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Should Conversion Therapy Be Protected Speech? What Chiles v. Salazar Means for Conversion Therapy Bans and the Future of the Profession

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Should Conversion Therapy Be Protected Speech? What Chiles v. Salazar Means for Conversion Therapy Bans and the Future of the Profession

A note before we begin: This episode is a clinical and professional discussion, not legal advice, and Curt and Katie are not attorneys. Curt is the current chair of the CAMFT Ethics Committee and Katie is a member of that committee, but they are not speaking for CAMFT or its ethics committee here. If you have questions about how this ruling applies to your own practice or your state, please consult an attorney.

On March 31, 2026, the U.S. Supreme Court decided Chiles v. Salazar, ruling 8 to 1 that Colorado could not stop a licensed counselor from using talk therapy to attempt to change a minor’s sexual orientation or gender identity. As applied to that talk therapy, the Court held, the state’s conversion therapy ban regulates speech based on viewpoint and must face strict First Amendment scrutiny. In this host-led episode, Curt Widhalm, LMFT, and Katie Vernoy, LMFT, unclench their jaws and work through what the decision says, what it does not say, and what it means for therapists who practice ethically and affirmingly.

The ruling did not make conversion therapy mandatory, and it did not declare the practice safe, effective, or ethical. What it did was treat talk therapy as protected speech rather than regulable conduct. That reframing worries many clinicians, both because of what it signals about the deprofessionalizing of therapy and because of what it does to the state guardrails the field has long relied on to keep harmful practice in check.

Curt and Katie trace the majority opinion, the Kagan and Sotomayor concurrence, and the Ketanji Brown Jackson dissent, explain the strict scrutiny test at the center of the case, and offer concrete, practical steps therapists can take to protect clients and practice loudly and clearly in a post-Chiles landscape.

Transcript

Click here to scroll to the podcast transcript.

(Show notes provided in collaboration with Otter.ai and Claude AI.)

In This Podcast Episode: Conversion Therapy, Free Speech, and What Chiles v. Salazar Means for Therapists

Curt and Katie examine how the Supreme Court’s decision in Chiles v. Salazar reshapes the line between speech and treatment in mental health care. They look at how Colorado’s conversion therapy ban was framed, why the majority treated talk therapy as pure speech, how the strict scrutiny test (a compelling state interest plus the least restrictive means) drove the outcome, and why the ruling lands as a blow to hard-won protections for LGBTQ+ youth even as it stops short of endorsing sexual orientation change efforts (SOCE). They also sit with the harder, longer-term question the case raises: what happens to a profession when the state can no longer set a guardrail on harmful practice before harm has already occurred.

Key Takeaways for Therapists: Conversion Therapy Bans, Protected Speech, and Professional Responsibility After Chiles v. Salazar

“It forces us to sit with this really uncomfortable truth that a practice can be overwhelmingly rejected by consensus, by the research, and it can be seen as dangerous and unethical, yet it remains completely legal and constitutionally protected.”

— Curt Widhalm, LMFT

The Court ruled 8 to 1, but narrowly. The decision held that Colorado’s law, as applied to Chiles’s talk therapy, restricted speech based on viewpoint and was not given rigorous enough First Amendment scrutiny. The case was reversed and sent back to the lower courts, not finally resolved.
The ruling does not legalize or mandate conversion therapy. It does not call the practice safe, effective, or ethical. The Court did not dispute the documented harms. It decided a First Amendment question about how Colorado wrote and applied its ban.
Talk was treated as separate from conduct. The crux of the case was whether talk therapy is pure speech or part of regulable medical conduct. In an opinion by Justice Gorsuch, the majority treated the talk therapy at issue as speech, which is what triggered the heightened scrutiny that doomed the law.
Colorado’s ban failed the strict scrutiny test on two fronts. The test asks for a compelling state interest and the least restrictive means. The Court found that the state did not establish imminent harm from the talk therapy itself, and that a viewpoint-specific restriction on speech was not the least restrictive way to act.
The concurrence and the dissent show where this goes next. The Kagan and Sotomayor concurrence leaves open a path toward viewpoint-neutral regulation that better defines where speech becomes treatment. Justice Jackson’s dissent argues that talk therapy is medical treatment subject to reasonable state regulation, which is where most professional associations have landed.
Accountability has shifted to the back end. Rather than preventing harmful practice up front, oversight now leans more heavily on after-the-fact liability and board discipline once a client has actually been harmed. That is a real change from the preventive guardrail therapists assumed a license provided.
A license signals less than it used to. Curt’s harder reflection is that the decision chips away at the idea that holding a license guarantees a shared, do-good standard of practice, leaving the profession looking more like a collection of people who passed the same test.

