Colorado passes new conversion therapy ban in attempt to get around Supreme Court block

In March, the nation’s highest court ruled 8-1 that the old law constituted an “egregious assault” on freedom of speech and a form of “viewpoint discrimination” in violation of the First Amendment to the U.S. Constitution. The Court upheld counselor Kaley Chiles’ right to engage in talk therapy with clients, including young people, who seek to reduce or eliminate homosexual inclinations, “change sexual behaviors, or grow in the experience of harmony with their bodies.”

Introduced ahead of that ruling, Colorado’s HB26-1322 would allow former patients to sue for damages based on “expert testimony, scientific literature, or other evidence demonstrating that sexual orientation or gender identity change efforts are capable of causing the type of psychological injury or illness the plaintiff suffers.”

It defines impermissible change efforts as any therapy that “seeks to direct a patient toward a predetermined sexual orientation or gender identity outcome, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of a particular sex or gender, regardless of the sexual orientation or gender identity the patient is directed toward.”

The bill maintains that harms from conversion therapy “often do not manifest until years or decades after the efforts occurred,” as “survivors frequently fail to recognize such treatment as harmful and fail to connect their psychological injuries to the treatment until much later in life or are deterred from coming forward by shame instilled by the treatment itself.” Those claiming to have been harmed could bring suits “at any time without limitation,” while suits brought on behalf of individuals who have died can be brought up to five years after death.

Apparently prepared as a backup in anticipation of the ban being struck down, HB26-1322 could potentially open practitioners to a burden nearly as deterrent by opening the floodgates to broad-ranging and difficult-to-disprove claims.

The bill passed the state Senate 23-12 on May 5 and the state House 41-23 on May 7, and now requires only a signature from Democrat Gov. Jared Polis to become law. Advocates say its final language was crafted specifically to address the justices’ objections.

“The Supreme Court gave specific guidance about how to amend conversion therapy laws to be viewpoint-neutral so that these protections can remain in place, helping to protect youth before they are harmed,” said Shannon Minter, legal director of the National Center for LGBTQ Rights. “Given the urgency of this issue and the danger that conversion therapy poses to youth, Colorado moved swiftly.”

Whether that argument flies with the Supreme Court remains to be seen. While supporters suggest the bill’s language against “predetermined outcomes” means it qualifies as “viewpoint-neutral,” the implication that counselors must be indifferent to such issues, even with patients who are not, is still a prohibition on viewpoints.

Opponents of “conversion” or “reparative” therapy commonly elicit opposition to the practice by invoking fringe, abusive, and long-since-outdated practices such as electric shock and other forms of physically harmful junk science. But in reality, modern treatment consists largely of simple counseling to overcome unwanted homosexual feelings or find acceptance with one’s true sex, the effectiveness of which is backed by studies as well as testimony from those who have benefited.

In recent years, such opposition has become an especially glaring double-standard given left-wing activists’ widespread embrace of not just actively encouraging transgenderism in impressionable, gender-confused children but also subjecting them to potentially irreversible surgical and chemical transition procedures.