Amicus Curiae Brief — Kaley Chiles, Petitioner v. Patty Salazar, in Her Official Capacity as Executive Director of the Colorado Department of Regulatory Agencies, et al.

No. 24-539

IN THE

Supreme Court of the United States

————

KALEY CHILES,

v.

Petitioner,

PATTY SALAZAR, IN HER OFFICIAL CAPACITY AS

EXECUTIVE DIRECTOR OF THE COLORADO DEPARTMENT

OF REGULATORY AGENCIES, ET AL.,

Respondents.

————

On Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit

————

BRIEF OF AMICUS CURIAE ASSOCIATION OF

AMERICAN PHYSICIANS AND SURGEONS IN

SUPPORT OF PETITIONER

————

ANDREW L. SCHLAFLY

939 Old Chester Road

Far Hills, NJ 07931

(908) 719-8608

aschlafly@aol.com

Counsel for Amicus Curiae

June 12, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

TABLE OF CONTENTS

Pages

Table of Contents ......................................................... i

Table of Authorities .................................................... ii

Interests of Amicus Curiae .......................................... 1

Summary of Argument ............................................... 1

Argument ..................................................................... 3

I. Colorado Infringes on Free Speech Contrary to

this Court’s Ruling in Kennedy, and Violates

Religious Liberty Too ........................................... 5

II. Colorado’s General Religious Exemption Is

Inadequate, and MCTL Infringes on the Right

to Hear .................................................................. 8

III. The Rational Basis Review Below Is Incorrect

for this Viewpoint Discrimination ..................... 15

Conclusion ................................................................. 18

ii

TABLE OF AUTHORITIES

Pages

Cases

303 Creative LLC v. Elenis, 600 U.S. 570 (2023)...... 18

Animal Legal Def. Fund v. Kelly,

9 F.4th 1219 (10th Cir. 2021) ............................... 17

Ashcroft v. ACLU, 535 U.S. 564 (2002) ..................... 17

Ass’n of Am. Physicians & Surgs. v. Mathews,

423 U.S. 975 (1975) ................................................ 1

Ass’n of Am. Physicians & Surgs. v. Tex. Med. Bd.,

627 F.3d 547 (5th Cir. 2010) .................................. 1

Brown v. Louisiana, 383 U.S. 131 (1966) ................... 5

Castillo v. Secy, Fla. Dep’t of Health,

26 F.4th 1214 (11th Cir. 2022) ........................ 16-17

Chiles v. Salazar,

116 F.4th 1178 (10th Cir. 2024) ......................... 3, 4

Church of Lukumi Babalu Aye v. City of Hialeah,

508 U.S. 520 (1993) ................................................ 9

Cruz v. Beto, 405 U.S. 319 (1972) .............................. 15

District of Columbia v. Heller, 554 U.S. 570 (2008) ... 1

Kennedy v. Bemerton Sch. Dist.,

597 U.S. 507 (2022) ............................................ 5, 6

Kleindienst v. Mandel, 408 U.S. 753 (1972) ............. 15

Lane v. Franks, 573 U.S. 228 (2014) ........................... 6

Mast v. Fillmore Cty., 141 S. Ct. 2430 (2021) ........... 14

Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n,

584 U.S. 617 (2018) ................................................ 9

Murthy v. Missouri, 603 U.S. 43 (2024) .................... 15

Nat’l Inst. of Family & Life Advocates v. Becerra,

585 U.S. 755 (2018) (“NIFLA”)......................... 7, 16

iii

Otto v. City of Boca Raton, 981 F.3d 854

(11th Cir. 2020)................................................. 9, 16

Telescope Media Grp. v. Lucero,

936 F.3d 740 (8th Cir. 2019) ................................ 17

Texas v. Johnson, 491 U.S. 397 (1989)........................ 8

Tingley v. Ferguson, 144 S. Ct. 33 (2023) .................. 7

Tinker v. Des Moines Independent Community

School Dist., 393 U.S. 503 (1969)........................... 6

Torcaso v. Watkins, 367 U.S. 488 (1961) .................. 14

Turner Broadcasting System, Inc. v. FCC,

512 U.S. 622 (1994) ................................................ 7

United States v. Stevens, 559 U.S. 460 (2010) ......... 17

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ................................................ 8

