Background
Wyatt Bury and Pamela Eisenreich are Missouri-licensed counselors who challenged ordinances enacted by Kansas City and Jackson County prohibiting conversion therapy with minors. The ordinances defined “conversion therapy” broadly as any practice seeking to change sexual orientation or gender identity, but carved out certain counseling activities. Kansas City also enacted a Public Accommodation Ordinance prohibiting discrimination in counseling services based on sexual orientation or gender identity, and prohibiting communications that certain clients or patronage are “unwelcome.”
The counselors sued, seeking preliminary injunction and raising First Amendment free speech challenges, among other constitutional claims. The district court largely denied the preliminary injunction request and dismissed most claims, including the free speech challenge to the conversion therapy ordinances, reasoning that the ordinances regulated professional conduct rather than speech.
The counselors appealed. After briefing, the Supreme Court decided Chiles v. Salazar, 146 S. Ct. 1010 (2026), addressing a similar Colorado conversion therapy statute. Chiles rejected the conduct-versus-speech distinction that had been central to the district court’s dismissal.
The Court’s Holding
The Eighth Circuit reversed the district court’s dismissal of the counselors’ First Amendment free speech claims. The panel found that the Supreme Court’s decision in Chiles directly undermined the reasoning in the district court’s order. Chiles held that Colorado’s conversion therapy statute regulated “speech as speech” rather than speech incident to conduct, and therefore triggered strict scrutiny under the First Amendment based on its content- and viewpoint-discriminatory nature.
The court noted that Kansas City and Jackson County had pressed the same speech-conduct distinction before both the district court and the appellate court—the same distinction the Supreme Court had rejected in Chiles. The Eighth Circuit found it appropriate to reverse the dismissal and remand to the district court to reconsider the counselors’ complaint and preliminary injunction request in light of Chiles’s controlling precedent.
Specifically, the court reversed dismissal of: (1) Count 1, the free speech challenge to the Counseling Ordinances; (2) the free speech challenge portion of Count 2, regarding the Public Accommodation Ordinance; and (3) the vagueness challenge in Count 5. The case was remanded for further proceedings consistent with the panel’s opinion.
Key Takeaways
- Chiles v. Salazar controls: Laws prohibiting conversion therapy regulate speech, not professional conduct, and are therefore subject to strict scrutiny under the First Amendment.
- The conduct-versus-speech distinction: Government cannot evade First Amendment scrutiny by characterizing speech restrictions as regulation of professional conduct when the restriction targets the speech itself.
- Content and viewpoint discrimination: Conversion therapy ordinances are vulnerable to First Amendment challenge as content-based and viewpoint-discriminatory regulations of speech.
- Preliminary injunction standard: The district court must reconsider the counselors’ preliminary injunction request on remand, applying the legal standards established in Chiles.
Why It Matters
This decision signals that Chiles v. Salazar will have immediate and broad application to conversion therapy bans across the country. Municipalities and states that have enacted similar restrictions now face serious constitutional vulnerability. The Supreme Court’s rejection of the professional-conduct characterization eliminates what had been a primary defense strategy in litigation challenging such ordinances.
For counselors and medical professionals, the decision clarifies that First Amendment protections apply to therapeutic speech and recommendations, even in regulated professions. The remand suggests the district court will likely need to grant at least a preliminary injunction, preventing enforcement of these ordinances during ongoing litigation. The case will be closely watched by jurisdictions considering or defending similar conversion therapy restrictions.