Colorado is attempting to amend state law to target the harms of conversion therapy in light of Chiles v. Salazar.
Amended law creates a cause of action (with no limitations period) for damages (but not attorney’s fees) for harms caused by “sexual orientation or gender identity efforts” of licensed mental health professional. The bill attempts to define sexual orientation and gender identity efforts” in viewpoint-neutral terms. It prohibits therapy that “seeks to direct a patient toward a predetermined sexual orientation or gender identity outcome,” regardless “of the sexual orientation or gender identity the patient is directed toward. And it excludes from the definition therapy that explores sexual orientation or gender identity–whether assisting; “accepting, supporting, and understanding;” neutral; or “related to”–so long as it does not seek to direct the patient toward a predetermined outcome.
This sounds like the content-based/viewpoint-neutral approach that Justice Kagan profferred in her Chiles concurrence. By its terms, it would allow claims against affirming therapists with predetermined commitments to “make” the client adhere to a queer identity or orientation (not that any reputable therapists actually do this) as much as against therapists with predetermined commitments to “make” the client reject queerness. That one target of a law does not (in the real world) exist should not render the law viewpoint-discriminatory.
By creating a private right of action, Colorado potentially creates an S.B. 8-type situation. With no public enforcement of the new law, no therapist could bring a pre-enforcement EpY/§ 1983 action challenging the new definitions as the basis for a lawsuit. The bill also applies the new definition to the therapist-licensing provisions challenged in Chiles; thus Chiles or another therapist can pursue pre-enforcement litigation against using those provisions to target their licenses. As in the immediate post-WWH world (when SCOTUS allowed pre-enforcement actions against medical licensers), enjoining the licensers from acting against therapists does not enjoin private individuals from bringing private lawsuits and seeking damages. Or from using the threat of lawsuits to chill therapists from providing or performing harmful therapy. The private right of action thus could have its effect, at least until precedent overtakes events.
Not as good an act of revenge as our public-accommodations law. But pretty good. And another test of the neutral principles of WWH.