Producer:
This episode of Social Work Talks is sponsored by the University of Cincinnati Online!
Lorrie Appleton:
So welcome to Social Work Talks. I'm your host, Lorrie Appleton. Listeners, have you heard about the Supreme Court's decision in Chiles v. Salazar? In 2019, Colorado's minor conversion therapy law prohibited licensed professionals from practicing conversion therapy with minors. Kaley Chiles, a licensed mental health counselor, challenged the Colorado law arguing it violated her First Amendment right to free speech. On March 31st, 2026, the Supreme Court issued an eight to on decision reversing the ruling of the lower courts supporting Chiles’ assertion. The court held that Colorado's law constituted viewpoint discrimination. The case has been sent back to the Federal District Court where Colorado must now prove its law meets strict scrutiny, the highest and most demanding constitutional standard. This decision has far reaching implications for licensed mental health professionals across the country, raising urgent questions about the future of conversion therapy bans, authority of state licensing boards, and the distinction between evidence-based clinical practice and constitutionally protected speech.
Folks, have I gotten your attention yet? We are privileged to hear from our guest, Ashlee Fox. She leads the NASW Legal Defense Fund where she develops innovative educational programming and oversees member consultation services providing social workers with timely practical resources to navigate legal challenges. Ashlee holds a JD and an MSW from Georgia State University and a BA from Spelman College. Now, as a footnote, listeners, you will be hearing from inquiring social workers who took the time to write in their questions. So, thanks so much for joining us, Ashlee.
Ashlee Fox:
Thank you so much for having me. I'm really excited to have this conversation today with you, Lorrie.
Lorrie Appleton:
Me too. So my first question may be a bit challenging. For those of us who are not familiar with the case, will you provide us with a summary using layman's language? It's important that we all understand the particulars in this case.
Ashlee Fox:
Yes, and I think that's a really good point for us to start at because it is a case that is really important and I think a lot of times what the takeaway is, is being a little missed. So just building off of your great introduction, like you stated, Colorado passed a law in 2019 and this law prohibited licensed counselors from practicing conversion therapy specifically with minors. This was about minors and a licensed counselor, her name Kaley Chiles, I think that's how you pronounce it. She challenged this law and she argued that because she's only using conversation when she's working with her clients. She's only conversing with them. She's not using any physical techniques, no medications, that restricting what she says violates her First Amendment right to free speech. And what we learned is that the Supreme Court in a shocking eight to one decision agreed with her.
And what I really want the takeaway to be is the court's reasoning, and I think that's really going to build the foundation for our discussion today. And so what the court reasoned is that Colorado's law allowed a counselor to say, "I can help you accept your sexual orientation," but it prohibited the counselor from saying, "I can help you change it." The court called that unconstitutional viewpoint discrimination that is essentially the government is picking one side of a debate over the other. This is gender-affirming care versus conversion therapy. And so because of that, the case has been sent back down to the lower courts, as you mentioned, and it now must meet the highest constitutional standard in order to enforce this ban, which is strict scrutiny. I have to say that only a few laws can survive such a strict scrutiny review. With that being said, it's also very important to say what the court did not say.
The court did not say that conversion therapy is safe or effective. That's important. The ruling was about how specifically Colorado's law was written, not about the impactful, harmful impact of conversion therapy.
Lorrie Appleton:
So you used the word shocking. I think that's a very, very good word. And we likely have assumptions regarding the practice of conversion therapy. So as you talked with us, I think that those assumptions are important to understand. So will you provide us a bit more detail regarding the intent of conversion therapy?
Ashlee Fox:
That's a great question and I think it's really important for us to understand. So the intent very simplistically of conversion therapy is the idea that you can change a person's sexual orientation or gender identity. And the premise is that being gay, lesbian, bisexual, or transgender is a disorder that can be fixed or corrected. However, we know this is not true. Medical and mental health organizations, including the APA, the American Psychiatric Association, the American Medical Association, as well as NASW has rejected that premise entirely. And also I want to discuss just historically conversion therapy used deeply harmful physical techniques like electric shocks. Those methods I believe have largely disappeared, I would hope so, but what remains today is primarily talk-based. And talk-based is when a counselor uses conversation to steer a client towards changing who they are. The intent is the same and the harm is just as real, whether you're using physical or just talking to a client.
