Appeals Court Upholds Talk Therapy Under First Amendment

GRAND RAPIDS, MI – Last week, the U.S. Sixth Circuit Court of Appeals ruled 2-1 that talk therapy counseling used to treat minors with unwanted gender confusion is speech protected by the First Amendment. The appeals court panel issued a preliminary injunction temporarily blocking a 2023 Michigan law that banned minors from talk therapy, which is often misnamed as “conversion therapy.”

In Catholic Charities v. Whitmer, a group of Catholic organizations and a private counselor challenged Michigan’s HB 4616 as a speech-based restriction because it barred any therapy seeking to change minors’ sexual orientation or gender identity to align with their birth sex. However, it permitted counseling that assists with accepting a person’s gender confusion. Violations of the law for therapists included possible loss of a medical license and fines up to $250,000.

“The plaintiffs here offer counseling in the form of ‘talk therapy’: literally, spoken words and nothing more,” wrote Circuit Judge Raymond Kethledge. “We hold, therefore, that HB 4616 is subject to the strictest of scrutiny, under the First Amendment, as a content- and viewpoint-discriminatory restriction upon speech.” The panel blocked the law stating the plaintiffs are “likely to succeed” on their First Amendment merits. The ruling reverses a lower court decision to deny an injunction and allows the case to proceed in the lower court toward a permanent decision.

Judge Kethledge noted that HB 4616 wandered into “a constitutional no-man’s land.” He wrote that the Michigan law “discriminates based on viewpoint” by permitting speech on gender confusion to only the viewpoint the “government itself approves.”

“…the Michigan law codifies ‘a particular viewpoint—sexual orientation is immutable, but gender is not—and prohibit[s] the therapists from advancing any other perspective,’” reads the opinion. “For when the government targets ‘particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.’”

While the state of Michigan argued that HB 4616 regulated “conduct” rather than speech, the appeals court rejected that argument stating the law regulated a specific message and aimed to punish therapists solely on a message that reflects the “moral beliefs of therapist and client alike.”

“And on this issue the law is clear,” concluded Judge Kethledge. “…the Michigan law restricts speech, not conduct.”

The new ruling adds to a split in the circuit courts regarding whether state regulation banning talk therapy is constitutional. In October 2025, the U.S. Supreme Court heard oral arguments in a challenge to a similar Colorado law that could determine the fate of the 23 state-level talk therapy bans nationwide. Many of the Justices seemed skeptical that talk therapy falls under mere conduct and not speech and were wary the law was employing “viewpoint discrimination. Justice Amy Coney Barrett also scrutinized how a state can just “pick a side” when there are competing medical views. The High Court is expected to decide the case by June 2026.

Liberty Counsel led the nation challenging these counseling bans and filed the first legal challenges in 2012 in California (Pickup v. Newsom) and New Jersey (King v. Christie). While the Ninth and Third Circuit Courts of Appeal upheld these bans for different reasons, in 2015 the U.S. Supreme Court nullified both decisions when it struck down California’s law that attempted to regulate the speech of crisis pregnancy centers (NIFLA v. Newsom), in which Liberty Counsel represented the crisis pregnancy centers.

Liberty Counsel also won the first case in the nation striking down these counseling bans in Florida. In both Otto v. City of Boca Raton and Vazzo v. City of Tampa, the Eleventh Circuit Court of Appeals struck down city ordinances that prohibited licensed counselors from providing voluntary talk therapy to minors seeking help to eliminate unwanted same-sex attractions or gender confusion because they were unconstitutional under the First Amendment. These cases set up the conflict with the Colorado case that provided the opportunity for the Supreme Court to take up the matter.

Chiles is a licensed mental health counselor in Colorado who treats clients with issues related to addiction, trauma, gender confusion, and sexual attraction. However, the Colorado law in question authorizes fines of up to $5,000 per violation and suspension or even revocation of the counselor’s license for attempting to help a minor overcome unwanted gender confusion or same-sex attractions.

Liberty Counsel Founder and Chairman Mat Staver said, “The Sixth Circuit has rightly ruled that laws restricting counselors and clients to only one viewpoint violate the First Amendment. Talk therapy is speech, and the government has no authority to restrict that speech to just one viewpoint. The ruling allows therapists to engage in professional, compassionate counseling giving children a path to alleviate their mental health issues. Counselors and clients should have the freedom to choose the counsel of their choice and be free of government censorship.”

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