The Supreme Court refused on Dec. 11 to take up a challenge to Washington state’s ban on LGBT conversion therapy—over the objections of three conservative justices who dissented.
The therapeutic practices, which are banned in many states, aim to make patients heterosexual or identify as their biological sex.
Gender identity itself is a disputed concept. A lack of linguistic clarity has clouded legal issues in recent years as the concepts of sex and sexual identity or gender have become difficult to separate. Despite the distinct usual meanings of “sex” and “gender,” many institutions and individuals use “gender” to mean biological sex.
Counselor Brian Tingley, who’s a practicing Christian, says the state’s counseling censorship law violates his freedom of speech and infringes on his religious faith and that of his clients by prohibiting certain private client-counselor conversations regarding sexual orientation and gender identity that are disfavored by the state government while allowing and encouraging conversations the government favors.
Mr. Tingley has been in private practice providing counseling services since 2002. He works with children, adults, and couples dealing with marital and family conflicts, sexual orientation and gender identity issues, depression, anger, and stress management. He uses ordinary counseling methods, listening to clients and supporting them as they work through these challenges to pursue their own life goals, according to the Alliance Defending Freedom (ADF), which is representing Mr. Tingley.
“Tingley grounds human identity in God’s design rather than a person’s feelings or wishes. Many of his clients agree and seek his counsel precisely because they want to align their identity with their faith. But Washington censors Tingley from speaking with clients in that way,” Mr. Tingley’s petition states.
The state’s 2018 law prohibits any conversation between a counselor and a minor client in pursuit of a goal to “change” that minor’s perceived gender identity or sexual attraction.
The law censors simple conversations within a voluntary counseling relationship between a client and a counselor that are aimed at achieving personal goals that the client chooses for himself or herself.
But the law only prohibits counseling in one direction, the ADF says. For example, the law permits counseling conversations that seek to steer young people toward a transgender identity but prohibits conversations to help that same person be comfortable with his or her sex.
Mr. Tingley said in court papers that the state law “forbids him from speaking, treating his professional license as a license for government censorship.”
The law imposes fines of $5,000 per violation, suspension from practice and, in some cases, permanent revocation of a counselor’s license.
A federal district court in Washington state ruled against Mr. Tingley in 2021. The U.S. Court of Appeals for the 9th Circuit upheld the decision the following year. The court held that the Washington state law regulated professional conduct, not speech.
“States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel,” Circuit Judge Ronald Gould wrote for the appeals court.
In the case at hand, Supreme Court Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh indicated they would have accepted Mr. Tingley’s case.
“That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.”
Justice Thomas also criticized the 9th Circuit.
“This case is not the first instance of the Ninth Circuit restricting medical professionals’ First Amendment rights, and without the Court’s review, I doubt it will be the last. This Court recently reversed the Ninth Circuit’s decision to uphold a law compelling crisis pregnancy centers to disseminate government-drafted notices,” he wrote.
Under SB 5722, “licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment. The Ninth Circuit set a troubling precedent by condoning this regime,” the justice wrote.
“In recent years, 20 States and the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy. It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.”
ADF senior counsel John Bursch said his firm was “disappointed that Washington’s counseling censorship law will continue to prevent many people from getting the help they need.”
“The law clearly violates the First Amendment by censoring counselors like Brian, and that ultimately hurts his clients. Washington forces counselors to tell their clients that there is no path to affirming their biological sex. It is disappointing that Washington’s censorship regime will remain in place.
“This issue is not going away. As Justices Thomas, Kavanaugh, and Alito pointed out, this law clearly regulates speech, there is a circuit split on the issue, and 20 other states and the District of Columbia have similar laws. We urge the Supreme Court to take a similar case when the time comes.”
The Epoch Times reached out for comment to the Washington state attorney general’s office but had not received a reply as of press time.