“In truth, little has changed for those of you who are practicing well. It really only provides a loophole for folks who are trying to do harmful care, and that infuriates me, but it doesn’t change how I practice.”

— Katie Vernoy, LMFT

Breaking Down the Chiles v. Salazar Decision

Curt and Katie are careful throughout to separate what they personally believe from what the decision actually holds. Here is how they trace it.

The Case and the Question

Kaley Chiles, a licensed counselor in Colorado, challenged the state’s law, arguing that its limit on talk therapy aimed at changing a minor’s sexual orientation or gender identity was an unconstitutional restriction on her free speech. Colorado’s law, like those in many other states, prohibited licensed clinicians from using treatment to try to align a minor’s identity with their sex assigned at birth, while still permitting affirming care. The central question became whether that talk therapy is speech or regulable conduct.

Speech vs. Conduct

Before the decision, much of the field understood what therapists do, which is mostly talk, as largely indistinguishable from treatment and therefore regulable like any other medical practice. Chiles argued that talk and conduct are two distinct things. The majority agreed that the talk therapy at issue was pure speech, and found that Colorado engaged in viewpoint discrimination by allowing speech that points a client toward gender transition while banning speech that points toward their biological sex.

The Strict Scrutiny Test

Curt walks through the two-part test the Court applied. The state must show a compelling interest, and it must use the least restrictive means. He uses Tarasoff duties as a contrast: those survive scrutiny because they address imminent, reasonably identifiable danger in a narrow way. Colorado, by comparison, did not establish that this talk therapy creates imminent harm, and a viewpoint-specific speech ban was not the least restrictive option. The law fell short on both points, and the line for state intervention shifted toward conduct rather than speech.

The Concurrence and the Dissent

The Kagan and Sotomayor concurrence suggests that a viewpoint-neutral law, one that defines harmful practice rather than restricting a single viewpoint, might survive. Justice Jackson’s dissent, which aligns with where most professional associations sit, frames talk therapy as medical treatment that should be subject to reasonable regulation like any other care, and warns that the decision risks leaving speech-based treatments effectively unregulated. Katie names her own worry plainly: waiting until harm has occurred before there is any accountability is not a comfortable place for the profession to be.

What Chiles v. Salazar Means for Your Practice

Curt’s central message is that this absolutely sucks as a new reality, but therapists do not have to roll over and let it take over the field. If anything, the ruling is a call for individual practitioners to be clearer, louder, and more skilled about the care they provide.

Ditch the euphemisms and be explicit. Instead of vague language like “inclusive space,” use clear, searchable, unambiguous terms on your website and directory profiles, such as gender-affirming practice or anti-SOCE practice, so clients and parents can see exactly how you work.
Signal safety where clients are looking. Spell out in your FAQ or practice policies how you work with vulnerable clients, including LGBTQ+ youth, so that fit is clear before anyone books a first session.
Sharpen your trauma-informed LGBTQ+ skills. With more clinicians likely to offer SOCE-style talk therapy, more people may be harmed and later seek out affirming care. Build the clinical skill now to support them well.
Document your evidence-based, client-centered frameworks. Note in your clinical records how your affirming interventions align with established clinical guidelines and standards of care.
Know that your associations are aligned with ethical practice. Major professional associations have renounced the decision and continue to treat harmful care as grounds for discipline and liability. For clinicians already practicing well, very little changes day to day.

