Dr. Jeremy Sharp (00:36)
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Dr. Jeremy Sharp (01:19)
Hey folks, welcome back to the podcast. Today we are venturing into the legal and potentially political realm with a discussion of the recent landmark decision from Chiles versus Salazar regarding free speech versus standard of care in the context of conversion therapy. So if you have not heard of this, this was a huge decision that has
the potential to fundamentally shift the ground in our profession. So for decades, mental health professionals, psychologists, medical professionals have operated under kind of a basic assumption, which is that the state has the authority to regulate professional conduct and establish standard of care to protect patients from harm. But what happens when the primary tool of our trade, the spoken word or written word in our case,
is declared constitutionally protected free speech, effectively shielded from state regulation. That is just a teaser, kind of a summary of what happened in this decision. So I’m just going to be working through some of the literature and the context and background and potential outcome of this Supreme Court decision. I’m going to explore how the ruling
has a potential to reclassify clinical interactions and disrupt state licensing board authority and specifically how it impacts testing and diagnostic work and forensic stuff. lots to dig into here. Now, a full disclaimer, of course, I am not an attorney. I did not consult an attorney. I just did a bunch of research and I’m trying to summarize this information in layperson’s terms to give some sense of what was behind this and how it might impact our work.
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For now though, let’s transition to this discussion of the Chiles versus Salazar court decision.
Dr. Jeremy Sharp (04:16)
OK, folks, diving right into it. I’m going to set the stage and give you a little bit of background information on the case and the ruling before we move to anything else related to the impact or ramifications down the road of this case.
To understand the impact of this ruling, we first have to understand how we got here. So the background centers on the state of Colorado here. So in 2019, Colorado enacted something called the Minor Conversion Law or MCTL.
The law prohibited licensed mental health professionals from engaging in conversion therapy with minor clients, defining the practice as any treatment attempting to change an individual’s sexual orientation or gender identity. The legislature passed this law after crediting professional consensus that such practices are not only ineffective, but profoundly harmful. And it increases the risks of depression and anxiety and suicide among
LGBTQ plus youth.
Now enter Kaylee Chiles, a licensed professional counselor in Colorado with a master’s degree in mental health. She challenged this law, arguing that it violated her First Amendment right to free speech. So the crux of the argument was that she exclusively uses quote unquote talk therapy, meaning she employs no medications or physical interventions. And because her therapy consists entirely of the spoken word
She argued that the state was illegally censoring her speech. All right. So this goes to the Supreme Court and in an eight to one decision authored primarily by Neil Gorsuch, the Supreme Court sided with Kayleigh. The court ruled that while the First Amendment protects many forms of expression, the spoken word is, quote, perhaps the quintessential form of protected speech.
And it does not lose that protection simply because it occurs in a clinical setting.
Perhaps most importantly, the majority found that Colorado’s law engaged in an unconstitutional viewpoint discrimination. the MCTL, the law I talked about just a minute ago, explicitly permitted therapists to speak in ways that provided assistance to a minor undergoing a gender transition or to support identity exploration. However, it criminalized speech that attempted to reduce unwanted sexual attractions or realign a minor’s identity with their biological sex. So by allowing professionals to express one viewpoint but forbidding the exact opposite perspective, the court ruled that the state was engaging in quote, an egregious form of content discrimination, unquote.
So this kind of steers us into the territory of medical consensus and standard of care versus the First Amendment or free speech issues. So you might be asking, hey, doesn’t the state have the right to regulate substandard medical care, right, like through the state licensing board? Colorado, the state of Colorado, argued that it did. The state insisted that it was not regulating expression at all, but rather it was regulating professional conduct.
And therapeutic modalities to enforce a standard of care. And they leaned heavily on the vast consensus of major medical and psychological associations, including the APA, that stated that conversion therapy is a harmful practice. And to be clear, just to save you the effort, the evidence here is pretty overwhelming. Political or personal feelings aside, conversion therapy is absolutely not an evidence-based practice or otherwise effective in any way, shape, or form.
That said, the justices and the majority firmly rejected that argument. So the court noted that medical consensus is not static, it evolves, and it always has. So the majority opinion again warned that the First Amendment prevents the government from transforming prevailing professional opinion into enforced conformity, noting that, quote, reflexive deference to prevailing views has historically led to dark chapters in American medicine, such as the forced sterilization of individuals with mental, intellectual disabilities. So on the other side, there was pretty strong dissent from Justice Katanji Brown Jackson. She was the only dissenting vote. She said that talk therapy is a medical treatment and that states have used their police powers to establish standards of care for medical professionals, essentially, you know, since the beginning of time.
