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.
Supreme Court briefJun 13, 2025
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No. 24-539
In the
Supreme Court of the United States
KALEY CHILES,
Petitioner,
v.
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 A ppeals for the Tenth Circuit
BRIEF OF SEXUAL ORIENTATION SCHOLARS
IN SUPPORT OF PETITIONERS
Jonathan R. Whitehead
Counsel of Record
Law Offices of
Jonathan R. Whitehead, LLC
229 SE Douglas Street, Suite 210
Lee’s Summit, MO 64063
(816) 398-8305
jon@whiteheadlawllc.com
Counsel for Amici
382366
A
(800) 274-3321 • (800) 359-6859
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii
INTERESTS OF AMICI . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
Colorado’s Ban on Change- Or iented
Counseling Speech Is Not Justified by
Scientific Consensus . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Social Science Data is n o t o r i o u s l y
unreliable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. B i a s e d a n d u n r e p r e s e n t a t i v e
studies drive the harm story . . . . . . . . . . . . 7
C. Studies that have NOT excluded
non-LGB respondents contradict
claims of inefficacy and harm . . . . . . . . . . . 10
II. Sexual Orientation Is Not Immutable and
Fixed—Individuals Retain Agency . . . . . . . . . . 16
A. Leading researchers acknowledge
that sexual orientation can change . . . . . . 16
B. Most non-heterosexual people report
mixed attractions, enabling scope
for agency to pursue alignment with
values and goals . . . . . . . . . . . . . . . . . . . . . . 18
ii
Table of Contents
Page
C. D e n i a l o f h o m o s e x u a l - t o heterosexual change is contradicted
by si mu lt a neous a f f i r mat ion of
heterosexual-to -homosexual and
gender identity change . . . . . . . . . . . . . . . . 21
III. Affirming-Only Therapy Is Not EvidenceBased and Can Also Cause Harm . . . . . . . . . . . 23
A. “Affirming” therapy has not been
demonstrat ed, only assumed by
ideology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. “A f f i r m i n g ” c o u n s e l o r s c a n
misdiagnose or pressure clients . . . . . . . . . 24
IV. V i e w p o i n t - B a s e d S u p p r e s s i o n o f
Counseling Speech Violates the
Free Speech Clause . . . . . . . . . . . . . . . . . . . . . . . 30
A. Colorado’s law singles out disfavored
ideas for suppression . . . . . . . . . . . . . . . . . . 30
B. Colorado’s law targets speech, not
conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
iii
TABLE OF CITED AUTHORITIES
Page
CASES:
Chiles v. Salazar,
116 F.4th 1178 (10th Cir. 2024) . . . . . . . . . . . . . . . . . . 34
Conant v. Walters,
309 F.3d 629 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 31
Gerlich v. Leath,
861 F.3d 697 (8th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 30
Iancu v. Brunetti,
588 U.S. 388 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Matal v. Tam,
582 U.S. 218 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Minn. Voters Alliance v. Mansky,
585 U.S. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
NAACP v. Button,
371 U.S. 415 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Nat’l Inst. of Fam. & Life Advocs. v. Becerra,
585 U.S. 75 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Nat’l Institute for Fam. and Life Advocates v.
Becerra,
138 S.Ct. 2361 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Nat’l Rifle Ass’n v. Vullo,
144 S.Ct. 1316 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iv
Cited Authorities
Page
Otto v. City of Boca Raton,
981 F.3d 854 (11th Cir. 2020) . . . . . . . . . . . . . . . . . . . 31
Reed v. Town of Gilbert,
576 U.S. 155 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Thomas v. Collins,
323 U.S. 516 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Trammel v. United States,
445 U.S. 40 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Va. State Bd. of Pharmacy v.
Va. Citizens Consumer Council,
425 U.S. 748 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Statutes and Other Authorities:
U.S. Const., amend. I . . . . . . . . . 2, 4, 30, 31, 32, 33, 34, 35
Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
American Psychological Association, Resolution on
Sexual Orientation Change Efforts (Feb. 2021),
https://www.apa.org/about/policy/resolutionsexual-orientation-change-efforts.pdf . . . . . 11, 14, 23
Marcia Angell, Drug Companies & Doctors:
A Story of Corruption, 56 N.Y. Rev. Books 8
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
v
Cited Authorities
Page
J. Michael Bailey et al., Sexual Orientation,
Controversy, and Science, 17 Psychol. Sci.
Pub. Int. 45 (2016), https://doi.org/10.1177/
1529100616637616 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A . L e e Be ck st e a d & S u s a n L . Mor r ow,
Mormon Clients’ Experiences of Conversion
Therapy: The Need for a New Treatment
Approach, 32 Couns. Psychol. 651 (2004) . . . . . . . . . 28
A . Lee Beckstead, Cures versus Choices:
Agendas in Sexual Reorientation Therapy,
5 J. Gay & Lesbian Psychotherapy 87 (2002) . . . . . 28
Kristin Bradshaw et al., Sexual Orientation
Change Effor ts Through Psychotherapy
for LGBQ Individuals Affiliated with the
Church of Jesus Christ of Latter-day Saints,
41 J. Sex & Marital Therapy 391 (2015) . . . . . . 12, 13
Ryan C. Briggs, Can We Trust Social Science
Yet?, A st er isk (May 19, 2 0 2 5), https: //
asteriskmag.substack.com/p/can-we-trustsocial-science-yet (last visited May 28, 2025) . . . . . . 5
British Board of Scholars & Imams, Muslim
Council of Scot. & Muslim Council of Wales,
Conversion Therapy: What Should Muslims
Know?, 21 (Mar. 2024) . . . . . . . . . . . . . . . . . . . . . . . . 29
vi
Cited Authorities
Page
Change is Possible | Cothran, Darrow, Sullins |
Dr J Show ep. 136, YouTube (Ruth Inst.,
June 10, 2022), https://w w w.youtube.com/
watch?v=vTkZSh0MMJk&t=1209s (at 20:09) . . . . 27
Susan D. Cochran & Vickie M. Mays, Lifetime
Preval en ce of Suici d e Sympt o m s an d
Affective Disorders Among Men Reporting
Same-Sex Sexual Partners: Results from
NHANES III, 90 Am. J. Pub. Health 573
(2000), https://doi.org/10.2105/AJPH.90.4.573 . . . . . . 8
John P. Dehlin et al., Sexual Orientation Change
Efforts Among Current or Former LDS
Church Members, 62 J. Counseling Psychol.
95 (2015), https://doi.org/10.1037/cou0000011 . . . . . . 12
Lisa M. Diamond & Clifford J. Rosky, Scrutinizing
Im m u t a b i l i t y : R e s e a r c h o n S e x u a l
Orientation and U.S. Legal Advocacy for
Sexual Minorities, 53 J. Sex Res. 364 (2016),
ht t p s: //doi .or g / 10 .10 8 0 / 0 0 2 2 4 4 9 9. 2 016 .