Resources on Chiles v. Salazar, Conversion Therapy, and Affirming Care

We’ve pulled together resources mentioned in this episode and put together some handy-dandy links. Please note that some of the links below may be affiliate links, so if you purchase after clicking below, we may get a little bit of cash in our pockets. We thank you in advance!

The full Supreme Court opinion in Chiles v. Salazar (decided March 31, 2026): supremecourt.gov
Statements from the major professional associations responding to the decision:

American Psychological Association (APA)

APA also has a longer explainer with updated post-ruling guidance

APA amicus brief landing page (joint brief with APsychA, NASW, and others)

American Psychiatric Association (APsychA)

National Association of Social Workers (NASW)

NASW Illinois Chapter

American Counseling Association (ACA)

American Association for Marriage and Family Therapy (AAMFT)

AAMFT’s position statements page

Relevant Episodes of MTSG Podcast

Meet the Hosts: Curt Widhalm & Katie Vernoy

Curt Widhalm, LMFT

Curt Widhalm is in private practice in the Los Angeles area. He is the cofounder of the Therapy Reimagined conference, an Adjunct Professor at Pepperdine University and CSUN, a former Subject Matter Expert for the California Board of Behavioral Sciences, former CFO of the California Association of Marriage and Family Therapists, and a loving husband and father. He is 1/2 great person, 1/2 provocateur, and 1/2 geek, in that order. He dabbles in the dark art of making “dad jokes” and usually has a half-empty cup of coffee somewhere nearby. Learn more at: http://www.curtwidhalm.com

Katie Vernoy, LMFT

Katie Vernoy is a Licensed Marriage and Family Therapist, coach, and consultant supporting leaders, visionaries, executives, and helping professionals to create sustainable careers. Katie, with Curt, has developed workshops and a conference, Therapy Reimagined, to support therapists navigating through the modern challenges of this profession. Katie is also a former President of the California Association of Marriage and Family Therapists. In her spare time, Katie is secretly siphoning off Curt’s youthful energy, so that she can take over the world. Learn more at: http://www.katievernoy.com

A Quick Note:

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Our guests are also only speaking for themselves and have their own opinions. We aren’t trying to take their voice, and no one speaks for us either. Mostly because they don’t want to, but hey.

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Transcript for this episode of the Modern Therapist’s Survival Guide podcast (Autogenerated):

Transcripts do not include advertisements just a reference to the advertising break (as such timing does not account for advertisements)

… 0:00
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Announcer 0:00
You’re listening to the Modern Therapist’s Survival Guide, where therapists live, breathe, and practice as human beings. To support you as a whole person and a therapist, here are your hosts, Curt Widhalm and Katie Vernoy.

Curt Widhalm 0:16
Welcome back, Modern Therapists. This is The Modern Therapist’s Survival Guide. I’m Curt Widhalm with Katie Vernoy, and this is the podcast for therapists about the things that go on in our practice, the things that go on in our profession, and the ways that we go about serving the clients that we serve. And we’ve been told since grad school that words have power. We’ve spent a number of classes, we’ve probably spent a number of sessions instructing people on how to make I statements, and just even the ways that words being ordered tends to help people to heal and improve their relationships, but apparently the Supreme Court has been listening a little bit too well, because with the recent Chiles versus Salazar decision, they just ruled that our words have so much power that they’re officially protected by the First Amendment.

Katie Vernoy 1:09
I took it as a, they thought that our words were less powerful and was it was just solely free speech and not treatment, but I digress.

Curt Widhalm 1:20
So we are having a collective gasp as a mental health community, and this has basically thrown a grenade into state conversion therapy bans. It’s a ruling that a lot of ethical affirming therapists are asking, wait, what does this mean for my practice, my profession, and when did SCOTUS become the supervisor of my counseling room? So we are here to kind of dive into what the Chiles v Salazar decision, we’re just going to call it Chiles for the rest of the episode, what it actually means, what it actually means for you, what it actually means for our profession, and we’re going to do the deep dive into this. So, unclench your jaws, drop your shoulders, listen. Curt and Katie are here.