This can hurt the person. Individuals that have spoken about the harmful impacts of conversion therapy have discussed lasting depression, anxiety, PTSD, and even unfortunately suicidal ideation. So the impact of conversion therapy is real and harmful. And then when you take that into consideration that this ban was about minors, you can just imagine how harmful it can be and detrimental it can be for minors that encounter conversion therapy. I don't
Lorrie Appleton:
I don’t know about you listeners, but I would love to do a whole podcast on just that answer. So thank you for giving us some more guidance. And I want to take a little bit of a shift because we received a question from an NASW member in Maine and she said, "The root of conversion therapy is in part a religious one. Since Colorado's law bans conversion therapy is part of the ruling that the law violates the separation of church and state?" And that's what she's asking. And Ashlee, what are your thoughts about this intriguing question.
Ashlee Fox:
That really is an intriguing question, Lorrie, and it's a good one and I understand exactly where the member is coming from with this question, so I do want to answer it. I want to answer it carefully because it touches on something real. But first, the short answer is no. The court's ruling was not based on the separation of church and states. The First Amendment does contain two religion clauses that is the establishment clause as well as the three exercise clause, but that was not what was up for debate and discussion when we're talking about Chiles’ case. Chiles did not make a religious liberty argument in her case, therefore the court did not really rule on that one. The ruling was primarily based on the free speech clause. So not the establishment clause, not the free exercise clause, the free speech clause. And the court found that Colorado's law discriminated based on viewpoint, not that it violated anyone's religious freedom.
So that's an important distinction to make in why this really wasn't about religious freedom. That said, this member's question is an important one and it's right. Conversion therapy has deep roots in religious traditions and religious liberty arguments have been raised in numerous cases. It just wasn't raised in this one. Practitioners and organizations have argued that banning conversion therapy infringes on the free exercise of religion, but that was not the basis for this decision. And so what the court has decided for this is that it was a speech question, not a religion question.
Lorrie Appleton:
That is so helpful for us to know because we could all go down rabbit holes about different things regarding this case. Chiles, the petitioner in this case, is asserting that she is simply providing, which goes to your point, Ashlee, "Talk therapy," end quote, which she views as a First Amendment right to free speech. It appears that her premise dilutes the mandated standards, ethics and practices for social workers, psychologists, psychiatrists, physicians, and others and everyone collaborating together certainly makes a lot of sense and there are critical distinctions that you started to talk about between talk therapy and services provided by licensed mental health professionals. Do you want to add anything to that?
Ashlee Fox:
So that's absolutely right, Lorrie, and it's really an important distinction that you're bringing out this argument of talk-based therapy. So Chiles’ argument and what the court has accepted is that she treats the clinical conversation as constitutionally equivalent to any other speech, but that framing erases everything that makes clinical practice clinical. When a licensed social worker in LCSW, when an LPC, when a psychiatrist, when a psychologist, when they sit with a client, they are applying graduate level training, evidence-based methods in years of supervised practice. They actually operate within a relationship that is grounded in legal duties, right? We understand that we have to work with the client's best interests. We have the duty to do no harm. We have to maintain confidentiality informed consent. These are all legal duties that a clinical social worker, licensed counselor, these are all things that they bring to the clinical relationship.
A standard of care exists precisely because the clinical relationship is like no other conversation that you're having with a friend, with a colleague. It's different. And what concerns me deeply is what happens when we say this talk speech therapy is the same as free speech, this argument that's getting picked up. We cannot use this argument to move other arguments forward and I want to highlight that. I know some social workers are wondering, well, whether this ruling can be useful, particularly for protecting gender-affirming care in states where it's restrictive. And we want to rely on this argument that Chiles has brought to the conversation this free speech argument, but here's the risk in bringing that to the arguments. If you accept that therapy is speech and not treatment, then our profession is conceding something that would undermine the very framework that gives social workers the professional authority.
That argument would take away everything that social workers do in specialized training, in their legal duties, and they're subject to their standard of care. These are all things that social workers are bound by and the it's just talking argument is a door that once it's opened, it's very difficult to close. You understand what I'm saying, Lorrie? We don't want that argument to be used.
Lorrie Appleton:
I get it. And I want to advise listeners because of my experience in learning about this case and you helping me understand more talk therapy. Look for that phrase. It has slipped into the public vernacular. Social workers are on a very, very slippery slope, which requires swift and powerful action to prevent the universal perception that we are merely just talking. You will now start to see that phrase. It's showing up. And we're not just talking. As you said, we're talking with evidence-based methodology.
