Supreme Court Justice Ketanji Brown Jackson has just wrapped up her summer vacation and is approaching a new term with her characteristic insights.

This Tuesday, Jackson and her colleagues engaged in oral arguments for the case Chiles v. Salazar. One of Jackson’s inquiries led attorneys to reference the First Amendment.

The lawsuit was initiated by Kaylee Chiles, a licensed therapist and evangelical Christian, who, under Colorado law, is restricted from discouraging clients from pursuing same-sex relationships or “gender reassignment.”

Jackson posed a clarifying question to Chief Deputy Attorney General Hashim M. Muppan, who was advocating for Chiles.

“Can I ask you one broad question? I’m curious why this regulation isn’t a functional equivalent to [United States v. Skrmetti]. It seems odd that we could arrive at different outcomes here, given that both constitutional provisions operate similarly.”

In the USA vs. Skrmetti case, the court ruled that “certain medical procedures for transgender minors are not subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment.”

“Well, the Skrmetti Act regulated based on age and treatment,” Muppan countered.

Jackson replied, “I see your point; however, in Skrmetti, a state attempted to ban gender-affirming care for minors, specifically through drug therapy, which was allowed. I understand the constitutional nuances, but states can enforce such bans.”

“Currently, some states want to prohibit talk therapy focused on gender issues. The First Amendment limits states’ ability to do so, which raises concerns about fairness,” Jackson concluded.

“Of course, all therapy could be seen as conversion therapy if it aims to change someone’s mindset or behavior. Colorado law maintains that psychologists can only align patients with ideas endorsed by left-leaning advocates,” a notion echoed by some critics.

“From a broad perspective, there shouldn’t be a comparison,” Jackson responded.

Muppan agreed, remarking on the critical nature of free speech in therapy. “It’s core to your practice, isn’t it?” Jackson probed, to which Muppan affirmed.

Jackson then noted, “It’s not necessarily in the state’s best interest to shield minors from certain potentially damaging treatments.”

This concept underscores Chiles’ defense: talk therapists don’t recommend medical or surgical actions based solely on discussions—they strictly deal with communication. While medical discourse is under state regulation, it must pass a rigorous scrutiny standard, which requires the government to prove that its actions are carefully crafted to advance significant governmental interests and are the least restrictive means to achieve those ends.

It makes one wonder how the Colorado debate might unfold.

“Your honor, the alteration and sterilization of children is indeed a pressing government interest, as it generates a new generation of dependent voters,” one could jokingly imagine.

Jackson approached Muppan with a methodical approach, displaying some difficulty in differentiating between regulating speech and prohibiting medical practices, as noted in various analyses.

At one moment, Jackson reflected, “I believe around 25 states have similar laws. Is there evidence substantiating the harm these regulations may cause?” It’s essential to remember that popularity does not equate to ethical soundness.

Interestingly, even Justice Elena Kagan of the Supreme Court raised questions regarding the constitutionality of Colorado’s statute.

Kagan illustrated her point with a scenario involving two doctors and a gay patient, discussing the ethical implications of differing therapeutic perspectives.

“If one doctor says, ‘I recognize you’re gay, and I’ll assist you in accepting that,’ and another states, ‘I know you’re gay, and I’ll help you change,’ isn’t that a matter of perspective discrimination?” Kagan proposed.

Defense counsel concurred with Kagan but suggested that healthcare is uniquely complex, as excluding one harmful practice indirectly suggests that remaining ones are safe.

Remember, in this context, “harmful behavior” might just be telling someone that they aren’t who they think they are.