Katie Vernoy 2:17
So, in March of 2026 the Supreme Court ruled eight to one that Colorado couldn’t stop a licensed counselor from doing conversion therapy, and on its face it is like a dagger in the heart, partially because of the I think initial perspective that it was seen as a de facto acceptance of conversion therapy, which is at this point pretty universally seen as really a horrible treatment, very harmful, not evidence-based, and so I think a lot of initial reactions were based on that, but as we’ve been able to unclench and take a deep breath, the piece that worries me is the freedom of speech element of it. I’ve been, we’ve been talking about this together for a few weeks, and reading through the materials, and trying to understand what’s going on, and I think a larger part of today’s conversation is going to be about therapy being seen as protected speech, as as free speech. My concern, especially paired with other things that are going on in the world, is that this is an element of deprofessionalizing our, our careers.That may be overstated. There may be some hope here. There is a concurrence that was filed by Kagan and Sotomayor that gives a pathway to how this might actually really only address the free speech issue and not make our therapy just talk, but especially initially Ketanji Brown Jackson’s dissent really sat where I sat, which is therapy is treatment and therapy as speech is not protected, and so I’m excited to jump into this, because I think there’s some nuance about freedom of speech, there’s some nuance about how professions, you know, professional associations, the licensing bodies regulate viewpoint, which I think is really interesting, and so I’m excited to dive into this, because it is so nuanced, it is, it is a really interesting kind of stack of questions that I think as a profession we need to start looking at and answering, and there’s parts I just really hate. So I think that the best way for us to get started is to talk through the decisions and then go into what it means for us as a larger profession and as individual professionals, but I want to make sure that we frame this as we usually do. Curt is the current chair of the ethics committee for the California Association of Marriage and Family Therapist. I am a member of that committee as well, and we are not speaking for CAMFT or that ethics committee. The other thing is we’re not attorneys, and so we’re also recommending that if you have specific questions about how this might apply to your own practice in your state, please contact attorneys to talk that through. But we’re going to, as folks who are interested in this, we’re going to talk through how we understand this and put forward some questions that I think our profession really needs to be digging into now to be able to sustain what we do in the way that we do it.

Curt Widhalm 6:14
So some of the background on this is just going to start with for a lot of professional license history, and as we speak, particularly towards healthcare, and particularly behavioral health, mental health care, whatever you want to refer to it as, is that what therapist say to clients is treated by the government as the standard of care. That there can be things that are dictated as far as all therapists can be expected to at least do these things. This is the baseline of what the state mandates. This is at least theoretically why we have licensing tests, is to be able to say everyone understands what at least the average therapist will do in most situations, and the state, therefore, is regulating our practice in the way that it would regulate any kind of medical practice, and what Katie was mentioning just a moment ago, is that there is treatment, and particularly around things like sexual orientation change efforts, SOCE, SOGI, gender identity, that there are aspects of this that are going to be in the way that it was framed, and I am going to say that I at various points in this episode, might sound like I’m talking out of both sides of my mouth. There is what I personally believe, and then there is what I understand out of this decision, and what is being said. So, if maybe there’s a little bit of disgust and despair when I’m saying things, that’s more of my personal views coming through, and obviously not necessarily in agreement with this, but this is how the decision is affecting us. SOCE, SOGI is framed as having multiple parts of the so-called treatment, and what this case largely boils down to is where, where the line is on where the state can intervene. Now, Colorado’s law, and this law is similar to many other states, was written that if you’re a therapist and you are trying to talk people into changing their sexual orientation, their gender identity to be aligned with their assigned sex at birth, you can’t engage in treatment with minors in this way. So the line is don’t talk about it. If clients come into you and they’re exploring these kinds of things, there’s some nuance to that version of it. But as a therapist, you can’t just flat out say I am going to change your gay child into a straight child.

Katie Vernoy 6:14
And the converse is not true, and that is you can affirm folks who are exploring gender identity and affirm identity and help them to transition theoretically.