Wollschlaeger v. Governor of Florida,

848 F.3d 1293 (11th Cir. 2017) ............................... 7

Statutes

Colo. Rev. Stat. § 12-245-101(2) .................................. 4

Colo. Rev. Stat. § 12-245-202(3.5) ............................... 3

Colo. Rev. Stat. § 12-245-217(1) ................................ 10

Colo. Rev. Stat. § 12-245-225 ...................................... 4

Other Authorities

Amish America,

https://amishamerica.com/colorado-amish/ ........ 11

Associated Press, “Muslim leader talks about

Islam’s place in Colorado community,”

Coloradan (Aug. 5, 2017)

https://www.coloradoan.com/story/news/

local/colorado/2017/08/06/muslim-leader-talksislams-place-colorado-community/543061001/ .... 11

iv

Kurt Blankschaen, “Including Transgender

Identities in Natural Law,” Ergo an Open

Access Journal of Philosophy 10:18 (2023)

https://doi.org/10.3998/ergo.4648 ........................ 10

Council on American Islamic Relations – Michigan

Amicus Brief in Support of Plaintiff’s Motion

for Temporary Restraining Order in Catholic

Charities of Jackson v. Whitmer,

Case No. 1:24-cv-718, 64 F. Supp. 3d 623

(W.D. Mich. 2025) (ECF No. 25) .......................... 14

The Declaration “Dignitas Infinita” on Human

Dignity (Apr. 2, 2024) (“Declaration”)

https://www.vatican.va/roman_curia/

congregations/cfaith/documents/rc_ddf_doc_

20240402_dignitas-infinita_en.html ................... 13

Daniel Monk, “Muscular Liberalism and the Best

Interests of the Child,” 77 The Cambridge Law

Journal 261-65 (2018) .......................................... 12

“What is conversion therapy and when will it be

banned?” BBC (Sept. 20, 2024)

https://www.bbc.com/news/explainers-56496423 .. 9

1

INTERESTS OF AMICUS CURIAE1

Amicus Association of American Physicians and

Surgeons (“AAPS”) is a national association of

physicians, founded in 1943. AAPS is dedicated to

protecting the patient-physician relationship, and has

been a litigant in this Court and in other appellate

courts. See, e.g., Ass’n of Am. Physicians & Surgs. v.

Mathews, 423 U.S. 975 (1975); Ass’n of Am. Physicians

& Surgs. v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010).

AAPS’s amicus briefs have been cited by justices of

this Court. See, e.g., District of Columbia v. Heller, 554

U.S. 570, 704 (2008) (Breyer, J., dissenting).

As a group of physicians, AAPS has strong

interests in defending and restoring freedom of speech

in the medical profession.

SUMMARY OF ARGUMENT

Physicians, therapists, and other caregivers are

professionals not to be censored and controlled. They

must retain First Amendment freedom of speech

rights after licensure which they properly enjoyed

prior to licensure. They have at least as much freedom

of speech rights as a public high school football coach

whose free speech rights were fully recognized recently

by this Court. Therapists do not have to give up their

free speech rights as a condition for licensure any more

than an attorney abdicates his unfettered right to

1 Pursuant to Rule 37.6, counsel for amicus curiae authored this

brief in whole, no counsel for a party authored this brief in whole

or in part, and no such counsel or a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person or entity – other than this amicus curiae, its

members, and its counsel – contributed monetarily to the

preparation or submission of this brief.

2

communicate with his client, including speech

contrary to what the State may prefer. Viewpoint

discrimination – censorship here – is an infringement

on a licensed professional’s free speech rights just as it

would be for anyone else.