And she also warned that this ruling opens up a dangerous can of worms. She cautioned that the court’s threatens to usher in an era of unsupervised health care providers wielding essentially like a shield, a constitutional shield or right to provide substandard care simply because the treatment is delivered via speech rather than by using a scalpel. That’s what she said. Okay, so
What are the potential impacts on mental health care in general? I’ll start with mental health care in general and then move to testing and evaluation. So there are some potential negative effects on mental health care outcomes as you might imagine. First of all is just like the potential for proliferation of harmful quackery, right? So the ruling severely limits state licensing board’s ability to enforce any medical standard of care.
Or to proactively ban therapies proven to be dangerous or ineffective, right? Like conversion therapy, which is linked to increased depression, anxiety, suicide, and minors. So Justice Jackson’s dissent warned that limiting the state’s regulatory power opens dangerous can of worms, like I said. Another problem is that it can shift from preventative to reactive patient protection. What’s this mean? Because the state’s power for
Preventive regulation is now drastically impaired. The burden of addressing therapeutic harm shifts entirely to post hoc retroactive civil litigation. so patients who suffer psychological damage from non-traditional or debunk therapies are just kind of left without legal protection and will have to rely on reactive measures like medical malpractice, lawsuits or consumer fraud claims only after the harm has already occurred.
And then the last thing, not the last thing, but last thing I’ll mention here is the erosion of consumer trust. So when you dilute the enforceable standards of care for talk therapy, state psychology license, licensed psychologist may no longer guarantee that a practitioner is adhering to safe evidence-based practices. experts warn that this could make it harder for patients to navigate the mental health care system and trust that the therapy they receive is clinically sound.
And Colorado, think, is already on shaky ground with this because we have a designation within the licensing board called unlicensed psychotherapists. Like you can register as an unlicensed psychotherapist, something like that. So it’s already a little murky and kind of, you know, smushy as far as, you know, allowing unproven or unlicensed practitioners to to engage in mental health treatment.
But all that said, it’s not all terrible. So there are some potentially positive effects on mental health care outcomes. One is that there is now some protection for politicized or marginalized care. So the sweeping First Amendment protection established by the court can be leveraged to defend essential health care that’s currently under political attack.
Legal experts have noted that the strong language protecting provider speech could be used to protect therapists who offering gender affirming care or reproductive health counseling in states that attempt to restrict or criminalize those conversations. Right. So it stands to reason that if all treatment is now quote unquote free speech and protected then it applies to both sides of the coin and theoretically provides more protection for affirming care as well.
The other aspect that might be a positive component of this is kind of safeguarding against historical medical errors. What does that mean? by preventing the government from enforcing a single orthodoxy, I suppose, in thought or speech, the ruling protects the mental health profession from being locked into a static consensus by state mandate. Legal proponents of the decision point out that medical consensus has historically endorsed his somewhat horrific practices like eugenics and forced sterilization or the historical classification of homosexuality as a mental health disorder and that protecting some of these dissenting views prevents the state from weaponizing temporary medical orthodoxy, right? Or things that are thought to be standard of care and then turn out to be pretty terrible down the road.
So what does all this mean for us as testing folks?
Dr. Jeremy Sharp (14:25)
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Dr. Jeremy Sharp (15:30)
Well, according to legal scholars, Chiles versus Salazar fundamentally reconfigures the boundary between professional speech and clinical conduct. So for testing folks or assessments, clinical interviews and diagnostic reporting, these are all
a synthesis of clinical judgment and scientific data. this new framework, after this ruling, these are no longer these things, these aspects of our work are no longer just medical conduct, they are highly protected speech. So if a state licensing board attempts to discipline a psychologist for a diagnosis or assessment feedback that deviates from the prevailing medical consensus, the psychologist may now legally argue that their diagnostic report constitutes a protected clinical viewpoint.
So if you think about the implications for diagnostic oversight, state boards might now face massive constitutional hurdles if they try to mandate the use of specific validated frameworks like say the DSM five or if they attempt to prohibit unscientific diagnostic labels because the court ruled that the state can’t dictate a professional’s point of view just because they hold a license.
Boards are kind of stripped of their ability to enforce standard of care or orthodoxy through speech. So here’s some even more specific examples that are relevant to us.
Dr. Jeremy Sharp (16:56)
With regard to autism assessments, psychologists may have more freedom to diagnose autism spectrum disorder based on clinical judgment and developmental history and quote unquote masking or diversity, neurodiversity affirming frameworks.