1139665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 17
Lisa M. Diamond & Douglas L. Tolman, APA
Handbook of Sexuality and Psychology
(Am. Psychol. Ass’n 2014) . . . . . . . . . . . . . . . . . . . . . . 15
vii
Cited Authorities
Page
Andrea Ganna et al., Response to Comment
on “Large-Scale GWAS Reveals Insights
into the Genetic Architecture of Same-Sex
Sexual Behavior,” 371 Science eaba5693
(2021), https://doi.org/10.1126/science.aba5693 . . . . 20
Judith M. Glassgold et al., APA Task Force
R e p o r t o n Ap p r o p r i a t e T h e r a p e u t i c
Responses to Sexual Orientation (2009),
https://doi.org/10.13140/RG.2.1.3075.8004 . . . . . . . . 10
Judith M. Glassgold, Research on Sexual
Orientation Change Efforts: A Summary, in
The Case Against Conversion “Therapy”:
Evidence, Ethics and Alternatives 17 (Douglas
C. Haldeman ed., Am. Psychol. Ass’n 2022) . . . . . . 11
Yoel Inbar & Joris Lammers, Political Diversity
in Social and Personality Psychology, 7
Persp. on Psychol. Sci. 496 (2012), https://
doi.org/10.1177/ 1745691612448792 . . . . . . . . . . . . . . . 6
Stanton L. Jones & Mark A. Yarhouse, A
Longitudinal Study of Attempted Religiously
Mediated Sexual Orientation Change, 37 J.
Sex & Marital Therapy 404 (2011), https://
doi.org/10.1080/0092623X.2011.607052 . . . . . . 9, 13, 14
viii
Cited Authorities
Page
Lisette Kuyper, Hanneke Fernee & Saskia
Keuzenkamp, A Comparative Analysis
of a Community and General Sample of
Lesbian, Gay, and Bisexual Individuals,
45 Arch. Sexual Behav. 683 (2016), https://
doi.org/10.1007/s10508-014-0457-1 . . . . . . . . . . . . . . . 9
My LGBT‑Affirming Therapist Said THIS,
YouTube (Ruth Inst., July 12, 2024), https://
www.youtube.com/watch?v=0cT6Tj7opQ4 . . . . . . . 26
M.Q. Ott et al., Stability and Change in SelfReported Sexual Orientation Identity in
Young People: Application of Mobility
Metrics, 40 Arch. Sexual Behav. 519 (2011),
https://doi.org/10.1007/s10508-010-9691-3 . . . . . . . . 17
James Parker, Fact is, You Can Change Your
LGBT Identity, YouTube.com (Ruth Inst.,
Mar. 4, 2024), https://youtu.be/xKcy76l_
V2M?t=2252 (at 37:40) . . . . . . . . . . . . . . . . . . . . . . . . 28
Carolyn Pela & Philip Sutton, Sexual Attraction
Fluidity and Well-Being in Men: A Therapeutic
Outcome Study, 12 J. Hum. Sexuality (2021),
https://www.journalofhumansexuality.com/files/
ugd /ec16 e 9 d 0 70 8 a 0 dc 8 2 e 4 da78 e 0 2 5 8 eb
96dc1467.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ix
Cited Authorities
Page
Christopher H. Rosik, A Wake-Up Call for
the Field of Sexual Orientation Change
Effor ts Research: Comment on Sullins
(2022), 52 Arch. Sexual Behav. 869 (2022),
https://doi.org/10.1007/s10508-022-02481-7 . . . . . . . 10
Ritch C. Savin-Williams, Sexual Orientation:
Categories or Continuum? Commentary on
Bailey et al. (2016), 17 Psychol. Sci. Pub. Int.
3 7 ( 2 0 1 6 ) , h t t p s : / / d o i . o r g / 1 0 . 1 17 7 /
1529100616637618 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ritch C. Savin-Williams & Zhana Vrangalova,
Mostly Heterosexual as a Distinct Sexual
Orientation Group: A Systematic Review
of the Empirical Evidence, 33 Dev. Rev. 58
(Table 1) (2013), https://doi.org /10.1016/
j.dr.2013.01.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
Ariel Shidlo & Michael Schroeder, Changing
Sexual Orientation: A Consumers’ Report,
33 Prof. Psychol.: Res. & Prac. 249 (2002),
https://doi.org/10.1037/0735-7028.33.3.249 . . . . . 11, 12
D. Paul Sullins, What Sexual Orientation Change
Efforts Change: Evidence From a United
States Sample of 72 Exposed Men, 16 Cureus
13 (2024), https://doi.org/10.7759/cureus.68854 . . . . 21
x
Cited Authorities
Page
Danielle Taylor, Same-Sex Couples Are More
Likely to Adopt or Foster Children, U.S.
Census Bureau (Sept. 17, 2020), https://
w w w.census.gov/ library/ stories/2020/09/
fifteen-percent-of-same-sex-couples-havechildren-in-their-household.html . . . . . . . . . . . . . . . 21
The Phrase I Wanted to Hear My Whole
Life Was Actually Devastating to Hear |
Nancy Charles Part 2, YouTube (Ruth Inst.,
July 17, 2024), https://w w w.youtube.com /
watch?v=GrWIe0ld2Nk&t=543s (at 9:03) . . . . . . . .25
John T. W h it a ker, Italy’s Seven Secrets,
SATURDAY EVENING POST, Dec. 23, 1939 . . . . 32
Rogers Wright & Nicholas A. Cummings eds.,
Destructive Trends in Mental Health: The
We l l - In t e n t i o n e d Pa t h t o Ha r m x i v
(Routledge 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1
INTERESTS OF AMICI
Amici Dr. D. Paul Sullins and Dr. Jennifer Roback
Morse are scholars with deep expertise in sociology,
human sexuality, and the ethical responsibilities of
counseling professionals.1 They submit this brief to
help the Court evaluate the scientific, psychological,
and constitutional implications of Colorado’s speech
restrictions in therapeutic settings.
Dr. D. Paul Sullins is a Professor of Sociology
(retired) at The Catholic University of America, President
of the Leo Institute for Social Research and a Senior
Research Associate at the Ruth Institute. Over the
course of his career, Dr. Sullins has authored more
than 150 peer-reviewed studies on topics ranging from
statistical methodology to religion, mental health, and
sexual orientation. His recent work directly examines
sexual orientation change efforts (SOCE), the reliability
of minority stress theory, and the presence of ideological
bias in sexuality research. Dr. Sullins has testified as an
expert witness in cases involving religious discrimination
and mental health ethics, and his insights are grounded in
both empirical rigor and decades of academic experience.
Dr. Jennifer Roback Morse is the founder and
president of the Ruth Institute; a nonprofit organization
focused on promoting lifelong married love, and healing
trauma resulting from family instability, including
1. As required by Supreme Court Rule 37.6, amici state that
no counsel for a party authored this brief in whole or in part, and no
counsel or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than amici
or their counsel made such a monetary contribution.
2
protecting the rights of all people to seek counseling
aligned with their life goals.
A former economics professor at Yale and George
Mason University, Dr. Morse is a seasoned commentator
on marriage, sexuality, and public policy. She has authored
six books on marriage and family related topics. Through
her research and advocacy, she has collaborated closely
with individuals who have experienced harm from
affirming-only therapy models, particularly those whose
trauma, abuse histories, or religious convictions were
dismissed or pathologized. Her work highlights voices
often excluded from mainstream research and public
discourse.
Together, your amici share a commitment to academic
integrity, client-centered counseling, and constitutional
protections for speech and conscience. They appear in
this case to urge the Court not to let disputed science and
professional orthodoxy justify the suppression of speech
between counselors and their clients. At stake is more
than policy, it is the freedom to think, to question, and to
speak openly in pursuit of personal goals and truth.
SUMMARY OF ARGUMENT
Colorado’s ban on change-oriented counseling speech
is based on two assumptions that do not withstand
scrutiny: scientific consensus and professional neutrality.