Moreover, Colorado may not constitutionally

censor speech that is central to maintaining good

standing in well-established religions. While the

Colorado law at issue here is facially neutral as to

religion, it infringes on religious beliefs of families who

encounter gender dysphoria in their children. Their

freedom of speech in being allowed to communicate

and hear candid talk therapy to overcome gender

dysphoria, in a manner consistent with their faith, is

infringed by Colorado’s ban on conversion therapy,

which could more accurately be called “gender support

therapy.”

There is no religious exemption in Colorado’s Minor

Conversion Therapy Law (MCTL), and a general

statutory religious exemption is inadequate for most

Coloradans. The general exemption limits this

counseling to when it is performed as part of a

religious ministry, which makes it practically

impossible for a specialist to offer gender support

therapy to religious adherents. The incidence of

gender dysphoria is far less than 10%, such that even

the largest religious congregations in Colorado would

not have sufficient demand to support an in-house

therapist for this. It is akin to asking a church to have

its own in-house fire department service rather than

sharing the costs of that service with the broader

community. Religious adherents have a First

Amendment right of access, for their own religious

needs and goals, to speech such as talk therapy

3

without interference with free market funding of that

service.

The science concerning conversion therapy is

unsettled, which reinforces the command by the First

Amendment to respect freedom of speech to resolve

this in the marketplace of ideas. In contrast with

transgender operations on minors, talk therapy is

reversible and there is no compelling interest by the

State to ban it. Strict scrutiny is the exacting legal

standard that must be applied to all infringements on

the First Amendment, and Colorado cannot possibly

satisfy this level of scrutiny for its content-based

censorship of certain talk therapy. The decision below

should be reversed.

ARGUMENT

The State does not censor what an attorney may

tell a client, and Colorado may not properly censor talk

therapists as to their confidential communications

with their clients. Yet Colorado’s MCTL, as quoted by

the court below, expressly prohibits:

any practice or treatment by licensee, registrant, or

certificate holder that attempts or purports to

change an individual’s sexual orientation or gender

identity, including efforts to change behaviors or

gender expressions or to eliminate or reduce sexual

or romantic attraction or feelings toward

individuals of the same sex.

Chiles v. Salazar, 116 F.4th 1178, 1192 (10th Cir.

2024) (quoting Colo. Rev. Stat. § 12-245-202(3.5)).

Colorado thereby bans counseling to reduce same-sex

attractions, as quoted above, while exempting

“[a]ssistance to a person undergoing gender

transition.” Id.

4

This is an explicit content-based censorship of

speech. It dictates that counseling against someone

adhering to his biological gender is just fine, but

counseling to affirm one’s biological gender is a no-no.

As further quoted by the Tenth Circuit, MCTL imposes

draconian penalties against any therapist who

counsels a minor to abide by his or her own biological

gender:

Violating the MCTL has consequences in

Colorado. Boards overseeing mental health

professionals may “take disciplinary actions or

bring injunctive actions, or both.” Colo. Rev. Stat. §

12-245-101(2). If a mental health professional

violates the MCTL, the statute authorizes the

overseeing board to send the provider a letter of

admonition or concern; deny, revoke, or suspend

the provider’s license; issue a cease-and-desist

order; or impose an administrative fine on the

provider of up to $5,000 per violation. Colo. Rev.

Stat. § 12-245-225.

Chiles v. Salazar, 116 F.4th at 1192. Therapists risk

punishment if a patient no longer wants to change his

gender after therapy.

Amicus AAPS submits three reasons why the

Tenth Circuit decision upholding the MCTL should be

reversed. First, it infringes on free speech contrary to

prior rulings by this Court, and also infringes on

religious liberty. Second, the general exemption for

religious ministries, on which Colorado relies, is

inadequate. Third, the rational basis standard of

review as invoked below to uphold this content-based

censorship is erroneous, and the MCTL cannot survive

the strict scrutiny standard of review that should

apply.

5

I. Colorado Infringes on Free Speech

Contrary to this Court’s Ruling in Kennedy,

and Violates Religious Liberty Too.