Curt Widhalm 6:14
Correct, what happened was Kaylee Chiles, a licensed counselor in Colorado, she ended up suing the state of Colorado because her viewpoint on this was that this prohibited licensed counselors from engaging in this as a discussion in talk therapy. Now, a little bit ago, I was trying to say that this is framed as multiple parts to SOCE SOGI efforts, that there’s the talk therapy version of things, and then there is the physically abusing kids, retraining kids, all kinds of other very horrible behavioral

Katie Vernoy 7:27
Shock treatment.

Curt Widhalm 7:30
Exactly.

Katie Vernoy 7:30
Yeah.

Curt Widhalm 10:17
So Chiles’s argument is that the talk therapy end of this was an unconstitutional limitation on her free speech, that hey, it’s just talk, talk isn’t abusive. I’m assuming this is very sarcastic, so I’m assuming that this is what it boils down to.

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Katie Vernoy 10:44
Well and this seems to align with gender exploratory therapy and the “treatment” I’m putting that in air quotes that continues to talk and talk and talk and does not affirm someone’s gender identity or sexual orientation, and so it is seen as we’re just talking, we’re just exploring, and that can go on forever and ever, and it can, you know, cause its own harm. The conversation today is not about that, but that’s the way I understand it. Is that the way that you understand it, Curt?

Curt Widhalm 8:54
Yes.

Katie Vernoy 7:31
Okay.

Curt Widhalm 8:54
So prior to this decision, what Katie was referring to, what a lot of us in the fields were looking at, what we do as treatment. That the talk, which is what most of us do most of the time, is indistinguishable from conduct, and Chiles’s argument is that those were two distinct things, talk is talk, behavior is behavior, and this is really where the crux of the case ended up being, and what led the Supreme Court to decide eight to one is that talk and conduct are two separate things, that talk therapy is pure speech, and therefore the government can’t place limitations on it.

Katie Vernoy 8:54
And more specifically, there needs to be stricter scrutiny of whether First Amendment can be those rights can be withheld, so the concurrence that Kagan and Sotomayor put forward is that if it had been viewpoint neutral, potentially this would have been a harder question. It’s the fact that only one viewpoint was restricted and was restricted in such a way. So I think there’s there’s therapy is speech, and then there’s also viewpoint is not treatment, so I think there’s a couple of things going on here.

Curt Widhalm 10:29
And one of the big keys is what you’re talking about here, which is the strict scrutiny. That there’s a number of court cases that are kind of tangentially related to trials that we’re not really going to get into here. At some point, I’ll probably put out something that puts this all together, but the key phrase that you’re talking about is strict scrutiny, and some of these tangentially related court cases are things that therapists have to say, and in cases like SOCE bans, things that therapists can’t say. And the strict scrutiny test is how some things can be allowed or can be forced and other things can’t. For example, just about every state has some version of the Tarasoff warnings that when a therapy client communicates to a therapist an imminent harm, death, severe bodily injury to a reasonably identifiable victim or victims. There are things that a therapist has to do in those situations, and that’s because it passes the strict scrutiny test. Now, the strict scrutiny test has two parts to it. Number one, the state has to have a compelling interest. So this is something where the state is really about keeping people alive in an imminent sort of way. I’m saying this intentionally in this way because we have just spent a month of episodes talking about how harmful all of the conversion therapies and things that all of our clients, as we’re coming to a close in Pride Month, why we’re celebrating all of the work and the being from this community and being allies in this community. I know that it tremendously leads to suicide, a lot of suicidal ideation, a lot of trauma responses across life, but the state of Colorado failed to say that there is an imminence in participating in this kind of talk therapy treatment, so it failed that part of the strict scrutiny test.

Katie Vernoy 10:04
Because it didn’t look at it and didn’t have evidence for it.

Curt Widhalm 10:08
It didn’t have evidence that SOCE leads to imminent death.

Katie Vernoy 15:31
Okay.

