Washington’s ban on “conversion therapy” meant to change the sexual orientation or gender identity of people under 18 will remain in place after the U.S. Supreme Court declined Monday to take up a legal challenge against it.
A list of orders the court released indicated it would not hear the dispute over the widely discredited practice, which about two dozen states prohibit or restrict. Three of the court’s nine justices — Brett Kavanaugh, Clarence Thomas and Samuel Alito — said they would have let the case proceed. Thomas and Alito wrote dissents explaining why. Their positions underscored how the disagreements at the heart of the case are likely unsettled and may come up again at the high court.
Attorney General Bob Ferguson applauded the Supreme Court’s decision to pass over the case and to leave in place a federal appeals court ruling upholding the law.
“This is a victory for LGBTQ+ civil rights,” he said in a statement. “The research is clear — conversion therapy does not work, and can be particularly harmful to minors. This law passed the Legislature with strong bipartisan support. I’m proud of my legal team for successfully defending this important law.”
The American Psychiatric Association since 1998 has opposed conversion therapy. A position statement the group updated in 2018 encourages psychotherapies that “affirm individuals’ sexual orientations and gender identities.”
Central to the fight over Washington’s law was whether the state was regulating professional conduct or speech.
The case pitted a Tacoma family and marriage counselor represented by a conservative legal group against the state. Brian Tingley, the counselor, claimed that the state law, Senate Bill 5722, enacted in 2018, violated his right to free speech under the First Amendment of the U.S. Constitution and that the law ran afoul of the 14th Amendment because it is too vague.
Tingley has stated that he believes the sex each person is assigned at birth is “a gift of God” that should not be changed and has said that many of his clients share his religious viewpoints and come to him specifically because he holds himself out as a “Christian provider,” according to court records.
Therapists who fail to comply with Washington’s law can face fines, suspension from practice and revocation of their professional license.
In September 2022, a panel of judges on the 9th U.S. Circuit Court of Appeals rejected Tingley’s arguments against the law. Senate Bill 5722, the appeals court ruled, falls “within the well-established tradition of constitutional regulations on the practice of medical treatments.”
“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,” said the opinion, written by Circuit Judge Ronald M. Gould.
Alliance Defending Freedom, an increasingly influential and controversial Christian nonprofit law firm, represented Tingley.
The law firm helped defend a Mississippi law before the Supreme Court in the case that overturned Roe v. Wade and the constitutionally protected right to an abortion. ADF is involved in about a dozen active lawsuits over abortion and contraceptive access and has staked out opposition to policies designed to protect the rights of transgender people.
John Bursch, senior counsel and vice president of appellate advocacy for the firm, said in a statement on Monday that Washington’s law “clearly violates the First Amendment” and “forces counselors to tell their clients that there is no path to affirming their biological sex.”
“This issue is not going away,” he added. “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 “circuit split” refers to federal courts around the country ruling differently on the issue. A 2020 ruling by the 11th U.S. Circuit Court of Appeals found Florida municipal ordinances similar to Washington’s law were unconstitutional in how they regulated speech.
Thomas keyed in on this in his dissent. He also described “fierce public debate over how best to help minors with gender dysphoria,” — psychological distress a person feels when their gender identity is unaligned with their sex assigned at birth. Washington with its law, Thomas wrote, has “silenced one side of this debate.”
“Under SB 5722, licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment,” he added.
Alito’s dissent was less than a page. He said it was “beyond dispute” that laws like Washington’s “restrict speech, and all restrictions on speech merit careful scrutiny.” He also noted the divisions between lower courts on the issue in explaining why he would grant review.
The 9th Circuit grounded its decision in the Tingley case in one of its earlier rulings. In 2014, in the case Pickup v. Brown, the court upheld a similar California law that prohibited mental health providers from performing any “sexual orientation change efforts” on minors. Alito raised questions about how well that decision holds up under a 2018 Supreme Court decision.
Thomas emphasized that the conflict at the center of the Washington case is likely to resurface.
“I have no doubt that the issue it presents will come before the Court again,” he wrote. “When it does, the Court should do what it should have done here: grant certiorari to consider what the First Amendment requires.”
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