Robust freedom of speech is essential to religious

liberty, as this Court recognized in its landmark

decision in Kennedy v. Bremerton Sch. Dist., 597 U.S.

507 (2022). There this Court upheld the free speech

right of a public school football coach to pray in the

middle of the field after games, surrounded by

students. A football coach need not be a religious

minister to pray in a stadium, as Colorado argues that

therapists who offer conversion therapy must be;

moreover, patients disliking conversion therapy can

easily change therapists, in contrast with high school

football players having no choice of coaches.

“[I]n no world may a government entity’s concerns

about phantom constitutional violations justify actual

violations of an individual’s First Amendment rights.”

Id. at 543. All that Colorado can present here are

“phantom” concerns of isolated unproven, and

reversible, harm. Arguments of anecdotal lack of

success in conversion therapy are not a sufficient

justification for Colorado’s sweeping ban on freedom of

speech for this. There is not properly a “heckler’s veto”

such that a few who are opposed to conversion therapy

can properly shut it down and forbid it for everyone

else. See, e.g., Brown v. Louisiana, 383 U.S. 131, 133

n.1 (1966) (rejecting censorship that is the form of a

“heckler's veto”).

Just as teachers and students do not shed their

rights to freedom of speech at the schoolhouse gate, a

therapist does not shed her free speech rights by

obtaining a license. As this Court held in Kennedy with

respect to a public high school football coach:

6

When it comes to Mr. Kennedy’s free speech claim,

our precedents remind us that the First

Amendment’s protections extend to “teachers and

students,” neither of whom “shed their

constitutional rights to freedom of speech or

expression at the schoolhouse gate.”

Kennedy, 597 U.S. at 527 (quoting Tinker v. Des

Moines Independent Community School Dist., 393 U.S.

503, 506 (1969), and citing Lane v. Franks, 573 U.S.

228, 231 (2014)).

The MCTL is as impractical as it is

unconstitutional. It is ambiguous whether it would

impose fines on a licensed therapist for providing

conversion therapy before or after a formal therapy

session with a patient. This is analogous again to the

issue of a football coach praying after a game, which

this Court resolved in favor of the coach’s right to do

so. “Both the Free Exercise and Free Speech Clauses

of the First Amendment protect expressions like Mr.

Kennedy’s,” this Court held. Kennedy, 597 U.S. at 514.

As Justice Thomas pointed out in a prior case from

the State of Washington in which this Court denied the

petition for certiorari:

Under SB 5722, licensed counselors can speak with

minors about gender dysphoria, but only if they

convey the state-approved message of encouraging

minors to explore their gender identities.

Expressing any other message is forbidden—even

if the counselor’s clients ask for help to accept their

biological sex. That is viewpoint-based and contentbased discrimination in its purest form. As a result,

SB 5722 is presumptively unconstitutional, and the

7

state must show that it can survive strict scrutiny

before enforcing it.

… [T]he Ninth Circuit did not offer a single

example of a historical regulation analogous to SB

5722, which targets treatments conducted solely

through speech.

… As we explained, however, speech is not

unprotected merely because it is uttered by

‘professionals.

Tingley v. Ferguson, 144 S. Ct. 33, 34-35 (2023)

(Thomas, J., dissenting from a denial of a petition for

certiorari, inner quotations and brackets omitted).

“[R]egulating the content of professionals’ speech

‘pose[s] the inherent risk that the Government seeks

not to advance a legitimate regulatory goal, but to

suppress unpopular ideas or information.’” Nat’l Inst.

of Family & Life Advocates v. Becerra, 585 U.S. 755,

771 (2018) (“NIFLA”) (quoting Turner Broadcasting

System, Inc. v. FCC, 512 U.S. 622, 641 (1994)). As this

Court continued in NIFLA: “‘Take medicine, for

example. ‘Doctors help patients make deeply personal

decisions, and their candor is crucial.’” NIFLA, 585

U.S. at 771 (quoting Wollschlaeger v. Governor of

Florida, 848 F.3d 1293, 1328 (11th Cir. 2017) (en banc,

W. Pryor, J. concurring). Candor is particularly

important in therapy.