Curt Widhalm 15:33
The other part of the strict scrutiny test is that it has to take place in the least restrictive means. So if we use something like Tarasoff again, we are making attempts to warn reasonably identifiable victim or victims. We’re making attempts to have law enforcement intervene with the client. We’re not necessarily broadcasting out on every radio station and every TV station that this person is out there, we’re not arresting someone, we’re trying to do this in the least restrictive way. So, what the Supreme Court is saying, as far as this strict scrutiny test, is the state of Colorado failed to number one prove that there was a compelling state interest, and number two is the least restrictive place in banning this isn’t in preventing therapists from talking about this, the least restrictive place is preventing the conduct actions, all of those abuse actions, that’s where the line moves to.

Katie Vernoy 16:42
While I understand all of that, the concern that I think many of us face, and I’ll acknowledge it here, as Curt and I continue to walk this line of explaining this thing, while also trying to be true to what we believe. Waiting until there is harm before enforcement is not great, and I think that’s what is being seen at this point, is that there is back-end accountability. If you actually harm a kid, they’re just because you had free speech doesn’t mean you won’t have some sort of liability, you won’t get disciplined, and so there’s this element of keep talking, you can say what you want, but you might have consequences if harm is actually committed.

Curt Widhalm 17:40
And so what this means, and this was written in the majority opinion by Justice Gorsuch, that the Colorado law engaged in viewpoint discrimination because it allowed for therapist to say words that point a client towards gender transition, but it banned words pointing them towards their biological sex. And what this means is because it’s in this over, over reactive, over corrective, the least restrictive place there. This is where it really challenges the idea of what our profession means, that there’s a state guardrail that we’ve always kind of relied on that says hey, other therapists are going to uphold at least some kinds of standards in being able to support people, and we can rely that because I have a license and because I at least treat people well in my practice, that other people who hold similar licenses to me can also be trusted, because we’ve all had to meet the same rigorous challenges that our licensing bodies and our respective jurisdiction places say, hey, you can trust us, because we, as the state, are holding these people accountable. And this is really, I think, where the decision isn’t making SOCE legal, it’s not making it a mandatory kind of treatment, and in fact, we’re probably going to see a lot more therapist pop up who are engaging in at least the talk therapy version of these kinds of things, and that’s hard, because what it has done is it has made our profession less of the rigorous do-good aspirational ideals all of the time, and more of a collection of these are all people who managed to pass a test.

Katie Vernoy 19:47
Mmmm. Yeah.

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Katie Vernoy 19:52
I think there’s an argument that some of that’s already been happening, and this just is SCOTUS approved. But it is sad. I think there is this idea that when we aspire to be ethical and do evidence-based positive align treatments, that that’s a very different profession to be in than a group of folks debating what seems to be established baseline treatment.

Curt Widhalm 20:36
Well, it forces us to sit with this really uncomfortable truth that a practice can be overwhelmingly rejected by consensus, by you know, the the research, and it can be seen as dangerous and unethical, yet it remains completely legal and constitutionally protected. And…

Katie Vernoy 21:01
Because, because it has been minimized to the term speech versus treatment.

Curt Widhalm 21:10
And so you know there have been all kinds of things being said by all of the major professional associations, and we’ll include links to their statements in our show notes over at mtsgpodcast.com, that renounce the Supreme Court’s decision on this and provide all kinds of evidence that says this is a slippery slope down to very well researched and dangerous protections against people. People have been harmed, and are going to be harmed even more. And I think I want to be able to kind of talk about what this means for those of us who aren’t running headlong into this very stupid practice, and what it means for the rest of us in this profession.

