By Ismail Royer

Any moral, reasonable human being would agree that lobotomies or electroconvulsive shocks to the brain are a cruel (and ineffective) way of trying to reduce same-sex sexual attraction. Yet not many years have passed since they were accepted by society as legitimate treatments for homosexuality.

In understanding the flaws of modern society’s approach, let’s first acknowledge that “homosexual” and “heterosexual” as categories of human beings are invalid and socially constructed. This is one of the few things that Foucault got right. As Michael Hannon of the Thomistic Institute has pointed out, such terms – and the classification of homosexuality as a psychological disorder within the Freudian framework – do not accurately reflect the reality of a person who experiences same-sex desires. Human beings are not divided into essential, immutable types based merely on the patterns of thoughts or desires they experience.

As a result, it was never possible to address unwanted same-sex attraction through any therapy premised upon those categories and the framework in which they are grounded, whether overtly as in the case of modern psychotherapy, or implicitly as in the case of religiously-themed approaches.

This does not change the fact, however, that revealed religion deems, and has always deemed, same-sex attraction to be contrary to sound nature and the reflection of a lack of order in the soul: an impulse sinful to act upon, and to be managed through prayer and the cultivation of good habits of the heart, mind, and limbs.

Thus, it follows that the believer in traditional religion who experiences same-sex attraction will seek guidance in cultivating those habits, as well as practical advice in managing his or her desires. The same goes for those experiencing unwanted discomfort with his or her God-given sex and the roles and expressions associated with it in society.

While many believers will naturally seek out pastoral counseling in dealing with unwanted same-sex attraction or confused sexual identity, others feel more comfortable working through their issues in a “third space” rather than with clergy or those associated with a house of worship. Such people often seek out therapists with specialized training in counseling who share their own faith – or who at least share their faith’s understanding of morality and human nature. 

In Colorado, however, and in 22 other states, this is illegal. 

Colo. Rev. Stat. §12-245-202, enacted in 2019, prohibits “conversion therapy,” which it defines as

any practice or treatment by a licensee, registrant, or certificate holder that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.

Colorado, however, makes an exception to its prohibition of helping those with unwanted same-sex attraction and sexual identity confusion. It allows licensed therapists to offer: 

Acceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as the counseling does not seek to change sexual orientation or gender identity; or…[a]ssistance to a person undergoing gender transition.

In other words, through the magic of definition, Colorado renders any therapy aimed at changing unwanted “behaviors or gender expressions” the equivalent of lobotomies and electroconvulsive shock. To be sure, for advocacy groups aiming to change public opinion, this is effective rhetoric. For individuals seeking relief from unwanted, intrusive thoughts and desires, however, and for those professionals who would help them, it is a policy failure and an instance of government overreach.

It’s no coincidence that the help which Colorado law prohibits is precisely the sort of help traditional religious believers might seek. This is reflected in the cultural discourse that is the backdrop of the law’s passage and the way that its advocates framed it. 

As LGBTQ Nation put it at the time, Colorado’s governor “signed a bill that would outlaw giving youth ‘conversion therapy,’ a harmful practice promoted by the religious right that claims to turn gay people straight.” Or as the Denver Post wrote in reporting on the bill’s passage, “even as cultural tides shift, some conservative Christian organizations continue practices that can be harmful to LGBTQ people.” 

This, of course, reflects the consensus in both popular media and professional organizations about “conversion therapy” and state laws prohibiting it. As Northwestern University’s Online Master’s in Counseling Program advised in an article posted in 2018, just as states like Colorado were passing such laws, 

some mental health professionals aligned with conservative religious groups continue attempting to convert gay and transgender people…While some in the mental health and religious communities will continue to push this harmful practice, the mental health community, overall, has evolved and continues to evolve.

Nor is it a coincidence that the exceptions allowed by Colorado law – affirming clients’ same-sex sexual desires or helping them undergo “gender transition” – correspond directly to progressive theology. Progressive Jewish, Christian, and Muslim groups all advocate for an “affirming” approach to these issues that dovetails with the legislature’s approved methods. For example, the Unitarian Universalist faith teaches that “living one’s identity, in terms of gender identity/expression, sex characteristics, and affectional/sexual orientation, is part of [one’s] free exercise of religion.”

Colorado’s legislative suppression of traditional theology and de facto endorsement of progressive theology puts therapists like Kaley Chiles in an impossible position. Ms. Chiles, a believing Christian who wants to help young people who seek her guidance grow comfortable with their bodies and avoid harmful medical interventions, can’t do so without losing her license.

Ms. Chiles sued the state of Colorado, arguing that Colo. Rev. Stat. §12-245-202 violates her Constitutional rights to freedom of speech and free exercise of religion. A divided panel of the U.S. Court of Appeals for the 10th Circuit ruled against her. The Supreme Court has agreed to hear her appeal.

In an amicus brief filed in the Supreme Court in support of Ms. Chiles, we at the Religious Freedom Institute (RFI) joined the Manhattan Institute, Jewish Coalition for Religious Liberty, and Orthodox Jewish therapist Dr. Dovid Schwartz, to argue that in enacting this law, Colorado intentionally endorsed progressive theological beliefs and targeted believers in the traditional religious morality of Judaism, Christianity, and Islam. This, we argue, violates the state’s duty under the Free Exercise and Establishment Clauses of the First Amendment to remain neutral on matters of religious belief.

Moreover, we argue, Colo. Rev. Stat. §12-245-202 substantially burdens believers in traditional Judaism and Islam. That is because “[t]hese faiths are built upon long-standing notions of the importance of biological sex,” and “require the distinction between male and female to remain clear and constant for the sake of each individual and the community as a whole.” This amounts to a burden on the practice of these faiths and on those believers “who may seek to become more comfortable with his or her biological sex.” Colorado’s law, however, “forces such a person either to seek therapy that will alienate him or her from the community or to forgo therapy altogether.”

Our brief also describes how laws mandating an “affirming” approach to counseling burden the religious exercise of licensed therapists like Dr. Schwartz, who have traditional religious beliefs and would offer guidance to those seeking his help. And we provide the Court with a statement from a licensed Muslim therapist represented by RFI:

Denying clients this service is contradictory to our very mission to elevate human suffering and contradicts our code of ethics because we are saying they are not entitled to help, in essence imposing another set of values on them. A Muslim therapist who is not allowed to assist clients with issues related to gender and sexuality in congruence with their and the clients beliefs would actively be harming the client.

As a result of these Constitutional infirmities, we argue, the law should face strict First Amendment scrutiny.

To be clear, we do not argue in our brief that Colo. Rev. Stat. §12-245-202 is constitutionally suspect merely because it has a disparate impact on those who hold to traditional religious beliefs or because it happens to correspond to progressive theology. Rather, we argue that the law was motivated by opposition to traditional religious beliefs, amounting to a “religious gerrymander.” The Supreme Court has held that the First Amendment protects against such “covert suppression of particular religious beliefs” and “governmental hostility which is masked, as well as overt.”

The Supreme Court will likely rule on Ms. Chiles’s case in June of 2026.

---

Ismail Royer is RFI’s Director of Islam and Religious Freedom.