Yet Colorado is suppressing speech that is highly

correlated with religious viewpoints towards gender

dysphoria. As the State of Washington failed to do in

Tingley, Colorado does not and cannot “offer a single

example of a historical regulation analogous to” its

MCTL at issue here. (Pet Br. 8-10)

8

The question presented here is based on the Free

Speech Clause, but freedom of speech and religion are

intertwined here as in other landmark cases. See, e.g.,

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943) (“We think the action of the local authorities in

compelling the flag salute and pledge transcends

constitutional limitations on their power and invades

the sphere of intellect and spirit which it is the purpose

of the First Amendment to our Constitution to reserve

from all official control.”); Texas v. Johnson, 491 U.S.

397, 414 (1989) (“If there is a bedrock principle

underlying the First Amendment, it is that the

government may not prohibit the expression of an idea

simply because society finds the idea itself offensive or

disagreeable.”). MCTL imposes analogous viewpoint

discrimination, intruding on rights of conscience, and

cannot stand.

II. Colorado’s General Religious Exemption Is

Inadequate, and MCTL Infringes on the Right

to Hear.

Conversion therapy, which is more accurately

called “gender support therapy,” is correlated with

religious beliefs, as confirmed by a survey published in

England by the BBC:

About 10% of Christian respondents and 20% of

Muslims [to a UK-wide LGBT Survey in 2018] said

they had undergone or been offered conversion

therapy, compared to 6% of those with no religion.

More than half of those who had received the

therapy said it had been conducted by a faith group,

while a fifth received it from healthcare

professionals.

9

“What is conversion therapy and when will it be

banned?” BBC (Sept. 20, 2024).2

The Eleventh Circuit has likewise noticed a

correlation between this therapy and religious beliefs:

People have intense moral, religious, and spiritual

views about these matters—on all sides. And that

is exactly why the First Amendment does not allow

communities to determine how their neighbors may

be counseled about matters of sexual orientation or

gender.

Otto v. City of Boca Raton, 981 F.3d 854, 871-72 (11th

Cir. 2020).

“Facial neutrality is not determinative” as to

whether there is an unconstitutional infringement on

religious liberty. Church of Lukumi Babalu Aye v. City

of Hialeah, 508 U.S. 520, 534 (1993). Additional factors

“relevant to the assessment of governmental

neutrality include ‘the historical background of the

decision under challenge, the specific series of events

leading to the enactment or official policy in question,

and the legislative or administrative history

….’” Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n,

584 U.S. 617, 639 (2018) (quoting Church of Lukumi

Babalu Aye, 508 U.S. at 540). MCTL is a highly

partisan result of initiatives in Democrat-controlled

states, without any justification in tradition, as nearly

no Republican states have adopted any similar

measures.

The dominant view of the major religions and

philosophers of natural law since antiquity is that

2 https://www.bbc.com/news/explainers-56496423 (viewed May

31, 2025).

10

there are only two genders, as evident at birth. One

defender of transgender rights admits that:

There is a growing consensus within Natural Law

that explains transgender identity as an “embodied

misunderstanding.” The basic line of argument is

that our sexual identity as male or female refers to

our possible reproductive roles of begetting and

conceiving. Since these two possibilities are

determined early on by the presence or absence of

a Y chromosome, our sexual identity is biological

and so cannot be changed or reassigned. Therefore,

any identity claim that is contrary to this biological

reality is a self-misunderstanding.

Kurt Blankschaen, “Including Transgender Identities

in Natural Law,” Ergo an Open Access Journal of

Philosophy 10:18

(2023).3 Professor

Blankschaen

expressed his own disagreement with this natural-law

consensus, and thus his acknowledgement of it is

significant.

