Supreme Court rejects challenge to law banning conversion therapy
The Supreme Court said this on Monday wouldn’t hear a First Amendment challenge to a Washington state law banning professional counseling services intended to change a minor’s gender identity or sexual orientation.
Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh disagreed.
The challenged law bans licensed therapists there from performing conversion therapy, which is defined as “attempts to change behavior or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” The law allows counseling that promotes “acceptance, support and understanding.”
Many states have similar laws, which are supported by leading medical groups. Brian Tingley, a licensed family counselor, challenged the constitutionality of the Washington state law in federal court, saying it violated his rights to freedom of speech and the free exercise of religion.
In dissent, Justice Thomas wrote Monday that the question posed by Mr. Tingley’s appeal was substantial and deserved the Supreme Court’s attention.
“This petition asks us to consider whether Washington can censor counselors who help minors accept their biological sex,” Judge Thomas wrote. “Because this question has divided the appellate courts and strikes at the heart of the First Amendment, I would grant a review.”
In a separate dissent, Justice Alito agreed that the case warranted review.
“This case presents an issue of national importance,” he wrote. “In recent years, twenty states and the District of Columbia have passed laws banning or restricting the practice of conversion therapy. There is no question that these laws restrict speech, and any restrictions on speech deserve careful scrutiny.”
Judge Kavanaugh noted that he would have granted review, but gave no reasons.
A three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled against Mr Tingleysaying that the government was free to regulate the conduct of medical professionals.
“States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because these treatments are administered via speech rather than a scalpel.” Judge Ronald M. Gould wrote for the panel.
He added that the law only regulated Mr Tingley’s professional conduct and only when minors were involved. The law, the judge wrote, allowed Mr. Tingley to communicate with the public about conversion therapy, to express his personal opinions to all of his patients, to perform conversion therapy on adults and to refer minors to providers who were not be licensed by the state.
Mr. Tingley is represented by Alliance Defending Freedom, a conservative Christian law firm and advocacy group that has litigated many cases for clients who oppose abortion, insurance coverage for contraception, and gay and transgender rights. The group has won a string of victories at the Supreme Court, most recently on behalf of a Colorado web designer who said she didn’t want to create websites celebrating same-sex weddings.
In a petition to request a review of the case by the Supreme Court, Tingley vs. Ferguson, No. 22-942, the group said another victory would require a decision in Mr. Tingley’s favor. In 2018, the Supreme Court ruled that California cannot require religiously oriented “crisis pregnancy centers” to provide women with information on how to terminate their pregnancies.
In his dissent, Judge Thomas said precedent was relevant.
“This case is not the Ninth Circuit’s first instance limiting the First Amendment rights of medical professionals, and without the court’s review, I doubt it will be the last,” he wrote. “This court recently reversed the Ninth Circuit’s decision to uphold a law forcing crisis pregnancy centers to distribute government-authored notices.”
Mr. Tingley’s petition stated that the Ninth Circuit erred in treating the challenged therapy as conduct rather than speech.
“A private conversation is speech, not conduct,” the petition said. “And that doesn’t change just because one participant is a certified advisor and the other is his client. Otherwise, the government can turn the speech of almost any professional into conduct that can be silenced—something the First Amendment prohibits.”
Robert W. Ferguson, the attorney general of Washington state, responded that his state’s law was both consistent with Supreme Court precedent and a crucial tool for preventing serious harm.
“For decades,” the mandate of the state said, “this court has held that states can regulate the conduct of licensed professionals even if the regulations incidentally affect speech.” It added that “conversion therapy places minors at risk of serious, long-term harm, including an increased risk of suicide and depression.”