Why Chiles v. Salazar is Important to Mental Health Counselors

You Good With That?

Because that's exactly what the State of Colorado did. They passed a law that said licensed Colorado therapists could not talk about a client's thoughts/feelings related to gender confusion unless it was to affirm the patient's delusion to transition; said that amounted to conversion therapy even though the client wanted to talk about it.

That's what the Chiles v. Salazar case is all about. The United States Supreme Court (USSC or SCOTUS) said that a State cannot tell a citizen what they can or cannot talk about. To do so is called "viewpoint discrimination" and it's an historical, legal no-no. Licensed therapist Chiles won and the USSC sent the case back to a lower court and instructed them to use "strict scrutiny" in their review of the case. That's a legal filter through which attempted restrictions on 1A rights almost never pass, and the smart money is on this case not surviving that threshold.

This is very good for Americans and especially mental health counselors.

As A Citizen: Free Speech 1A Rights

Every citizen has full 1A rights protections. That includes something called, "conscience protections" which is all about keeping the speech tyrants that would like to control your thoughts at bay. Your thoughts and beliefs are protected "speech". You have the God-given right to think, believe, and say anything you want to with only a very narrow list of exclusions developed throughout US history. Now let's apply what we know to the exercise of "delivery of services" in your practice.

As a Therapist: Delivery of Services (Professional Conduct)

As a licensed therapist (and citizen) you may stand on the sidewalk outside your practice and think and say anything you want. When you step inside your practice office and engage a patient you bring those same 1A rights with you BUT, everything you say and do in the delivery of services to that client is now viewed as "Professional Conduct".

Professional Conduct is subject to additional scrutiny by the State in which you are licensed and that includes your speech which is now recognized as one of the components of your delivery of service. The State is holding you and your delivery of services to an additional, higher level of accountability because the State is obligated to protect Joe Citizen.

The Sources of Oversight Authority

Oversight Authority of Delivery of Services, or Professional Conduct (same thing) occurs at the intersection of three contributing sources:

• State Code/Licensing Board Regulations (All of them)
• Ethics, Governing Conduct-
  • Your State's codified ethics
  • Any State-recognized Professional Organization ethics. (Your State may or may not recognize them. TX does not.)

PLUS,...

• Your 1A Free "Speech" as a component of your delivered services.

Let's Break This Down

This is a highly nuanced legal ruling and can be a bit confusing so let's break it down into bite-sized chunks.

1. Everything you do with a patient is viewed as "regulable conduct" by the State because that's the agreement you made with them when you signed your licensing papers.

2. "Speech", what you say in the professional delivery of services is viewed as a regulable component of your "conduct".

3. The State is regulating the overall professional conduct that occurs in your practice, not limiting your 1A rights. (Hang on!)

4. Speech is only addressed by the State in the context of its role in your delivery of services, with the limited and viewpoint neutral intent to ensure the safety of your patient.

Summary

Your 1A rights, as a legally recognized component of your Delivery of Services, are subject to constitutional and viewpoint neutral oversight by your State/licensing board of your Professional Conduct. The State straying from "neutral" is when viewpoint discrimination comes into play and is exactly what Chiles v. Salazar is all about.

So long as what you say does not run afoul of existing federal or state code and regulations (including codified ethics), and does not bring about harm to your client, you may say and discuss anything you deem professionally necessary and appropriate for your patient's care.

And if that's all just a bit too much to get your head around consider the wise words of one, Kathleen Mills LPC-S and co-founder of AMHP, "just know your dang rulebook and you'll be just fine!"