The law censors only one side of a deeply contested issue:
discussions between counselors and clients that explore
whether, how, or why a person might wish to change
sexual orientation or behavior. This is viewpoint-based
censorship of core protected speech and violates the First
Amendment.
3
First, the claim that all sexual orientation change
efforts (SOCE) are inherently harmful lacks scientific
support. Much of the research used to support such laws is
based on non-representative, ideologically biased samples
and excludes those who report benefit. By contrast,
high-quality longitudinal studies have found no evidence
of harm—and, in some cases, unmistakable evidence of
improvement—for clients who voluntarily pursued change
in alignment with their personal or religious values.
Second, the underlying rationale for banning this
speech—that sexual orientation is innate and immutable—
is also scientifically contested. A substantial body of
research shows that sexual orientation, especially among
youth, is fluid over time. Many individuals experience
mixed sexual attractions and change the way they describe
themselves. Clients who seek to align their behavior or
identity with their deeper convictions are not denying
reality; they are exercising agency.
Third, affirming-only therapy, which Colorado
permits and endorses, is not without risks. There is
no rigorous body of research proving that affirming
therapy consistently improves outcomes or respects
client autonomy. Case studies document situations where
vulnerable individuals were misdiagnosed, pressured,
or harmed by counselors who prioritized ideology
over inquiry. Meanwhile, entire populations—such as
detransitioners or desisters—are systematically excluded
from the research used to justify these laws.
Finally, the Colorado law is a textbook example of
unconstitutional viewpoint discrimination. It permits
speech that affirms sexual minority identities while
banning speech that affirms a client’s desire to pursue
4
change. That is not neutral professional regulation;
it is government-imposed orthodoxy. This Court has
repeatedly rejected such efforts to control what individuals
may say or hear in matters of conscience and identity. The
counseling room should be no exception.
The First Amendment does not permit the state to
silence private conversations merely because one side of
the conversation offends prevailing cultural or political
norms. For that reason, this Court should reaffirm the
principle that viewpoint neutrality is not optional in the
regulation of speech, even in professional contexts.
ARGUMENT
I.
Colorado’s Ban on Change-Oriented Counseling
Speech Is Not Justified by Scientific Consensus
A.
Social Science Data is notoriously unreliable.
Social science is amid a “replication” crisis. Courts
deal with evidence, but the field of social science has
been particularly beset with weak, unrepeatable studies
making precarious claims. While good social science
research can tell us things, there is a systematic bias
toward overstated “effects” and “consensus” well before
the data supports the claims.
In a recent article in Asterisk magazine, an associate
professor at the University of Guelph, Ontario, made a
striking assertion: “[W]ould the world actually improve
if those in power consistently took social science evidence
seriously? It brings me no joy to tell you that I think the
5
answer is usually ‘no.’”2 “The interaction between selection
on significance and low power means that our published
literature (in social science) is often not merely kind of
wrong but wildly wrong.” Id.
Briggs describes the problem of “low statistical power”
studies, which claim to find a “statistically significant”
result, but are not professionally designed to assess the
strength of the effect in highly variable situations. This
can have the effect of “wildly” overstating the claimed
effect. Briggs also cites “selection significance,” the bias
created by only publishing “significant” results, and not
hypotheses that do not produce meaningful results. This
pressures academics to “search” for significant results
and then report only successes. As a result, the literature
is biased toward claims of significance, not toward true
measures. 3
Partisan or commercial interests often unduly
inf luence worse, empirical studies. Addressing the
commercialization of medical research, Dr. Marcia
Angell of Harvard University, longtime editor of the New
England Journal of Medicine, has concluded: “It is simply
no longer possible to believe much of the clinical research
that is published, or to rely on the judgment of trusted
physicians or authoritative medical guidelines.”4
2. Ryan C. Briggs, Can We Trust Social Science Yet?, Asterisk
(May 19, 2025), https://asteriskmag.substack.com/p/can-we-trustsocial-science-yet (last visited May 28, 2025).
3. Id.
4. Marcia Angell, Drug Companies & Doctors: A Story of
Corruption, 56 N.Y. Rev. Books 8 (2009).
6
This is particularly true for clinical psychology, where
disfavored theories have been systematically excluded from
study. A prominent survey of eight hundred psychologists
found that “[i]n decisions ranging from paper reviews
to hiring, many [up to 38% of] social and personality
psychologists said that they would discriminate against
openly conservative colleagues.”5
The APA has been especially prone to jettison
scientific objectivity in favor of ideology. Former APA
President Nicholas Cummings has written: “The APA
has chosen ideology over science,” explaining that since
the mid-1970s “advocacy for scientific and professional
concerns has been usurped by agenda-driven ideologues
who show little regard for either scientific validation or
professional efficacy,” with the result that “topics that
are deemed politically incorrect … are neither published
nor funded.”6
On top of the general issues pressuring social
science literature to overstate findings, one of the most
ideologically charged areas of research is the field of
sexual orientation and gender identity.
5. Yoel Inbar & Joris Lammers, Political Diversity in Social
and Personality Psychology, 7 Persp. on Psychol. Sci. 496, 496-503
(2012), https://doi.org/10.1177/ 1745691612448792.
6. Rogers Wright & Nicholas A. Cummings eds., Destructive
Trends in Mental Health: The Well-Intentioned Path to Harm xiv
(Routledge 2005).
7
B. Biased and unrepresentative studies drive the
harm story.
Most research cited to support SOCE bans relies on
“convenience samples” drawn from gay-oriented media,
events, or websites. These studies exclude individuals
who do not identify as LGBT, including those who report
successful change This introduces elevated levels of bias
and undermines reliability.
Simply put, convenience samples cannot give anyone
a meaningful measure of the general population.
Professor Ritch Savin-Williams, of Cornell University,
has criticized the bias this introduces in the research,
which is then ignored when characterizing the results:
The importance of recruiting a representative
sample of nonheterosexuals, as well as the costs
(i.e., skewed findings and lack of generalizability)
of failing to do so, is usually conceded in
individual studies. Thereafter, however, these
limitations are minimized or summarily
dismissed. Yet it greatly matters how sexual
orientation is defined and where participants
are obtained. For example, a common strategy
for recruiting nonheterosexuals is to mine gay
organizations, websites, conferences, resource
centers, and pride marches, venues most sexual
minorities do not frequent”
(emphasis added).7
7. Ritch C. Savin-Williams, Sexual Orientation: Categories
or Continuum? Commentary on Bailey et al. (2016), 17 Psychol.
Sci. Pub. Int. 37, 39 (2016), https://doi.org/10.1177/1529100616637618.
8
In other words, individuals who frequent these gayaffirmative centers are not representative, even of the
population of self-identified sexual minorities. They may
be the most committed members of this population and so
may be more likely to understate problems and overstate
the advantages of being part of this community. At the
very least, responsible research requires acknowledging
this fact and attempting to correct for it.
The bias of convenience samples of sexual minorities
is not a merely theoretical criticism. Instead, this bias
has been concretely observed in studies where evidence
from convenience samples of self-identified and selfselected gay populations has often reported lower
psychopathology and higher unique stigma compared to
evidence derived from population-representative data that
include sexual minority persons. For example, a study
using the U.S. National Household Survey of Drug Abuse,
a large population-representative dataset, reported a
higher-than-expected risk of major depression among
homosexual men and alcohol abuse among homosexual
women. The authors explained the difference by the
fact that earlier studies “relied on convenience samples
drawn from the visible lesbian and gay community.”8 The
“convenience sample” studies had found “no increased risk
[of psychopathology] in comparison with heterosexuals,”
masking the effects found in the more powerful study.9
8. Susan D. Cochran & Vickie M. Mays, Lifetime Prevalence of
Suicide Symptoms and Affective Disorders Among Men Reporting
Same-Sex Sexual Partners: Results from NHANES III, 90 Am. J.