Even if standardized test scores fall below the traditional cutoffs. So I think a lot of us probably do this anyway. know we introduce clinical judgment of course. But now there are you know there will be more protection for that presumably. With regard to ADHD it might become harder for regulators to dictate how clinicians weigh you know self-report data versus performance validity testing for example. And then with gender affirming care, gender related evaluations, because this case directly involved gender identity and sexual orientation, state efforts to mandate or restrict affirming or affirmative approaches in evaluations for gender dysphoria will likely become highly legally contested from this point forward. Additionally, this ruling really strongly reinforces that forensic evaluation and expert witness testimony are protected speech.
So this creates a high barrier, I think, for licensing boards that are seeking to discipline forensic experts for testimony that peers might perceive as biased or unscientific or deviating from prevailing scientific views. So the standard of care is no longer a shield that licensing boards can easily use to regulate what we say to our clients or the courts.
Dr. Jeremy Sharp (18:27)
What else is important here? So increased legal scrutiny of evaluation reports. Ironically, because written assessment reports are now considered protected speech that directly influences legal rights like IEP eligibility or 504 planning or disability claims, they will likely be more legally scrutinizable. Testing psychologists like us can probably expect an increase in subpoenas and legal challenges from attorneys who are arguing that a psychologist specific quote unquote viewpoint unfairly impacted a client’s rights. And then one last thing mentions just changes to ethical interpretations and daily practice. So while the APA ethics code remains intact, its application may shift.
So instead of demanding strict compliance with established consensus standards, the focus is going to move toward whether a psychologist can provide defensible scientific rationale for their methods. While psychologists will probably enjoy more diagnostic freedom, they might bear a greater responsibility to explicitly document their clinical reasoning and site relevant literature and more rigorously justify any deviations from standardized test scores. And as we all know, deviation from standardized test, I mean, the scores don’t dictate the outcome necessarily.
So, this is dicey to say the least. So where do we go from here. What does the what does the future hold. I think it brings us to kind of a critical pivot point which is what clinical accountability is going to look like. So as Justice Jackson the dissenting opinion warned this ruling effectively strips state licensing boards of their preventive or proactive legal protections.
Boards may no longer be able to proactively ban specific talk based treatments or diagnostic feedback deemed harmful by the scientific community because doing so triggers strict scrutiny under the First Amendment now. So where does accountability go? Well, with state boards facing First Amendment litigation threats for investigating talk based harms, the responsibility for patient safety will likely heavily shift to the civil tort system.
Dr. Jeremy Sharp (21:23)
So if a patient is harmed by negligent talk therapy or damaging know, assessment practices, they will increasingly have to rely on this post hoc medical malpractice route. The Supreme Court actually highlighted this in their decision. The majority noted that traditional malpractice actions require very specific proof that a plaintiff suffered an injury caused by the defendant’s breach of a duty of care.
And the court stated that these exacting proof requirements provide, quote, sufficient breathing room for protected speech, unlike the state licensing laws that threaten to revoke a professional’s license simply for expressing a disfavored view. So ultimately, accountability, I think, is going to be tested in civil malpractice courts after the harm has occurred rather than prevented in the first place by state regulatory boards.
Lots to sort through here. So what do we take away from all this? Again, just summarizing, in March 2026, the ruling, Chiles versus Salazar, it was a pretty big moment for our field with lots of potential implications. It now provides kind of a robust constitutional shield for our clinical conversations and diagnostic findings and expert reports, declaring them protected speech rather than merely professional conduct.
That said, it also puts us as a profession into pretty ambiguous legal territory regarding ethical enforcement and consumer protection. I don’t know. At this early stage, it seems like the safest and strongest stance that testing psychologists can incorporate is to practice with flexibility in interpretation, but rigidity in documentation and justification.
This frankly sounds like a nightmare and like we are going backward in terms of how we write our reports. You know, we’ve been doing a lot of work over the years to not have to justify every single clinical decision that we make and walk through every piece of the data. And there’s indications now that we may need to do a little more of that.
Now, just to be super clear, I am not changing our report template or anything like that at this point, but I’m definitely going to be considering how we might provide more rigid documentation and justification going forward. So as testing folks, I think we have to stay vigilant. The speech is now highly protected from state censorship, but the guardrails of the profession have shifted, it seems. The standard of care is now going to be likely forged and debated and tested in more civil malpractice courts rather than relying solely on state licensing boards or mostly on state licensing boards.
Dr. Jeremy Sharp (23:10)
So lots to sort through here. It’s still very early, but I wanted to get out some kind of summary or content related to this landmark decision before it gets too far down the road. Now you can expect updates as the impact of this decision percolates through our field. But for now, I hope this has been a helpful primer in giving you some things to think about as we work with this new decision.
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