Katie Vernoy 22:04
Yeah, so to finish out just talking about the decision and what was written, I think it’s important to briefly talk about the concurrence, and then also the dissent, because I think the dissent is where the professional associations are sitting. The concurrence, I think, opens the door for looking at how do you adjust these rules, these bans to be viewpoint neutral, and I don’t know what that is. I’m not a legal scholar, but being able to to help define the line between speech and treatment more effectively, so that some of this treatment masked as just us talking does get called out, and that’s what the Kagan Sotomayor concurrence, I think, allows for. Don’t just limit one viewpoint, actually define what it is that’s harmful. The dissent is interesting, and it’s really where I was landing initially. I’ll read a few pieces here that I think are really worth reading aloud. “Chiles is not speaking in the ether; she is providing therapy to minors as a licensed healthcare professional. This is treatment talk therapy is medical treatment. So, why wouldn’t such speech-based medical treatments be subject to reasonable state regulation like any other kind of medical care? In the context of medical practice, we insist upon competence, not debate, and my biggest fear this decision might make speech-only therapies and other medical treatments involving practitioner speech effectively unregulated.” So what we need to be looking at, in my opinion, is how do we make sure that we are part of the solution in figuring out where speech turns into conduct or treatment becomes regulatable according to the law. Because while I recognize that I want to be able to say what I want to say, I want to be able to be a person out in the world and speak my viewpoints. We have a podcast, I want my freedom of speech upheld. I recognize that when I walk into the therapy room, you know, virtual or in person, my ability to speak my mind is greatly changed, and I don’t expect the Supreme Court to allow me to say whatever the heck I want, just because it is a debate that’s going on in the popular culture. I want, I want the higher level of regulation that Jackson’s talking about. And that’s what the, that’s what a lot of the professional associations are aligning with. This is treatment, this is not speech.

Curt Widhalm 22:57
Part of this question really comes down to: Where does the speech end up turning into conduct?

Katie Vernoy 23:13
Exactly.

Curt Widhalm 23:13
And this is, I think, going to be debated until whatever the follow-up case is.

Katie Vernoy 23:59
Yeah.

Curt Widhalm 23:59
And whichever courts that that is going to be filtered through. I’m going to reiterate, I am not an attorney, I’m somebody who looks at legal stuff for therapist for fun. So.

Katie Vernoy 23:59
And I talk to you a lot. I get to have some of these wonderful conversations with you all of the time, so it is kind of fun.

Curt Widhalm 22:04
So, the without getting super into the weeds on things, some speech is essentially just the operational mechanism of an action. For example, a doctor writing a prescription using words on paper, that act is prescribing medicine, that is, that is speech. It is just an operational here is a thing.

Katie Vernoy 23:59
And still, because they are doing a form of conduct, which is prescribing, that is regulated.

Curt Widhalm 22:04
Well. Yes. Now, if the doctor in this case is prescribing a medication that doesn’t exist, that’s fraud, and that, and that is still illegal in cases like this. So, if a therapist uses speech to commit fraud, for example, billing for hours that they didn’t work, or sexually harassing a client, those laws are going to treat that still as speech that it’s criminal.

Katie Vernoy 23:13
Yes.

Curt Widhalm 27:09
The more abstract end of this is really where I’m curious, where things are going to get teased out, because there’s this blurriness that we’re all trying to work through, but where does speech end up creating actual injury, and I think in this case there’s going to be protected speech, and then there’s still going to be regulatable speech, and I think it’s going to come down into some of the framing. So I think where the line has now moved is, and caveat, I am not saying this, I’m using it as an example, I think that where this is now protected speech is for a SOCE therapist to say, as your therapist, I believe your anxiety is caused by your gender identity, and we should work to align your feelings with your biological sex. I think that is now a legally protected viewpoint speech under the Chile’s decision.

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Katie Vernoy 28:18
Until it causes harm.

Curt Widhalm 24:42
Now there is where this blurry line is, and where I think it’s still regulable is instructing a vulnerable, acutely depressed minor to cut off all ties from their supportive and affirming parents, or utilizing any kind of shaming or bullying disguised as therapy that still crosses the line into actionable negligence.

Katie Vernoy 25:54
At this point, that’s back-end regulation, that’s the least intrusive, is this caused harm, so now you’re in trouble.

