Strict Scrutiny: “SCOTUS Not Cool With Colorado Ban on Conversion Therapy”
March 31, 2026

Episode Overview

In this emergency episode, hosts Leah Litman (joined by co-hosts, likely Melissa Murray or Kate Shaw) and guest Shannon Minter (Legal Director, National Center for LGBTQ Rights) break down the Supreme Court’s 8-1 decision in Chiles v. Salazar. The ruling puts Colorado’s ban on conversion therapy for minors, as applied to “talk therapy” by state-licensed mental health professionals, under strict scrutiny—the most demanding standard of constitutional review. Justice Gorsuch authored the majority opinion, with Justice Jackson alone dissenting. Justice Kagan, joined by Justice Sotomayor, filed a concurrence. The hosts explore why this decision is a serious setback for LGBTQ rights, how the Court’s reasoning departs from past precedent, and what it means for similar laws nationwide.

Key Discussion Points and Insights

1. Quick Case Background — [02:08–03:15]

• The law at issue: Colorado’s statute prohibits state-licensed mental health providers from using therapeutic interventions to change a minor’s sexual orientation or gender identity.
• Importantly, the law is part of Colorado’s professional licensing regime—it doesn’t criminalize conduct outright or send violators to jail.
• The plaintiff argued that banning “talk therapy” discouraging gender identity or orientation amounted to unconstitutional viewpoint discrimination.

2. Supreme Court’s Ruling — [03:15–05:49]

• The Court found that Colorado’s law, as applied to talk therapy, “triggers strict scrutiny”—the highest bar for constitutional laws touching on protected rights.
• “They didn’t strike the law down. They are giving Colorado a chance to go back and see if they can meet [the strict scrutiny] standard.” – Shannon Minter [05:49]
• Eight justices sided with the majority (written by Gorsuch); Jackson dissented; Kagan’s concurrence (joined by Sotomayor) focused on viewpoint discrimination.

3. Majority’s Reasoning — [06:20–08:09]

• Main finding: Regulation of what a therapist says is both content- and viewpoint-based discrimination.
• The majority describes the law as permitting therapists to “affirm” but not to dissuade a child regarding their gender identity or sexual orientation, construing the regulation as punishing one side of a debate.
• Minter and hosts point out this is not what the statute actually does, nor does the word “affirm” appear in it.
• Notable quote on the Court's approach:
  “This is what we call textualism, Shannon. This is textualism. Prime Textualism 2.0. The words, they aren't there, but we're just going to say they're there.” – Co-host [07:27]

4. Problems With the Court’s Framing — [09:11–11:51]

• Minter notes that the law was carefully drafted to be neutral and to avoid viewpoint discrimination. The Court “seized on certain language in the statute and took it out of context.” [06:51]
• The majority ignores the professional context—that talk therapy by licensed providers is not merely speech, but regulated treatment.
• Hosts point out: “Talk therapy matters. It affects people.” – Leah Littman [22:41]
• Minter laments: “The analysis is so crude. It's so crude.” [24:03]

5. Justice Kagan’s Concurrence — [17:54–20:55]

• Kagan agreed strict scrutiny should apply because a hypothetical law banning affirming therapy would be clearly unconstitutional; therefore, this law is too.
• Minter disagrees, arguing Kagan fundamentally misunderstood the statute. “The law is not about, do you affirm a kid being gay or transgender, or do you disaffirm a kid being gay or transgender? It is about, can a therapist bring their own agenda to therapy… It is apples and oranges.” – Shannon Minter [19:54]

6. Implications for Similar Laws Nationwide — [20:55–23:06]

• The ruling affects not only Colorado but twenty-five other states with similar conversion therapy bans.
• Statistically, conversion therapy’s harms are extreme: “Nearly 2/3 of kids who are put into conversion therapy actually attempt suicide.” – Shannon Minter [21:14]
• The Court suggests (in passing) that victims could sue for malpractice after harm is done—but “at that point, cat’s out… the damage is done.” [23:01]

7. Could State Laws Be Redrafted to Survive Scrutiny? — [24:03–25:42]

• Minter thinks it’s possible to narrowly draft viewpoint-neutral laws; Kagan’s concurrence seems to leave room for this.
• However, there’s uncertainty about how the Court’s conservative majority would rule on even such reworded regulations.