Pub. Health 573 (2000), https://doi.org/10.2105/AJPH.90.4.573.
9. Id.
9
Likewise, a study that directly compared a general
population sample of LGB persons with “a convenience
sample recruited at LGB venues” in the Netherlands
found that the convenience sample claimed “lower levels of
internalized homonegativity,” and claimed “more negative
social reactions on their LGB status.”10 Once again, the
convenience samples weren’t useful measures of the wider
population.
Convenience samples recruited through LGB
community communications channels are particularly
ill-suited to deciding whether sexual orientation therapy
is efficacious, beneficial, or harmful. Clinical studies have
found that most persons who have experienced substantial
change in same-sex attraction or behavior following SOCE
no longer identify as gay or lesbian, often noting their
explicit “decision to disidentify with a gay identity and
the persons and institutions that support gay identity.”11
Sampling from gay organizations and venues will exclude
almost all such persons—that is, they exclude precisely
the person likely to say SOCE was successful or beneficial.
These studies have a bias toward “success exclusion.”
If we wanted to know about the efficacy or harm of a
sobriety program, we would not recruit from bars. Yet
this is precisely how many studies in sexual orientation
change are conducted.
10. Lisette Kuyper, Hanneke Fernee & Saskia Keuzenkamp,
A Comparative Analysis of a Community and General Sample of
Lesbian, Gay, and Bisexual Individuals, 45 Arch. Sexual Behav.
683 (2016), https://doi.org/10.1007/s10508-014-0457-1.
11. Stanton L. Jones & Mark A. Yarhouse, A Longitudinal
Study of Attempted Religiously Mediated Sexual Orientation
Change, 37 J. Sex & Marital Therapy 404, 423 (2011), https://doi.or
g/10.1080/0092623X.2011.607052.
10
A 2023 review found that eighteen of the twenty major
studies of SOCE since 2010 had made no attempt to include
non-LGBT-identified persons, thus manifesting at least an
implicit success exclusion bias.12
Eight SOCE studies formally screened out non-LGBTidentifying people, enacting an explicit bias against cases
of SOCE success.13
The APA passed a resolution supporting SOCE bans
in 2021. But all the studies cited in support of the claim
that SOCE increases psychological harm or suicide
derived from this group of highly biased studies.14
C.
Studies that have NOT excluded non-LGB
respondents contradict claims of inefficacy
and harm.
When studies take the simple step of including nonLGB respondents, they tend to show some successful
change along the homosexual-to-heterosexual continuum
and strong net psychological benefit.
12. Christopher H. Rosik, A Wake-Up Call for the Field of
Sexual Orientation Change Efforts Research: Comment on Sullins
(2022), 52 Arch. Sexual Behav. 869 (2022), https://doi.org/10.1007/
s10508-022-02481-7.
13. Id. at 870.
14. Judith M. Glassgold et al., APA Task Force Report on
Appropriate Therapeutic Responses to Sexual Orientation (2009),
https://doi.org/10.13140/RG.2.1.3075.8004.
11
Shidlo and Schroeder’s early study15 is often cited as
evidence of harm from sexual reorientation therapy. The
APA’s 2021 Resolution16 calling for a SOCE ban cites it
this way three times; Glassgold’s accompanying review
in The Case Against Conversion Therapy 17 misleadingly
asserts that the study only “found little evidence of change
and documented harm.”18 In fact, Shidlo and Schroeder
recounted that they began their study with a goal of
documenting harm, but “[a]fter the first 20 interviews, we
discovered that some participants reported having been
helped as well as harmed.” 19
Many of the 202 participants interviewed reported both
benefits and harm, in very different amounts depending on
whether they considered their experience to have been a
success or failure (13% of the sample reported successful
change or management of unwanted homosexuality). 20
Not surprisingly, those who reported a “failure” in SOCE
rated 51% of their clinical treatments were harmful and
15. Ariel Shidlo & Michael Schroeder, Changing Sexual
Orientation: A Consumers’ Report, 33 Prof. Psychol.: Res. & Prac.
249 (2002), https://doi.org/10.1037/0735-7028.33.3.249.
16. American Psychological Association, Resolution on Sexual
Orientation Change Efforts (Feb. 2021), https://www.apa.org/about/
policy/resolution-sexual-orientation-change-efforts.pdf.
17. Judith M. Glassgold, Research on Sexual Orientation
Change Efforts: A Summary, in The Case Against Conversion
“Therapy”: Evidence, Ethics and Alternatives 17 (Douglas C.
Haldeman ed., Am. Psychol. Ass’n 2022).
18. Id. at 21-22.
19. Ariel Shidlo & Michael Schroeder, supra note 15 at 251.
20. Id. at 253.
12
48% as at least partially helpful. Whereas those reporting
some “success” felt that 71% of their clinical treatment
courses were helpful only and 29% were at least partially
harmful. 21 Among the group reporting any success, all the
treatments were rated somewhat helpful. No treatments
were rated always harmful. These results contradict the
claim that SOCE is always harmful, despite the way the
APA framed the study in its Resolution.
Two studies by overlapping teams of researchers22
examined distinct aspects of an online survey of 1,612
formerly or currently same-sex-attracted Mormons who
had undergone sexual orientation therapy. The sample
did not formally exclude respondents who identified as
heterosexual, although the survey recruitment process—
primarily through gay-affirmative organizations and
“snowball sampling” 23 —may have suppressed their
proportional participation. Once again, the APA 2021
Resolution’s review cited these studies as evidence that
SOCE is intrinsically harmful, when in fact they showed
the opposite, reporting more benefit than harm from
SOCE. The study by Bradshaw and others24 reported
that their study “documented a broad range of potential
21. Id. at 257.
22. Kristin Bradshaw, et al., Sexual Orientation Change
Efforts Through Psychotherapy for LGBQ Individuals Affiliated
with the Church of Jesus Christ of Latter-day Saints, 41 J. Sex &
Marital Therapy 391 (2015); John P. Dehlin et al., Sexual Orientation
Change Efforts Among Current or Former LDS Church Members, 62
J. Counseling Psychol. 95 (2015), https://doi.org/10.1037/cou0000011.
23. Bradshaw, et al., supra note 22 at 396; Dehlin, et al., supra
note 22 at 98.
24. Id.
13
benefits and harms ancillary to the goal of orientation
change.”
It continued:
Many found therapy to be a helpful, even lifesaving experience. … Of particular interest was
the large number of individuals who reported
decreased levels of depression and anxiety and
improved feelings of self-worth. … As a general
rule, … experiences of harm or iatrogenic
distress were much less frequent than reports
of benefit.” 25
Jones and Yarhouse26 further presented compelling
evidence that sexual reorientation therapy did not induce
psychological harm, in a longitudinal study that followed
fifty-eight sexual reorientation therapy participants for
six years of annual assessment. At the last assessment,
53% of participants reported success in changing sexual
orientation at least partially; 25% reported failure, most of
these reverting to a gay identity; and 23% were continuing
in sexual reorientation therapy or did not respond to the
questions. Jones and Yarhouse measured psychological
distress using the Symptom Checklist-90, a well-validated
instrument for assessing psychological distress with a
general index of distress and a measure of the intensity
of distress.