Curt Widhalm 25:54
We as a profession operate on this word imminent. There’s things that we have to do that require a certain amount of trying to prevent future behaviors, but it’s mostly in the terms of things such as Tarasoff. The rest of what we do is still very much tied up in confidentiality, and while those of us with reasonable viewpoints on things that say yeah, all of the evidence points that to this eventually causing harm, there’s not that state guardrail, that state line that’s there to be able to protect us as much anymore, and I think that this falls more in line with state boards respond to when harm has already happened, not at the potential of harm from therapists. We’ve talked about this in episodes before, when it comes to cognitive decline in older therapists, that until somebody has been harmed, the state doesn’t really have a chance or the opportunity or the mechanism to step in and actually prevent somebody from causing harm, even if they’re driving down harm highway in a harm mobile, shooting their harm weapons out at everything.

Katie Vernoy 26:41
Yeah, so one element of this is harm, and potentially this is an opportunity for folks to document harm, for clients to make complaints related to harm, so that there are, you know, the case law or the the regulation that at some point might become important in continuing this conversation. The other piece is that viewpoint neutral line, and I’ve been trying to think about how do you make this viewpoint neutral. My, my thought process, and maybe you have ideas. I know I’m throwing this at you right now. My thought is around coercion. It’s about not getting informed consent. It’s about failing to inform folks about best practices or standard of care. I think that to me neutralizes it, and it’s also fairly vague, so I’m not sure where the open door from Kagan goes, as far as let’s make this neutral, but I think that is something that may be of help.

Curt Widhalm 31:36
I’m not sure I entirely agree with that, because I think that in order to craft something is just going to lead to a ban on all discussion around gender and gender identity with minors, whether it be affirming or not. And I don’t think that that is the right pathway forward. If anything, if this is the reality that we’re in now, I think that this is more of an opportunity for us as individual practitioners and putting continued pressure on our professional associations, but I have some pieces of advice for individual practitioners in the world that operates post Chile’s decision. And I think that some of this is not relying on your license as a state approval of safety, that there are extra steps that we have to do, leading into being a modern therapist, putting out how you work even more clearly, so ditch the euphemisms. Stop saying that this is an inclusive space, and actually use explicit, searchable, unambiguous words on your websites and your Psychology Today that says you are a gender-affirming therapy practice, or you’re an anti-SOCE practice. Make it clear that you are not one of the people who is going to be doing conversion therapy, even if it is disguised as talk, and and state that proudly, and signal that with safety. Put it in your FAQ section about how you work with vulnerable clients, and that way those clients and their parents can see how you end up working. I also think that if you’re really concerned about this, you should sharpen your trauma-informed skills in working with people from the LGBTQ+ community, because more people are going to get harmed as they are put into these practices, and you should have the clinical skills to be able to work with them if they feel that coming to a non-SOCE therapist is right for them in the future. Have those clinical skills, build on those. And I think lastly is adding into your clinical documentation articulating your evidence-based and client-centered frameworks, so if you are practicing affirming care, that your interventions align with established clinical guidelines. In other words, this absolutely sucks as a new reality, but we don’t have to roll over and just let this take over the field, that we can still continue to be loud voices about this, and while we can’t rely on the state to control other people’s practices, you sure damn well can make your practice loud and proud in how you go about working with clients from these vulnerable communities.

Katie Vernoy 34:53
And at this point, the professional associations will back you. They are aligned with that advice, they recognize that the landscape is changing. There are questions they’re going to need to ask themselves and sort through, and how they advocate, how they write their ethics codes, all of those things. But they are saying, if you do harmful care, you will be disciplined, you will be subject to discipline, you will be subject to liability, and so I think it is in truth little has changed for those of you who are practicing well. I love your advice, Curt, about loud and proud. Say those things, put those things to the forefront. I think it really only provides a loophole for folks who are trying to do harmful care, and that infuriates me, but it doesn’t change how I practice.

Curt Widhalm 35:53
You can find our show notes over to mtsgpodcast.com. Follow us on our social media, join our Facebook group, The Modern Therapist Group to continue on with us and other conversations. And until next time, I’m Curt Widhalm with Katie Vernoy.

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