The general exemption from MCTL for religious

ministries is inadequate to protect the rights of

therapists and those seeking gender support therapy

for religious purposes. See Colo. Rev. Stat. § 12-245217(1). Churches, synagogues, and mosques in the

United States are typically not large enough to have

their own in-house gender support therapy ministries

for merely one or a few families who may seek this. By

banning gender support therapy except when offered

as part of religious ministries, it is as though Colorado

were to shut down public transportation on days of

worship while allowing religious facilities to provide

their own system of buses and subways. It is not

3 https://doi.org/10.3998/ergo.4648 (viewed May 31, 2025).

11

practical or cost-effective for ministries to develop and

offer these services in-house, as they are only costeffective on a community-wide basis.

For example, while the Amish are a rapidly

growing religion, there are only 1,000 Amish in the

entire vast state of Colorado.4 Statistically, there

would be at most only a few Amish children suffering

from gender dysphoria and in need of gender support

therapy in Colorado. But MCTL completely prohibits

access by the Amish to a secular counselor for this

therapy. No therapist can earn a living by serving

merely a handful of Amish. For other medical care,

Amish go to secular community physicians, and it is

an infringement on their religious liberty to deny them

access to a community physician for gender support

therapy. Catholics, though larger in number than the

Amish in Colorado, do not have a church structure to

provide church-approved therapists as Colorado

argues is allowed. How would the therapists be

approved, and who would issue malpractice insurance

to protect the religious institutions against politically

motivated lawfare? Colorado does not say, because it

is implausible that religious institutions would take on

the risk of lawfare by sponsoring this.

Muslims total about 70,000 in Colorado as

distributed among about 14 mosques, for an average of

about 5,000 adherents per mosque.5 There would be

4 Amish America, https://amishamerica.com/colorado-amish/

(viewed May 26, 2025).

5 Associated Press, “Muslim leader talks about Islam’s place in

Colorado community,” Coloradan (Aug. 5, 2017).

https://www.coloradoan.com/story/news/local/colorado/2017/08/0

6/muslim-leader-talks-islams-place-coloradocommunity/543061001/ (viewed May 26, 2025).

12

merely a few children per mosque who might suffer

from gender dysphoria and seek gender support

therapy. No counselor can earn a living serving such a

small population.

Doctrines in orthodox Jewish, Christian, Muslim

and other religions require adherence to biological

gender determined at the moment of conception, and

access to gender support therapy is necessary for

families devoted to these religions to remain in good

standing consistent with the principles of their faiths.

Some doctrines in orthodox Judaism, for example,

stand against transgenderism as explained in

connection with a custody proceeding in England:

the father was transgender and lived as a woman;

the mother and children were members of an ultraorthodox Jewish Charedi community; the father

had left the community but both parents wanted

the children to remain within it; the community

would not accept transgender identity and the

imposition of contact risked exposing the children

to the harm of being ostracised by their community.

Daniel Monk, “Muscular Liberalism and the Best

Interests of the Child,” 77 The Cambridge Law

Journal 261-65 (2018).

Roman Catholic Church doctrine also stands firmly

against gender transitions:

in recent decades, attempts have been made to

introduce new rights that are neither fully

consistent with those originally defined nor always

acceptable. They have led to instances of ideological

colonization, in which gender theory plays a central

role; the latter is extremely dangerous since it

13

cancels differences in its claim to make everyone

equal.

The Declaration “Dignitas Infinita” on Human Dignity

(Apr. 2, 2024) (“Declaration”).6 “The greatest possible

difference that exists between living beings” is the

“sexual difference” between male and female, this

Declaration about human dignity confirms. Id. “This

foundational difference is not only the greatest

imaginable difference but is also the most beautiful

and most powerful of them. In the male-female couple,

this difference achieves the most marvelous of

reciprocities.” Id. The doctrinal position of Catholic

Church is that “[a]ll attempts to obscure reference to

the ineliminable sexual difference between man and

woman are to be rejected.” Id. (emphasis added).