25. Id. at 406.
26. Stanton L. Jones & Mark A. Yarhouse, A Longitudinal
Study of Attempted Religiously Mediated Sexual Orientation
Change, 37 J. Sex & Marital Therapy 404 (2011), https://doi.org/10.
1080/0092623X.2011.607052.
14
Jones and Yarhouse reported average improvement
in each of three measures of distress for each of two
cohorts, regardless of outcome, from beginning to end of
the observations. 27
Jones and Yarhouse said their findings “contradict the
commonly expressed view that sexual orientation is not
changeable and that the attempt to change is highly likely
to result in harm for those who make such an attempt.” 28
The APA ignored the Jones and Yarhouse study in their
2021 Resolution supporting SOCE bans. 29
Pela and Sutton30 found small average changes in
sexual attraction but a substantial increase in wellbeing from “reintegrative therapy.” Reintegrative
therapy is a form of therapy that does not attempt to
change sexual attractions but treats early life trauma.
But reintegrative therapy is often condemned along
with so-called “conversion therapy” precisely because it
produces reports of changed orientation. Over the course
of the treatment participants “experienced significant
improvement in their well-being” (p. 76)31 as confirmed by
an average before/after improvement in symptom distress,
27. Id. at 418.
28. Id. at 425.
29. See, e.g., American Psychological Association, Resolution
on Sexual Orientation Change Efforts (Feb. 2021), https://www.apa.
org/about/policy/resolution-sexual-orientation-change-efforts.pdf.
30. Carolyn Pela & Philip Sutton, Sexual Attraction Fluidity
and Well-Being in Men: A Therapeutic Outcome Study, 12 J. Hum.
Sexuality (2021), https://www.journalofhumansexuality.com/files/
ugd/ec16e9d0708a0dc82e4da78e0258eb96dc1467.pdf.
31. Id. at 76.
15
interpersonal functioning and social role functioning of
23% (effect size of .80) on the Outcome Questionnaire
45.2, a widely used instrument for measuring psychiatric
treatment outcomes.
Again, these studies have taken the simplest step
of not excluding potential successes, either by sampling
outside those with LGB identity, or by longitudinal
data not subject to the problems of retrospective recall.
Once “convenience sampling” is removed, studies report
substantial success and a range of benefits for persons
who voluntarily sought counseling support for change or
management of their sexual orientation.
There is a difference in kind between the types of
claims made against change-allowing exploratory therapy
and the claims made in its favor.
The advocates of “therapy bans” make two sweeping
claims: first that sexual orientation is immutable and no one
can change. Second, the attempt to change is intrinsically
harmful, always and everywhere for everyone. Logically,
even a single counterexample of a person who changed
sexual orientation or who was not harmed by therapy is
sufficient to refute these sweeping claims.
By contrast, our hypotheses are much more modest.
The case for counseling freedom only needs to show that
some people change their patterns of attractions and
behavior to some extent. We only need to claim that some
people benefit from therapy in this process.
Banning all change-allowing therapy is an unjustifiably
extreme response to the harms reported by a subset of
“affirming” activists.
16
II. Sexual Orientation Is Not Immutable and Fixed—
Individuals Retain Agency
A.
Leading researchers acknowledge that sexual
orientation can change.
Following a review of the evidence on sexual orientation
change with co-author Clifford Rosky, Professor Lisa
Diamond, co-editor of the APA’s authoritative Handbook
of Sexuality and Psychology, 32 concluded that “arguments
based on the immutability of sexual orientation are
unscientific, given that scientific research does not
indicate that sexual orientation is uniformly biologically
determined at birth or that patterns of same-sex and
other-sex attraction remain fixed over the life course.” 33
The studies Diamond and Rosky reviewed “unequivocally
demonstrate that same-sex and other-sex attractions
do change over time in some individuals. The degree of
change is difficult to reliably estimate, given differences
in study measures, but the occurrence of change is
indisputable” (emphasis in original). 34
32. See Lisa M. Diamond & Douglas L. Tolman, APA Handbook
of Sexuality and Psychology (Am. Psychol. Ass’n 2014).
33. Lisa M. Diamond & Clifford J. Rosky, Scrutinizing
Immutability: Research on Sexual Orientation and U.S. Legal
Advocacy for Sexual Minorities, 53 J. Sex Res. 364 (2016), https://
doi.org/10.1080/00224499.2016.1139665.
34. Id. at 363.
17
Diamond and Rosky summarized the results of one
study 35 examining over 13,000 representative young
adults in the Growing Up Today Study (GUTS) as follows:
“Of the 7.5% of men and 8.7% of women who chose a
nonheterosexual descriptor at ages 18 to 21, 43% of the
men and 46% of the women chose a different category by
age 23. Among the same-sex-attracted youth who changed,
57% of the men’s changes and 62% of the women’s changes
involved switching to completely heterosexual.” 36
These authors also summarized results from the
National Longitudinal Survey of Adolescent to Adult
Health (Add Health) with over 20,000 representative
cases37 this way: “[R]espondents were asked to describe
themselves as 100% heterosexual, Mostly heterosexual,
Bisexual, Mostly homosexual, or 100% homosexual. Of
the 5.7% of men and 13.7% of women who chose one of the
nonheterosexual descriptors at [age 22 on average], 43%
of the men and 50% of the women chose a different sexual
orientation category six years later. Of those who changed,
two-thirds changed to the category 100% heterosexual.”38
35. Diamond & Rosky, supra note 33, citing M.Q. Ott et al.,
Stability and Change in Self-Reported Sexual Orientation Identity
in Young People: Application of Mobility Metrics, 40 Arch. Sexual
Behav. 519 (2011), https://doi.org/10.1007/s10508-010-9691-3.
36. Diamond & Rosky, supra at note 33, 369-70.
37. Ritch C. Savin-Williams & Zhana Vrangalova, Mostly
Heterosexual as a Distinct Sexual Orientation Group: A Systematic
Review of the Empirical Evidence, 33 Dev. Rev. 58 at 62-6 (Table 1)
(2013), https://doi.org/10.1016/j.dr.2013.01.001.
38. Diamond & Rosky, supra note 33 at 369.
18
As these examples document, the number of persons
who have changed from at least some homosexual behavior
to solely heterosexual sex behavior, with or without
the support of counseling, is substantial. The reviewed
studies just noted are not based on retrospective recall of
earlier states in convenience samples but employed true
longitudinal time series measures of the same individuals
at different ages in nationally representative samples.
They thus present the best available objective scientific
evidence for observing valid change in individuals over
time. This compelling evidence is what justifies the
definitive, strongly worded conclusions from prominent
researcher Diamond, quoted above, that sexual orientation
change is “indisputable” and that the claim that sexual
orientation is immutable is “unscientific.”
B. Most non-heterosexual people report mixed
attractions, enabling scope for agency to
pursue alignment with values and goals.
Arguments about counseling and the possibility
of “change” in gender identity are often framed as
though sexual orientation were a binary and a fixedsum construct within which “change” would necessarily
require turning off desires that the individual experiences
and turning on desires that the individual does not
experience. Empirically, this is extremely far from the
truth. Instead, most men and almost all women who are
not exclusively heterosexual report experiencing a mix of
both homosexual and heterosexual attractions.