Producer:
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Lorrie Appleton:
Shimon, an NASW member in Maine asked an interesting question. He said, "How is NASW advocating to prevent harm to LGBTQ+ individuals, families, and communities who will be harmed by practices like conversion therapy?"
Ashlee Fox:
That's a big question and something that NASW is continuing to evaluate. How can we continue to support our members? What can we do on the front lines? And so I want to provide some information on what NASW is doing and what we will continue to do. Legislatively, the ruling identified a specific flaw in how Colorado's law was written. Justice Kagan's concurrence signaled that a viewpoint neutral law regulating therapeutic speech might survive truly. NASW chapter executive directors have been on the ground getting conversion therapy bans passed and supporting the passing of conversion therapy bans. And so what this decision actually does is it gives us clear guidance on how those laws need to be written to hold up and forth. And so that is an actual information that we can take from this case and how we can use it. It's very important to understand what your state chapter is doing.
Our chapter executives are amazing at the advocacy and the work that they're doing and the laws that they're getting passed and conversion therapy bans is one of them. So we need to make sure that we're continuing to support them in those efforts. Beyond legislation, the NASW Code of Ethics, the practice standards, the critical guidelines, those carry real professional consequences. These are things that employers have that malpractice insurers use, that even with civil litigation that attorneys rely on when they are representing families that have been harmed. They rely on these standards. They look to understand what an ethical social worker would do. So even when licensing boards are facing legal constraints, other accountability mechanisms remain. And I think that's important to remember. And the most important thing I can say is that our ethical obligations have not changed. Social Work Speaks, which is our policy handbook, has not changed.
It is very clear where we stand on conversion therapy. Conversion therapy is incompatible with social work ethics and that is true regardless of what the courts desire.
Lorrie Appleton:
So let's summarize for a second. So you have encouraged us and proposed that we advocate, support state and federal legislative efforts to protect minors from harmful practices and uphold evidence-based affirming standards of care in social practice. Do I have that right?
Ashlee Fox:
Absolutely. Absolutely. In lot of our statements, this is what NASW has said that social workers can do and we've also outlined exactly what NASW has done.
Lorrie Appleton:
Excellent. Did the NASW Legal Defense Fund play a role in acting as a conduit between NASW and the courts?
Ashlee Fox:
Yes. And I thank you so much for bringing up the Legal Defense Fund. It is the arm of NASW that provides legal information and support to our members. And it's also what allows NASW to show up in courts as an institution. So, in this case, we joined am Amicus Brief along with the American Psychological Association and 12 other medical and mental health organizations presenting the social work professions position directly to the US Supreme Court, but that's not the only time that we've done this. This is not a one-time thing, so LDF. The LDF joins amicus briefs throughout the year before the US Supreme Court, before State Supreme Courts, before appellate courts. Anytime a case impacts social workers or the communities we serve, we may want to be on a brief that goes before a judge to provide that social work perspective and we try to do that as much as possible.
And I also want to highlight that beyond the courts, the LDF runs through LDF Help Desk, which is where we really want every social worker listening to know about. It is where members can call in on Tuesdays and Thursdays to ask legal questions in real time. Someone's going to answer and they're going to speak with you. And although we can't provide specific legal advice, we can provide useful information and resources. So if you're practicing in a state where there's a gender-affirming care ban and you're not sure how that impacts you in your practice, that's a call for the LDF Help Desk. If you've received a subpoena and you don't know your next steps, that's a call for the LDF Helpdesk. We will walk you through that process. It's genuinely a valuable resource and I really want to encourage everyone to use it. I'm going to go ahead and plug in our website.
It's
www.socialworkers.org/about/legaldefensefund
Lorrie Appleton:
Excellent. That's really good to know. And we'll be talking about where you can find more information within this podcast. Now I'm going to talk to you, the listeners. I'm looking right at you. I have always believed ‘if it is to be, it's up to me.’ This case acts as an alert to all of us to raise our voices when we hear language, which does not comport with our professional code of ethics and standards. Our profession depends on it. So thank you listeners for tuning into this episode of Social Work Talks. We hope this program has enticed your curiosity and created questions, which will lead you to become involved in rich, meaningful discussions. You can find more information about the topic, the NASW Legal Defense Fund, and efforts being conducted at the NASW Colorado chapter in the show notes section of socialworkers.org. Thank you for listening.