Islamic beliefs are likewise infringed upon by

Colorado’s MCTL. A similar ban on gender support

therapy in Michigan was strongly opposed in court by

an amicus brief filed on behalf of the Council on

American Islamic Relations – Michigan (CAIR-MI),

with this argument:

Muslims seeking counseling for gender dysphoria

and/or same sex attraction that aligned with their

religious beliefs would be without a place to obtain

such a treatment and alternatively that the

organization itself may be forced to provide

counseling in a manner that was in direct

contradiction to the purpose and faith values of the

organization.

6

https://www.vatican.va/roman_curia/congregations/cfaith/docum

ents/rc_ddf_doc_20240402_dignitas-infinita_en.html (viewed

June 11, 2025).

14

Council on American Islamic Relations – Michigan

Amicus Brief in Support of Plaintiff’s Motion for

Temporary Restraining Order in Catholic Charities of

Jackson v. Whitmer, Case No. 1:24-cv-718, 64 F. Supp.

3d 623 (W.D. Mich. 2025) (ECF No. 25, at p.16).

Thus MCTL directly interferes with the ability of

orthodox Jewish, Catholic, and Muslim families to

abide by their faiths with respect to a child who is

experiencing gender dysphoria. These religions have

large numbers of adherents in the United States, but

the content-based censorship by Colorado should be

invalidated even if its infringement were against only

a tiny minority, such as the Amish referenced above.

As Justice Gorsuch observed, “In this country, neither

the Amish nor anyone else should have to choose

between their farms and their faith.” Mast v. Fillmore

Cty., 141 S. Ct. 2430, 2434 (2021) (Gorsuch, J.,

concurring).

A half-century ago the Supreme Court upheld the

rights of religious minorities in requiring access by a

prisoner having a religion with a small following in the

United States:

If [the prisoner] was a Buddhist and if he was

denied a reasonable opportunity of pursuing his

faith comparable to the opportunity afforded fellow

prisoners who adhere to conventional religious

precepts, then there was palpable discrimination

by the State against the Buddhist religion,

established 600 B. C., long before the Christian

era. The First Amendment, applicable to the States

by reason of the Fourteenth Amendment, Torcaso

v. Watkins, 367 U.S. 488, 492-493, prohibits

government from making a law “prohibiting the

free exercise” of religion. If the allegations of this

15

complaint are assumed to be true, as they must be

on the motion to dismiss, Texas has violated

the First and Fourteenth Amendments.

Cruz v. Beto, 405 U.S. 319, 322 (1972) (the Religious

Freedom Restoration Act of 1993 subsequently

strengthened this right; footnote omitted).

Religious devotees need access to gender support

therapy to remain compliant with their religions.

Infringement on this right of access violates their

religious liberty. At risk in this case is not merely the

right of a therapist to speak as the therapist feels is

most beneficial, but also the right of religious

adherents to hear what they need to remain true to

their religious doctrines.

If Colorado were to ban sermons by clergy, that

would infringe not merely on the clergy but also on the

rights of Coloradans to hear sermons. This is part of

the First Amendment-protected “right to hear,” and a

fundamental aspect of religious freedom. “While we

have recognized a ‘First Amendment right to receive

information and ideas,’ we have identified a cognizable

injury only where the listener has a concrete, specific

connection to the speaker.” Murthy v. Missouri, 603

U.S. 43, 75 (2024) (Barrett, J., quoting Kleindienst v.

Mandel, 408 U.S. 753, 762 (1972)). That “concrete,

specific connection” exists between a patient and his

therapist, and MCTL infringes on this right to hear.

III. The Rational Basis Review Below Is

Incorrect for this Viewpoint Discrimination.

Rational basis review, as invoked below by the

Tenth Circuit and by other lower courts in reviewing

laws similar to MCTL, is plainly incorrect for

assessing this content-based censorship. “This Court’s

16

precedents do not permit governments to impose

content-based restrictions on speech without

persuasive evidence of a long (if heretofore

unrecognized) tradition to that effect.” NIFLA, 585

U.S. at 767 (cleaned up, citations omitted). No such

tradition for this regulation exists.