The Kinsey scale measures sexual attractions
from 0 (“exclusively heterosexual”) to 6 (“exclusively
homosexual”), with values 1 to 5 reporting a mix of both
19
heterosexual and homosexual attractions. A review
of Kinsey scale results on major population surveys 39
reported data revealing that the percentage of respondents
not identified as heterosexual who nevertheless reported
mixed sexual attractions in these surveys was, by sex:
• Men 61%, Women 93% — citing National
Health and Social Life Survey (USA, age
18–59)
• Men 88%, Women 98% — citing National
Survey of Sexual Attitudes and Lifestyles
(UK, age 16–44)
• Men 72%, Women 95% — citing Add Health
Wave 4 (USA, age 24–33)
• Men 80%, Women 95% — citing National
Survey of Family Growth 2006–2008 (USA,
age 18–44)
• Men 77%, Women 95% — citing Dunedin
Multidisciplinary Health and Development
Study (DMHDS, current sexual attraction)
(New Zealand, age 26)
Recent research, moreover, has found the Kinsey
scale’s zero-sum assumption (that increased opposite-sex
attraction correlates with reduced same-sex attraction)
39. Ritch C. Savin-Williams & Zhana Vrangalova, Mostly
Heterosexual as a Distinct Sexual Orientation Group: A Systematic
Review of the Empirical Evidence, 33 Dev. Rev. 58 at 62-6 (Table 1)
(2013), https://doi.org/10.1016/j.dr.2013.01.001.
20
to be false. A definitive 2019 study that directly examined
the human genome found that “[i]ndividuals can be high
on both same-sex and opposite-sex behavior or attraction
(some bisexual individuals), and individuals can be
low on both (asexual).”40 The genome study called for
discontinuing use of the Kinsey scale.
Keeping in mind that sexual orientation operates on
three axes—attractions, behavior, and identity—these
facts imply that individuals may “change” their lived
sexual orientation not by working an extreme binary
change in their sexual attractions, but by changing from
one mix or intensity of attractions to both sexes to a
different balance or mix of attractions to both sexes. Thus,
“sexual orientation change” may not consist in a radical
re-orientation but in more measured, incremental change.
Individuals may also choose to act on or identify socially
emphasizing either homosexual or heterosexual behavior
or identity.
A recent examination of self-reports of sexual
orientation changes by seventy-two highly religious
men who had undergone SOCE found that most of them
underwent this kind of change. Only two men reported
a complete change from exclusively homosexual to
exclusively heterosexual attractions, with most reporting
incremental change among levels of mixed attractions.
Despite only modest change in attractions, however, most
men completely ceased homosexual behavior. The author
40. Andrea Ganna et al., Response to Comment on “LargeScale GWAS Reveals Insights into the Genetic Architecture of
Same-Sex Sexual Behavior,” 371 Science eaba5693 (2021), https://
doi.org/10.1126/science.aba5693.
21
observed, “while …psychological scholars may assert
that these men have not changed sexual orientation due
to possible persistent same-sex desire, … these religious
men may assert that they have changed sexual orientation
because they are able to resist acting on any persistent
same-sex desire.”41
C.
Denial of homosexual-to-heterosexual change
is contradicted by simultaneous affirmation
of heterosexual-to-homosexual and gender
identity change.
The insistence that persons w ith homosexual
attractions are unable to change any element of their
sexual orientation is not consistent with the well-known
experience and construction of sexual minority identity
in other areas. For example, many children enter samesex families by means of a parent who was previously in
an opposite-sex sexual relationship.42 Most such samesex parents identify as gay or lesbian, not bisexual, and
many are men. It must be acknowledged that men who
have transitioned from a procreative opposite-sex sexual
relationship to a same-sex sexual relationship have in
some sense changed sexual orientation. Your amici are
unaware of a single academic publication that questions the
veracity of these men or argues that they have not really
41. D. Paul Sullins, What Sexual Orientation Change Efforts
Change: Evidence From a United States Sample of 72 Exposed Men,
16 Cureus 13 (2024), https://doi.org/10.7759/cureus.68854.
42. Danielle Taylor, Same-Sex Couples Are More Likely to
Adopt or Foster Children, U.S. Census Bureau (Sept. 17, 2020),
https://www.census.gov/library/ stories/2020/09/fifteen-percent-ofsame-sex-couples-have-children-in-their-household.html.
22
changed. In whatever sense it is understood and accepted
that these men have transitioned from heterosexual to
homosexual orientation, why is it not possible also to
accept and understand that other men may transition from
homosexual to heterosexual orientation?
As another example, it is widely affirmed that some
persons experience a subjective gender identity that does
not conform to their phenotypic birth sex. Such people
transition from one gender identity to another, although
their bodily sexual biological functions do not, or only
change cosmetically. Many of the scholars and activists
who reject change in orientation affirm a possibility of
male to female (or female to male) change in the face
of intractable biological reproduction patterns. In the
same sense that one person can change gender identity
without changing their underlying biological sex, there is
no logical reason to exclude the possibility that another
person can change sexual orientation without changing
their underlying sexual arousal patterns.
These inconsistences suggest that the denial of any
possibility of orientation change does not reflect an
objective scientific conclusion; it can only be an ideological
objection to a particular form of disfavored expression
and activity.
23
III. Affirming-Only Therapy Is Not Evidence-Based
and Can Also Cause Harm
A.
“Affirming” therapy has not been demonstrated,
only assumed by ideology.
Contemporary professional discourse—particularly
within the American Psychological Association (APA)—
imposes rigorous scrutiny only on therapy that permits
sexual orientation change. Meanwhile, therapies described
as “affirming” are presumed valid and exempted from
equivalent empirical or ethical challenge. The APA has not
substantiated the superiority of affirming-only therapy
with replicable clinical data but assumes its legitimacy
as an article of ideological faith.
For instance, an important review article from
2016 dismisses plausible causal connections between
childhood sexual abuse and later same-sex attraction—
despite empirical data that suggest such links warrant
investigation. 43 This report, cited in the American
Psychological Association’s 2023 Resolution on Sexual
Orientation Change Efforts,44 acknowledges significantly
higher rates of childhood sexual abuse among nonheterosexual adults yet preemptively rules out causality
and instead attributes the correlation to the idea
43. J. Michael Bailey et al., Sexual Orientation, Controversy,
and Science, 17 Psychol. Sci. Pub. Int. 45 (2016), https://doi.
org/10.1177/1529100616637616.
44. See Am. Psych. Ass’n, Resolution on Sexual Orientation
Change Efforts (Feb. 2021) at 3, https://www.apa.org/about/policy/
resolution-sexual-orientation-change-efforts.pdf).
24
that “gender nonconformity” invites predation. This
interpretive leap is speculative and unaccompanied by
dispassionate scientific evaluation. It reflects a broader
trend: conclusions that affirm sexual minority narratives
are elevated without evidentiary scrutiny, while contrary
hypotheses are excluded from inquiry.
The ideological commitment to affirmation is so rigid
that even discussing potential causality between traumatic
childhood experiences and later sexual development is
often stigmatized or legally constrained. Under such
conditions, the role of therapy becomes validation, not
investigation or helping. The result is a professional double
standard: rigorous rejection of “change-allowing” therapy
on empirical grounds, coupled with a refusal to apply those
same standards to affirming therapy.
B. “Affirming” counselors can misdiagnose or
pressure clients.
The professional double-standard is not merely
academic. It puts real patients at risk.
