How Can the Law Be Truly Neutral?

By David Glazer ’28

On March 31, 2026, the US Supreme Court ruled in Chiles v. Salazar that a Colorado law banning conversion therapy for minors violated the First Amendment. Conversion therapy is the practice of attempting to change a person’s sexual orientation or gender expression to align with heterosexual and cisgender norms. The court determined that the law constituted “viewpoint discrimination” because it allows therapists to validate a minor’s sexual orientation or gender identity while denying those therapists the right to persuade them to abandon those identities. At first glance, this reasoning reflects Constitutional principles: the state cannot favor one viewpoint over another. The state is neutral; therefore, it must treat all sides fairly. However, this decision raises the question of what happens when viewpoints are equal on their face, but the consequences of each are not.

Conversion therapy has been discredited by the majority of medical and psychological professionals, and studies show that the practice significantly increases the risk of depression, anxiety, and suicidal ideation among LGBTQ+ youth. As stated by Justice Ketanji Brown Jackson in her dissenting opinion, “The effectiveness of conversion therapy is nonexistent...persons who have undergone conversion therapy continue to experience PTSD, anxiety, and suicidal ideation.” The difference between “supportive” and “non-supportive” speech is not merely ideological; it is measurable in the mental health of young people. Treating these two speech types equally as two “viewpoints” ignores the fact that these two forms of speech create an asymmetry in their effects. Neutrality, in this case, serves to obscure harm.

In her dissenting opinion, Justice Jackson redefines the issue in these terms. She stated, “[I]n the medical setting, we require competence, not debate.” Indeed, the Court’s opinion wrongly equates the professional context with the public forum. A professional therapist holds specific licensing credentials and must adhere to ethical standards. These standards exist to protect these professionals’ patients. Healthcare, particularly mental healthcare, is provided in part through “speech.” Most therapists even explicitly practice “talk therapy.” To protect a pseudoscientific practice like conversion therapy is to exempt the conduct of healthcare providers from professional standards.

The tension between harm and neutrality appears in debates beyond the Supreme Court. To promote inclusivity and avoid division, educational institutions often adopt “institutional neutrality” pledges, vowing to avoid statements on external issues. However, schools, like healthcare institutions, are not spaces where all individuals hold equal power: they are structured environments where authority figures exercise significant influence over individuals in formative and often vulnerable stages of development. In both contexts, a duty of care requires not only protection of expression, but also active prevention of harm, making strict neutrality neither feasible nor ethically correct.

In attempting to create a neutral environment, educational institutions often enshrine collective silence on issues related to identity by discouraging students from expressing perspectives that may be seen as controversial. When schools avoid addressing topics like gender and sexual orientation, they are not being neutral; they are simply keeping existing norms and expectations in place. Students whose identities align with those norms may not even notice this silence. But for students whose identities differ from what is considered “normal,” that silence can feel like a message that they are not fully understood nor supported.

In both educational and therapeutic contexts, advocates of neutrality promote the idea that withholding judgment creates fairness. Neutrality is harmful under conditions of structural inequality when treating all ideas as equivalent can legitimize harm. By failing to distinguish between ideas with different outcomes, schools and courts risk legitimizing harm under the form of impartiality. Schools and courts should not abandon their commitment to free expression. The definition of neutrality and how it is applied must always be contextual. In settings that heighten the vulnerability of those who inhabit them (such as a mental health professional’s office), the impact of an idea on individuals cannot be separated from its content.

The decision in Chiles v. Salazar illustrates the tension between the written text of individual rights and the realities of our society. The potential for governmental overreach exists, but so do the negative consequences of applying a principle of neutrality to practices that pose a credible risk to individuals. The issue, as Jackson points out, is not whether ideas should be silenced; it is whether the government has a responsibility to regulate the expression of ideas. Laws such as Colorado’s conversion therapy ban do not “suppress viewpoints” but rather “regulate the practice of medicine.”

Neutrality, by promising a space free of preconceived notions about an individual’s worth, presents itself as objective and unbiased. However, by treating all perspectives as equally valid, institutions often fail to recognize the disparate impacts of those perspectives on an individual’s life. Thus, the question is not whether neutrality has value, but how it is defined and applied. Neutrality is not the absence of a viewpoint, and in fact often ends up quietly reinforcing the harms of the status quo.