New Colorado Conversion Therapy Ban With Clever Mechanism Close To Passing

The bill uses a private right of action, a tactic previously used by Republicans to target abortion providers.

Erin Reed

On Monday, the Colorado Senate Judiciary Committee passed HB26-1322, a bill that creates a private civil right of action allowing survivors of conversion therapy to sue the practitioners who subjected them to it. The bill, which has no statute of limitations for such claims, would likely make the practice of conversion therapy financially prohibitive in the state. It comes in the aftermath of the Supreme Court’s 8-1 decision last month in Chiles v. Salazar, which found that Colorado’s 2019 ban on conversion therapy unconstitutional—effectively legalizing the discredited practice nationwide. The new bill has one final legislative hurdle to clear—the full Colorado Senate—before heading to Governor Jared Polis’s desk, though the governor has so far offered only lukewarm signals about whether he will sign it, saying he is “hopeful there is still time to construct a framework he could support.”

The bill targets what it calls “sexual orientation or gender identity change efforts”—defined as “any practice by a licensed mental health professional that seeks to direct a patient toward a predetermined sexual orientation or gender identity outcome, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of a particular sex or gender, regardless of the sexual orientation or gender identity the patient is directed toward.” The inclusion of “eliminate or reduce sexual or romantic attractions” is notable—conversion therapists have long used this framework to argue disingenuously that they are not trying to change a person’s sexual orientation, merely helping them manage unwanted feelings. The bill explicitly carves out any counseling or therapy that “provides acceptance, support, and understanding of a patient” or “facilitates a patient’s coping, social support, and identity exploration and development”—meaning therapists who support a patient’s own process of self-discovery, without steering them toward a predetermined outcome, would face no liability.

The bill uses a novel legal mechanism to target conversion therapy—a private right of action. Rather than the government banning conversion therapy outright, which is what the Supreme Court struck down in Chiles, the bill instead allows survivors to sue their practitioners directly, stating that “a person who suffered an injury as a result of sexual orientation or gender identity change efforts may bring a civil action for damages” against their conversion therapist. It also states that a lawsuit to recover damages can be commenced “at any time without limitation,” making its statute of limitations effectively endless. The mechanism may be insulated from the constitutional problem the Supreme Court identified in Chiles because the government is not restricting speech—instead, private citizens are seeking civil remedies for harm they suffered, the same way a patient can sue a doctor for malpractice. As Alejandra Caraballo, a clinical instructor at Harvard Law School, told Erin in the Morning after the Chiles ruling, “While the Supreme Court decision limits the abilities of states to regulate conversion therapy through professional standards, they did not limit the ability for states to protect LGBTQ youth from these abusive practices through tort or malpractice law.”

If the mechanism sounds familiar, it is because Republicans pioneered it to get around Supreme Court rulings they didn’t like—most famously in Texas’s SB 8, the 2021 abortion “bounty hunter” law. That law banned abortion after six weeks not through government enforcement but by allowing any private citizen to sue anyone who performed or aided an abortion for $10,000 in damages. The legal trick was simple: when abortion providers tried to challenge SB 8 in court, they couldn’t get an injunction because there was no government official to enjoin. Courts found that you can’t sue “the state” to block a law that only private citizens enforce. The Supreme Court effectively let SB 8 stand, and the strategy worked—abortion access in Texas collapsed virtually overnight even while Roe v. Wade was still the law of the land. Kansas used the same model in SB 244, which allows anyone to sue a transgender person for using a restroom that doesn’t match their assigned sex at birth. Now, Colorado Democrats are exploiting the same constitutional loophole in the opposite direction—using private civil enforcement to deter a harmful practice that the Supreme Court says the government cannot directly ban.

It is important to note that some have raised concerns the bill could be weaponized against gender-affirming therapists—with anti-trans groups arguing that helping a trans youth transition constitutes its own form of “conversion therapy.” But the bill contains multiple layers of protection against such misuse. Its carveouts explicitly shield counseling that provides “acceptance, support, and understanding of a patient.” The bill also has protections in its causation standard. To establish that conversion therapy caused harm, a court must weigh “the nature, duration, and intensity” of the efforts, “the age and vulnerability of the plaintiff at the time,” “the relationship between the plaintiff and the mental health professional,” and “expert testimony regarding the general psychological effects of sexual orientation or gender identity change efforts.” It is unlikely that judges will consider anti-trans activists to be considered medical “experts” on this topic.

LGBTQ+ organizations, activists, and Democratic lawmakers in the state have supported the bill’s passage. “This decision only reinforces the urgent need for state-level protections,” said One Colorado, the state’s largest LGBTQ+ advocacy organization. “[HB 1322] provides a pathway for accountability, allowing survivors to seek justice against those who administer this harmful practice. We remain committed to ensuring that those responsible for such profound damage are held accountable.” Rep. Karen McCormick, a Democrat from Longmont, was blunt about the bill’s intent: “The purpose of this bill is seriously to send a chilling effect to any licensed professional therapist who may think about bringing that practice back.”

Conversion therapy is a discredited practice broadly decried by every major American medical organization. The APA concluded in a 2009 systematic review that the practice is “unlikely to be successful and involves risk of harm, including depression, suicidality, and anxiety,” and called for its total elimination. The United Nations has deemed conversion therapy a form of torture. A 2020 study published in the American Journal of Public Health found that LGBTQ+ youth subjected to conversion therapy were more than twice as likely to report attempting suicide. For transgender people specifically, conversion therapy often takes the form of so-called “gender exploratory therapy,” a rebranded approach that seeks to convince trans youth they are not actually transgender, keeping transition just out of reach by tricking trans youth that it might be offered if they jump through endless hoops while intending to deny it the entire way.

The bill now heads to the full Colorado Senate for a floor vote, where Democrats hold a 23-12 majority and passage is expected. Coloradans who support the bill can contact their state senator through the Colorado General Assembly’s legislator lookup tool. If the Senate passes the bill, it will go to Governor Polis, whose signature remains the final and most uncertain step. Polis, the first openly gay governor elected in the United States, signed the original 2019 conversion therapy ban and has called the practice “a scam and a waste of people’s hard-earned money”—but his office has stopped short of committing to sign this bill, saying only that he is “hopeful there is still time to construct a framework he could support.” What changes, if any, the governor is seeking remain unclear. The bill includes a safety clause that would make it take effect on July 1, 2026, and would exempt it from voter referendum. If signed, Colorado would become the first state in the country to use a private right of action to combat conversion therapy in the wake of the Supreme Court’s ruling.