When counselors are ideologically constrained to
“affirm” a client’s sexual orientation or gender identity,
regardless of context, they are discouraged from
exploring underlying trauma, confusion, or co-occurring
psychological issues. Clients are left without access to
truly comprehensive mental health care.
Concrete scenarios illustrate the danger:
If a young man presents with symptoms of trauma
linked to childhood sexual abuse, an affirming-only
approach may prohibit the counselor from examining
25
whether the abuse shaped the client’s sexual arousal
patterns. This is true even if the client himself raises
the concern. If the abuser was male and the client
now experiences same-sex attraction, the ideological
imperative to affirm may compel the counselor to bypass
meaningful inquiry into causality and coping. The State’s
imposition of affirming-only therapy, as in Colorado’s law,
thus silences legitimate therapeutic dialogue and ignores
the client’s right to self-determination.
Amicus Ruth Institute has interviewed patients
damaged by these pressures and has released them as
case studies.
For example, Nancy Charles sought help while
navigating drug addiction and emotional instability, a
profoundly vulnerable position. Ms. Charles’ counselor
in a rehabilitation facility diagnosed her with gender
dysphoria within moments of meeting her, without any
discussion or consent.45 Charles had never heard the term
before and was distressed by the counselor’s ‘diagnosis,’
which was based solely on her appearance. When Ms.
Charles objected, the counselor insisted that she was a
“safe space” and persisted in offering gender transition
as a valid path.46
Ms. Charles sought another counselor, only to find
they were driven equally by ideology. Ms. Charles told
her counselor that she, Ms. Charles, wanted to explore
45. See, The Phrase I Wanted to Hear My Whole Life
Was Actually Devastating to Hear | Nancy Charles Part 2,
YouTube (Ruth Inst., July 17, 2024), https://www.youtube.com/
watch?v=GrWIe0ld2Nk&t=543s (at 9:03).
46. Id.
26
why she wanted to be a man.47 Rather than being met
with curiosity or clinical neutrality, she was told there
was “nothing wrong” with her and that she was “perfect
just the way she [was].”48 The counselor immediately
rejected any inquiry into causes of Charles’ gender
confusion because that would not be affirming enough.
The counselor’s ideology required blaming Ms. Charles’
questions on internalized transphobia.
Ms. Charles left therapy feeling more isolated and
hopeless, stating that she was at the brink of suicide. The
affirming posture did not reassure her; it said her pain
was illegitimate and blocked therapeutic engagement with
her actual experience.
Broad definitions of “conversion therapy” further
chill clinical judgment. By equating all change-allowing
therapy with coercive or abusive practices, the profession
deters nuanced treatment and vilifies counselors who
simply listen, ask questions, or acknowledge complexity.
The result is systemic misdiagnosis by those who
are indoctrinated that affirmation is harmless. In truth,
ideologically driven therapy — whether under the guise of
affirmation or prohibition — can harm clients by denying
them the freedom to pursue therapeutic goals rooted in
their own narratives, values, and experiences.
47. See My LGBT‑Af f ir min g Th er ap i st Sai d THIS,
YouTube (Ruth Inst., July 12, 2024), https://www.youtube.com/
watch?v=0cT6Tj7opQ4 (excerpt of recorded interview between Ruth
Institute and Ms. Charles).
48. Id.
27
Charlene Cothran, a former lesbian activist and
publisher, describes a similar journey, into and out of
an LGBT identity. Cothran describes her life as shaped
by childhood sexual abuse and a longing for safety and
emotional connection. As she recounted, “[m]any gays and
lesbians don’t talk about [abuse] unless they’re in their
own little groups,” but among themselves, “they admit...
we all have been abused.”49 Cothran traced her decision to
pursue same-sex relationships to her trauma. Her candid
acknowledgment challenges the prevailing dogma that
same-sex attraction is invariably inborn and immutable.
Later in life, Cothran felt convicted about her public
role in promoting what she now describes as a “lie.” At a
pride event, she realized the magnitude of her influence,
especially as younger women began telling her, “I want
to be just like you.” Her internal conflict intensified,
prompting a spiritual reawakening. She renounced her
former identity, crediting her transformation to faithbased approaches that allowed her to confront the root
causes of her distress. 50
Cothran is a black, Baptist, American woman. At the
other end of the world, James Parker, a white Roman
Catholic Australian man, offers a similar observation
about the prevalence of childhood sexual abuse among
those with same-sex attraction. For 15 years, Parker ran
a support group in London for same-sex attracted persons
4 9 . S e e C h a n g e i s Po s s i b l e | C o t h r a n , D a r r o w ,
Sullins | Dr J Show ep. 136, YouTube (Ruth Inst., June 10, 2022),
https://w w w.youtube.com/watch?v=vTkZSh0MMJk&t=1209s
(at 20:09).
50. See, id. at 00:24:00–00:28:00.
28
who desired to live chastely. Based on his experience
with hundreds of people, he estimates that 80% had
experienced childhood sexual trauma. 51
Nancy Charles and Charlene Cothran are just two
cases showing the wide-spread harm of “affirming-only”
models that fail clients at their most vulnerable point.
The literature reports other, similar situations where
affirming therapy harms vulnerable people.
For example, Beckstead and Morrow reported that
all of their sample of 50 very religious same-sex-attracted
Mormons seeking sexual reorientation therapy “were
willing to give up their sexual identities in return for
religious and societal rewards because, as they stated,
they felt their sexual identities were peripheral to their
religious identities.”52 In a companion study, Beckstead
elaborated further: “Because of the high stakes involved
of losing family, friends, community, religious support, and
eventually ‘eternal exaltation,’ participants felt that ‘being
gay’ was not a valid choice for them.”53 The expectation
of gay-affirmative therapy prompted sample members to
frustration and despair. 54
51. See James Parker, Fact is, You Can Change Your LGBT
Identity, YouTube.com (Ruth Inst., Mar. 4, 2024), https://youtu.be/
xKcy76l_V2M?t=2252 (at 37:40).
52. A. Lee Beckstead & Susan L. Morrow, Mormon Clients’
Experiences of Conversion Therapy: The Need for a New Treatment
Approach, 32 Couns. Psychol. 651, 653 (2004).
53. A. Lee Beckstead, Cures versus Choices: Agendas in
Sexual Reorientation Therapy, 5 J. Gay & Lesbian Psychotherapy
87, 97 (2002).
54. Id. at 98.
29
In a 2024 report by British Islamic authorities, an
Australian Muslim man, Ahmed, recounted the traumatic
effects of so-called “affirmative” therapy that disregarded
his religious convictions. 55 Despite assurances that his
values would be respected, the counselors presented only
two options: misery, depression, and anxiety; or embracing
a gay identity. The encounter triggered a severe emotional
crisis, including panic attacks and hospitalization.
Subsequent counselors similarly pressured him to affirm
a gay identity, compounding his distress. He wrote:
[M]y life was literally shattered before my very
eyes. From that day onwards, I was in absolute
panic. I cried in my car for more than four
hours, the most intense tears that even soaked
my clothing. The same day, I had a non-stop
panic attack which felt as if it lasted forever. My
parents took me to the hospital in the middle of
the night because I was going insane.”56
Ahmed’s experience illustrates how ideologically
constrained therapy can violate client autonomy, disregard
deeply held beliefs, and result in significant psychological
harm.