The rational basis review used once by the

Eleventh Circuit to punish someone who provided

nutritional advice for compensation without a license

is inapposite here. Castillo v. Secy, Fla. Dep’t of

Health, 26 F.4th 1214 (11th Cir. 2022) (cited by Resps.

Br. on Pet. at 3, 17, 18). There “a licensed dietician

filed a complaint against Del Castillo with the Florida

Department of Health, alleging that Del Castillo was

violating the Act by providing nutritionist services

without a license.” Id. at 1217. The State of Florida

investigated and found Del Castillo in violation of a

law requiring a license before providing nutritional

advice for compensation. She was fined $500.00 and

additionally

charged

$254.09

for

“providing

individualized dietary advice in exchange for

compensation in Florida.” Id. (inner quotations

omitted).

The Castillo decision upheld a straightforward

requirement of professional licensure, where the

content of the speech itself was not even being

regulated. Rather, the issue was practicing in a

licensed profession without obtaining a required

license to do so. The Eleventh Circuit had no difficulty

distinguishing its precedent in Otto whereby it

invalidated a ban on conversion therapy similar to the

ban here, because “the Act’s licensing scheme for

dieticians and nutritionists regulated professional

17

conduct and only incidentally burdened Del Castillo’s

speech.” Id. at 1225.

Here, there is no challenge to a licensing scheme,

and MCTL more than “incidentally” burdens

counselors’ speech. Colorado is engaging in viewpoint

discrimination by forbidding counselors from making

politically disfavored statements, such as talking to

help someone align with his own biological gender.

Freedom of speech surely protects what half of our

country (nearly all of the so-called red states) allows,

and none of the categorical exceptions to freedom of

speech, such as laws against obscenity, applies here.

The Tenth Circuit below acknowledged that “as a

general matter, the First Amendment means that

government has no power to restrict expression

because of its message, its ideas, its subject matter, or

its content.” United States v. Stevens, 559 U.S. 460,

468 (2010) (quoting Ashcroft v. ACLU, 535 U.S. 564,

573 (2002)). In other contexts the Tenth Circuit itself

has held that “if a law targets protected speech in a

content-based manner,” then strict scrutiny

applies. Animal Legal Def. Fund v. Kelly, 9 F.4th 1219,

1227 (10th Cir. 2021). The Tenth Circuit held that

even a law prohibiting deception to gain access to a

facility was subject to strict scrutiny. See id. at 1232.

Similarly, the Eighth Circuit held that a law requiring

videographers to make same-sex wedding videos

regulates speech and thus is subject to strict scrutiny.

See Telescope Media Grp. v. Lucero, 936 F.3d 740, 750

(8th Cir. 2019).

Colorado’s MCTL is explicitly based on content.

Counseling to affirm one’s biological gender is

prohibited, while counseling to change such gender is

allowed. The Tenth Circuit erred by not applying strict

18

scrutiny in reviewing the Colorado law.

The holding by this Court in 303 Creative, also

against Colorado, requires invalidation of the MCTL:

[A]s this Court has long held, the opportunity to

think for ourselves and to express those thoughts

freely is among our most cherished liberties and

part of what keeps our Republic strong. Of course,

abiding the Constitution’s commitment to the

freedom of speech means all of us will encounter

ideas we consider unattractive, misguided, or even

hurtful. But tolerance, not coercion, is our Nation’s

answer. The First Amendment envisions the

United States as a rich and complex place where all

persons are free to think and speak as they wish,

not as the government demands. Because Colorado

seeks to deny that promise, the judgment is

Reversed.

303 Creative LLC v. Elenis, 600 U.S. 570, 603 (2023)

(inner quotations and citations omitted). Likewise,

Colorado’s arguments here should be rejected.

CONCLUSION

For the above reasons and those set forth by

Petitioner and the amici in her support, the Court

should reverse the decision below.

Respectfully submitted,

ANDREW L. SCHLAFLY

939 OLD CHESTER ROAD

FAR HILLS, NJ 07931

(908) 719-8608

aschlafly@aol.com

Dated: June 12, 2025

Counsel for Amicus Curiae