SCOTUS May Determine Fate of “Conversion Therapy” Bans

The Supreme Court could decide in the coming weeks whether to take up a challenge to a Washington state law that bans therapists from trying to change the sexual orientation or gender identity of children.

Christian licensed marriage and family therapist Brian Tingley sued the Evergreen State in 2021, claiming a law barring licensed mental health professionals treating minors with gender dysphoria from recommending against gender transitions violated his First Amendment rights and infringed on his religious faith.

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The U.S. Court of Appeals for the 9th Circuit in January rejected Tingley’s attempt to overturn Washington’s ban on “conversion therapy” for children. The 2018 law was signed by Gov. Jay Inslee (D) to protect LGBT youth from what backers said were unproven and damaging efforts to convert sexual orientation.

“Washington’s law prohibiting licensed mental health providers from practicing conversion therapy on minors is not unconstitutionally vague,” the 9th Circuit wrote in its initial September ruling against the therapist’s request.

On March 27, Alliance Defending Freedom, a civil rights nonprofit firm, filed a petition to the Supreme Court to take up Tingley’s case, arguing in part that the law only provides a one-way discussion over gender transitions.

“What the 9th Circuit said is because counseling is a type of medical treatment, then the government can regulate it, even if they’re censoring speech in a viewpoint-based way,” ADF senior counsel John Bursch told the Washington Examiner, noting the Supreme Court and other circuits have rejected that approach.

“It’s very one-sided, it promotes transitioning, and prohibits any other options,” Bursch added.

Through the petition, Tingley’s counsel is asking the high court to reverse the appeals court decision that upheld a district court ruling to toss out Tingley’s challenge to the law.

Tingley has worked with a wide spectrum of clients, including those who desire counseling to help them “bring their hearts, minds and conduct in line with the teachings of their faith,” according to a summary of the case on ADF’s webpage.

The law threatens fines of up to $5,000 per violation, including suspension from practice and potentially permanent revocation of a counselor’s license.

The 9th Circuit’s decision is at odds with a July 2022 ruling by the U.S. Court of Appeals for the 11th Circuit involving a similar ban by Palm Beach County and the city of Boca Raton in Florida, creating a circuit split and potentially making the case ripe for Supreme Court interest. It takes at least four justices to grant a petition, and any approval of Tingley’s case would be scheduled for the court’s fall 2023 term.

Tingley’s counsel also wants the high court to revise a precedent the 9th Circuit relied on known as Pickup v. Brown , a 2014 ruling by the same court that upheld a similar ban in California.

The Supreme Court criticized Pickup by name in a separate case known as NIFLA v. Becerra,  holding that plaintiffs in the latter case were likely to succeed on their claim that a California law requiring crisis pregnancy centers to inform patients about state-assisted abortions violated the First Amendment.

“Speech should be protected under the First Amendment, even in the professional context, as it is in any other context,” Bursch said, noting the 9th Circuit “thumbs its nose” in the ruling against Tingley.

While Bursch underscored that having gender dysphoria is “real” and coincides with “difficult” consequences like mental health and suicidal ideation, he noted there’s emerging research that shows young people experiencing such difficulties may “naturally align their mind with their biological sex if left to their own devices.”

Outside of the United States, the Norwegian Healthcare Investigation Board recently ruled the country’s guidelines on the use of puberty blockers and gender reassignment surgeries should be revised to reflect a lack of sufficient medical evidence supporting such procedures, according to the Society for Evidence-based Gender Medicine.

Meanwhile, civil rights groups such as the Human Rights Campaign decry the forms of therapy Tingley and similar counselors offer as “a dangerous practice that targets LGBTQ youth and seeks to change their sexual or gender identities.” Washington is among 20 states along with the District of Columbia and Puerto Rico that have bans on conversion therapy.

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Due to the diversity and different walks of life of Tingley’s clients, Bursch underscored the Washington law not only harms the therapist but “hurts clients that are desiring this kind of speech because they believe that it’s what’s best for their welfare.”

“The government is hurting real people and that has to stop,” Bursch said.