8. Jackson’s Dissent and Broader Concerns — [25:42–29:05]

• Jackson’s “superb” dissent warns the ruling destabilizes professional regulation in medicine and therapy, with unpredictable consequences.
• Jackson questions: “Can a state ban psychologists from counseling their clients, you know, to commit suicide? …prohibit someone from telling a patient with an eating disorder you're beautiful but not yes, you're fat?”
• Host draws parallels to Court’s prior upholding of abortion-related “counseling” mandates: “That’s obviously viewpoint discrimination.” [27:07]
• Pattern of asymmetry: the Court allows conservative viewpoint-based regulations (e.g., abortion counseling) while striking down those protecting marginalized groups.

9. Context of Growing Anti-LGBTQ Momentum — [27:52–30:49]

• The episode situates Chiles v. Salazar amid a barrage of recent Court decisions and judicial rhetoric trending against LGBTQ and especially transgender people.
• Recent and pending cases discussed:
  • Mahmoud v. Taylor (opt-outs from LGBT-inclusive education)
  • West Virginia v. BPJ (trans athletes’ participation)
  • Mirabelli v. Banta (forcing teachers to out trans students)
  • “Between this case and that one, it feels like in some ways they are legalizing child abuse of trans kids.” – Host [29:06]
• Minter: “It’s particularly painful that this decision comes on the heels of the [Scrametti] decision, where the court went out of its way to reaffirm that regulating medical practice is an area of traditional state authority…” [27:52]

Notable Quotes & Memorable Moments

• “This is textualism. Prime Textualism 2.0. The words, they aren't there, but we're just going to say they're there.” – Co-host [07:27]
• “Nearly 2/3 of kids who are put into conversion therapy actually attempt suicide.” – Shannon Minter [21:14]
• “Talk therapy matters. It affects people.” – Leah Littman [22:41]
• “At that point… the damage is done.” – Co-host [23:01]
• “The analysis is so crude. It's so crude.” – Shannon Minter [24:03]
• “The law is not about, do you affirm a kid being gay or transgender, or do you disaffirm a kid being gay or transgender? It is about, can a therapist bring their own agenda to therapy and try to direct the outcome, like, have the goal of therapy be to impose a particular sexual orientation or gender identity on a kid?” – Shannon Minter [19:54]
• “Between this case and that one, it feels like in some ways they are legalizing child abuse of trans kids.” – Host [29:06]
• Closing message to parents: “Please do not think that the Supreme Court just said that these practices are safe or effective or appropriate. They did not. They're very harmful. They will do nothing but harm your children and drive a wedge between you and your children at a time when your kids need you the most.” – Shannon Minter [31:04]

Timestamps for Key Segments

• Background and case intro: [02:08–03:15]
• The Court's ruling explained: [03:15–05:49]
• Majority’s rationale and “textualism” critique: [06:20–08:09]
• Dissecting the free speech and viewpoint discrimination analysis: [09:11–11:51]
• Problems of context and professional standards: [17:54–22:09]
• Policy consequences for families and mental health: [21:14–23:06]
• Redrafting and statutory ambiguity: [24:03–25:42]
• Jackson’s dissent and broader precedent: [25:42–29:05]
• Broader context: attacks on LGBTQ rights and pending cases: [27:52–30:49]
• Affirming message to affected families: [31:04–31:32]

Affirming Closing & Call to Action The hosts conclude by acknowledging the heartbreak in the LGBTQ community, reiterating support: “We love you here. Same goes for our gay, lesbian, bisexual listeners and listeners with family or loved ones who are gay, lesbian, or bisexual… Support the Trevor Project if you can.” [30:48]

Shannon Minter stresses that despite the ruling, conversion therapy remains “very harmful. They will do nothing but harm your children and drive a wedge between you and your children at a time when your kids need you the most.” [31:04]

Summary Takeaways This episode offers a sobering, incisive analysis of why the Supreme Court’s approach in Chiles v. Salazar reflects a growing judicial hostility to LGBTQ rights, focusing especially on the dangers posed by treating harmful therapies as protected speech, and the challenge this creates for protecting vulnerable youth moving forward. The hosts urge vigilance, legal creativity in defending such bans, and reaffirm their commitment to LGBTQ families in a fraught climate.