “conversion therapy” bans as permissible regulations of professional conduct.

The Sixth Circuit, however, has now joined the Eleventh Circuit—which issued a similar ruling in the 2020 case Otto v. City of Boca Raton (“Otto”)—in declaring that talk therapy is pure speech protected by the First Amendment.

The Sixth Circuit’s majority opinion in Whitmer rested on a simple, provocative premise: psychotherapy is “spoken words and nothing more.”

The reasoning in Whitmer rested on several key conclusions:

Talk therapy is speech, not conduct. The court found that the plaintiffs’ services “consist solely of spoken words—what they call ‘talk therapy’” and do not involve drugs, physical procedures, or aversive techniques. When the “putative conduct ‘triggering coverage under the statute consists of communicating a message,’” the court held, the restriction is treated as one on pure speech.

The law discriminates based on viewpoint of the therapist. The court pointed to the fact that Michigan’s law permits “counseling that provides assistance to an individual undergoing a gender transition” while banning counseling “that seeks to change an individual’s sexual orientation or gender identity.” The majority concluded that the law essentially forces one specific point of view—that “sexual orientation is immutable, but gender is not—and prohibit[s] the therapists from advancing any other perspective,” quoting the Eleventh Circuit’s earlier decision in Otto .

Michigan failed strict scrutiny. Because the court classified this case as a restriction on speech rather than medical conduct, it applied “strict scrutiny”—the highest legal review applied to laws. The court found that the state failed to prove a “direct causal link” between purely verbal therapy and the harms that therapy sought to prevent.

APA strongly disputed the Sixth Circuit’s filings. APA, joined by the Michigan Psychological Association (MPA), the National Association of Social Workers (NASW), and the American Association for Marriage and Family Therapy (AAMFT), filed an amicus brief (a “friend of the court” filing submitted by nonparties to provide expertise or context that may aid the court’s decision) in the case in support of Michigan’s ban.

The brief presented the court with the scientific consensus on “conversion therapy”, known in the professional literature as sexual orientation and gender identity change efforts (SOGICE), drawing on APA’s 2009 Task Force Report (PDF, 1.1MB)opens in new window and its 2021 Resolutions on Sexual Orientation Change Efforts (SOCE) and Gender Identity Change Efforts (GICE) (PDF, 67KB)opens in new window. It argued that SOGICE “are dangerous, discredited practices” that are “not supported by credible evidence of effectiveness” and are “associated with psychological and social harm.” The brief also addressed the characterization of talk therapy as ordinary speech, noting that “the suggestion that ‘talk-therapy’ is akin to everyday speech—as opposed to a professional practice carried out by highly trained professionals according to rigorous standards of care—misapprehends the nature of therapeutic intervention.”

The Sixth Circuit here in Whitmer explicitly adopted Otto’s reasoning from the Eleventh Circuit, quoting its viewpoint discrimination analysis directly, and reaching the same legal conclusion: Michigan’s ban on “conversion therapy” is unconstitutional. Both courts determined that because the government was picking a side—permitting speech that supports gender transition while banning speech that doesn’t—the laws violated the First Amendment.

By siding with the Otto decision, the Sixth Circuit’s decision has deepened a “circuit split.” There are now three circuit courts upholding conversion therapy bans, and two striking them down.

For psychologists, the most concerning aspect of this decision is its characterization of psychotherapy as “spoken words and nothing more.” If that characterization takes hold, any state regulation that restricts what a licensed therapist may say in a clinical setting could be challenged as a speech restriction subject to the highest constitutional scrutiny.

As Judge Bloomekatz warned in her dissent, this reasoning “places a cloud over long-established regulatory schemes for medical professionals,” including licensing requirements, confidentiality obligations, conflict-of-interest rules, malpractice standards, and the duty to practice within one’s area of competence. Under this view, even a dentist recommending that healthy teeth be pulled or a lawyer urging a client to commit perjury could insist their statements are protected speech, placing them beyond the reach of professional regulations.

The state’s authority to define and enforce a standard of care for psychotherapy depends on the premise that clinical conversations between a licensed professional and a patient are a form of professional practice, not unregulated personal expression.

As we discussed in our previous update on the Chiles v. Salazar oral arguments, the Supreme Court is currently grappling with these exact tensions. As both parties in Whitmer acknowledged, the Supreme Court’s forthcoming decision in Chiles v. Salazar will be the definitive ruling. If the Supreme Court upholds Colorado’s “conversion therapy” ban in Chiles v. Salazar, the Sixth Circuit’s decision in Whitmer will almost certainly be undone. Because the Supreme Court’s rulings are binding on all lower courts, the Whitmer case would be subject to the Supreme Court’s framework, which would likely result in Michigan’s ban being reinstated. If the Supreme Court strikes the ban down, the Whitmer decision will become one of several precedents in a new constitutional framework for professional regulation of talk therapy.

As explained in this earlier article on the Chiles v. Salazar oral arguments, the Justices’ questioning during oral arguments suggested concerns about both sides’ positions. One notable exchange during oral arguments involved whether Chiles even had standing to bring the case, since Colorado had never enforced the law against her and argued that her therapy might not even violate the statute. A decision is expected by June 2026. APA will continue to monitor the case and provide updates as they become available.