As these cases show, ideologically driven approaches
do not necessarily relieve distress; often they increase
distress, and sometimes catastrophically. Their experience
of childhood trauma suggests strongly that people need
more opportunities to discuss the impact of childhood
55. British Board of Scholars & Imams, Muslim Council of
Scot. & Muslim Council of Wales, Conversion Therapy: What Should
Muslims Know?, 21–22 (Mar. 2024).
56. Id.
30
sexual abuse, not fewer. The State of Colorado is cruel
to systematically preempt discussion of a possible link
between childhood trauma and patterns of sexual desire
and behavior.
IV. Viewpoint-Based Suppression of Counseling
Speech Violates the Free Speech Clause.
A.
Colorado’s law singles out disfavored ideas for
suppression.
View point discr imination constitutes a more
“egregious” and “blatant” offense to the First Amendment
than does an ordinary content-based restriction— “a law
that singles out specific subject matter for differential
treatment.” Reed v. Town of Gilbert, 576 U.S. 155, 156
(2015).
Viewpoint discrimination is “uniquely harmful to a
free and democratic society.” Nat’l Rifle Ass’n v. Vullo, 144
S.Ct. 1316, 1326 (2024). Thus, if a law is “viewpoint-based,
it is unconstitutional.” Iancu v. Brunetti, 588 U.S. 388,
393 (2019); accord Minn. Voters Alliance v. Mansky, 585
U.S. 1, 11(“prohibited”); Matal v. Tam, 582 U.S. 218, 243
(2017) (“forbidden”).
“The state engages in viewpoint discrimination when
the rationale for its regulation of speech is the specific
motivating ideology or the opinion or perspective of the
speaker.” Gerlich v. Leath, 861 F.3d 697, 705 (8th Cir. 2017)
(internal quotation omitted). Viewpoint discrimination
constitutes a more “egregious” and “blatant “offense to
the First Amendment than does an ordinary contentbased restriction. Reed v. Town of Gilbert, 576 U.S. 155,
156 (2015).
31
The same principle applies even more when the
public debate is about medical issues. For example, in
Conant v. Walters, the federal government threatened
to revoke physicians’ DEA registrations if doctors, based
on their professional judgment, recommended the use of
marijuana. 309 F.3d 629, 632-33 (9th Cir. 2002). Conant
recognized the “core First Amendment values of the
doctor-patient relationship.” Id. at 637. Candid, open, and
honest conversation is paramount “in order to identify
and treat disease; barriers to full disclosure would impair
diagnosis and treatment.” Id. at 636 (quoting Trammel v.
United States, 445 U.S. 40, 51 (1980)). And so, naturally,
doctors do not “surrender” their First Amendment rights
simply by “[b]eing a member of a regulated profession.”
Id. at 637. In applying First Amendment scrutiny, the
Ninth Circuit found that the government’s policy did “not
merely prohibit the discussion of marijuana” generally
(a “presumptively invalid” content-based restriction), it
“condemn[ed] expression of a particular viewpoint, i.e.,
that medical marijuana would likely help a specific patient”
(a viewpoint-based restriction). Id. Worse still, this
viewpoint-based restriction “altered the traditional role
of medical professionals by prohibiting speech necessary
to the proper functioning of those systems.” Id. at 638.
Similarly, a municipal ordinance banned therapists
from offering any counseling hoping to change a minor’s
sexual orientation. Otto v. City of Boca Raton, 981 F.3d
854 (11th Cir. 2020). On review, the Eleventh Circuit
concluded that the ordinance was an unconstitutional
viewpoint-based restriction on speech. Though the city
could promote its own “viewpoint about sex, gender,
and sexual ethics,” it had no right to “engage in bias,
censorship, or preference regarding another speaker’s
point of view.” Id. at 864. And that is what its law did:
32
speech affirming one’s sexual orientation was permitted;
disaffirming speech promoting sexual orientation change
was not. Here, the 11th Circuit was correct, and this Court
should make it the rule nationwide.
States simply have no right to deny admission to the
“marketplace of ideas” for those ideas it disapproves.
Between the dangers of suppressing information and
the alleged dangers of misusing information, “the First
Amendment makes [the choice] for us.” Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748,
770 (1976). It requires a ruling against suppression, and
in favor of allowing individuals to judge the information
for themselves. And professional counselors have just as
much right to participate in that free exchange of views.
Nat’l Institute for Fam. and Life Advocates v. Becerra,
138 S. Ct. 2361, 2371 (2018).
If governments have the power to dictate the
professional views of private healthcare providers during
contentious times, every view will be either banned
or mandated, prohibited or required, compulsory or
forbidden. See, e.g., John T. Whitaker, Italy’s Seven
Secrets, SATURDAY EVENING POST, Dec. 23, 1939, at
53 (depicting the totalitarian principle at work in fascist
Italy).
B. Colorado’s law targets speech, not conduct.
This Court has long recognized that “it is no answer
to say that the purpose of the regulation is merely to
insure high professional standards and not to curtail
free expression. For a state may not, under the guide of
prohibiting professional misconduct, ignore constitutional
rights.” NAACP v. Button, 371 U.S. 415, 438-39 (1963).
33
Indeed, Mr. Justice Jackson nearly predicted this
very case in 1945: “[T]he state may prohibit the pursuit of
medicine as an occupation without its license, but I do not
think it could make it a crime publicly or privately to speak
urging persons to follow or reject any school of medical
thought. Thomas v. Collins, 323 U.S. 516, 544 (1945)
(Jackson, J., concurring). Thomas concerned an attempt
to block union speeches using professional regulations.
Justice Jackson rejected the attempt.: while the state
“may regulate one who makes a business soliciting funds…
for unions,” that may not interfere with their protected
speech. Thus, wrote Jackson, “I do not think it can prohibit
one, even if he is a salaried labor leader, from making an
address to a public meeting of workmen, telling them
their rights as he sees them and urging them to unite in
general or to join a specific union.” Given Justice Jackson’s
prescient comments, long standing First Amendment
rules prohibit states from using professional regulations
to stifle any professional’s ability to talk about “any school
of medical thought.”
And if there were any doubt, this Court’s decision in
Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 75
(2018), should have resolved the matter.
Yet the decision below claims to uphold NIFLA at the
same time it would gut it. Citing NIFLA, Judge Hart’s
dissent observes:
The approach of the majority opinion would
“give [] the States unfettered power to reduce
a group’s First Amendment rights by simply
imposing a licensing requirement. States
cannot choose the protection that speech
receives under the First Amendment, as that
34
would give them a powerful tool to impose
invidious discrimination of disfavored subjects.”
Chiles v. Salazar, 116 F.4th 1178, 1228 (10th Cir. 2024)
(Hartz, J., Dissenting).
Judge Hartz was correct about the dangers of
Colorado’s ban on speech. The First Amendment does not
allow professional speech to be censored, and this Court’s
precedents compel a decision for Petitioner Chiles.
35
CONCLUSION
Colorado’s law censors deeply personal, voluntary
conversations between counselors and clients based solely
on disfavored viewpoints. It rests on contested science,
disregards the experience of those harmed by affirmingonly practices, and violates the First Amendment’s
guarantee of viewpoint neutrality.
Your amici respectfully urge the Court to reverse the
judgment below for the reasons stated in Petitioners’ brief.
Respectfully submitted,
Jonathan R. Whitehead
Counsel of Record
Law Offices of
Jonathan R. Whitehead, LLC
229 SE Douglas Street, Suite 210
Lee’s Summit, MO 64063
(816) 398-8305
jon@whiteheadlawllc.com
Counsel for Amici
June 13, 2025
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