US Supreme Court snubs challenge to gay ‘conversion therapy’ ban in Washington state

By Andrew Chung

On December 11, 2023

The U.S. Supreme Court on Monday declined to hear a challenge to Washington state’s law banning “conversion therapy” on children aimed at changing sexual orientation or gender identity in a case brought by a Christian therapist who calls the 2018 measure an affront to free speech rights.

The justices turned away plaintiff Brian Tingley’s appeal of a lower court’s decision to throw out the case, rejecting his claim that the state is unlawfully censoring the way he speaks to his therapy clients in violation of the U.S. Constitution’s First Amendment right to freedom of speech. The state has said it is regulating professional conduct, not speech.

Conservative Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh dissented from the decision to deny the case, which presented yet another battle between LGBT protections and the rights of religious people.

In June, the court’s 6-3 conservative majority ruled that certain businesses possessed a free speech right to refuse to provide services for same-sex weddings. The dissenting liberal justices called the decision a “license to discriminate.”

Tingley is a licensed marriage and family therapist in Tacoma, Washington. He has said sexual relationships outside of a marriage between one man and one woman are “inconsistent with God’s design” and that “the sex each person receives at conception” is “a gift from God.”

The Democratic-backed law prohibits licensed healthcare professionals from practicing therapies on minors that seek to “change an individual’s sexual orientation or gender identity.” Violations can lead to sanctions including censure, fines or a revocation of the professional’s license.

The law still lets licensed therapists discuss or promote conversion therapy, perform it on adults or recommend it be performed by others including religious counselors. The law does not apply to nonlicensed counselors acting under the auspices of a church, religious denomination or organization.

Focusing on gender identity in a written opinion on Monday, Thomas said the court should have heard the case. Washington state’s law has silenced one side of a “fierce public debate” on the issue by forbidding counselors from helping clients “accept their biological sex.”

“That is viewpoint-based and content-based discrimination in its purest form,” he added.

Conversion therapy can range from psychotherapy to inducing nausea to discourage same-sex attraction. Washington state has said such therapy is discredited, ineffective and puts minors at increased risk of suicide and depression. Tingley said there is no evidence licensed therapists have ever used abusive practices on children.

Tingley has said he had clients who sought help in reducing same-sex attraction or to become more comfortable with their biological sex. He has said the law impermissibly gives the state a free pass to censor professionals and that the measure targets people based on religion.

The state contends it may regulate the conduct of professionals, even if doing so may impact speech. It said 26 states and the District of Columbia restrict or prohibit conversion therapy for minors.

Tingley sued the state in 2021. U.S. District Judge Robert Bryan dismissed the case, finding that the law does not violate Tingley’s First Amendment rights because it is “rationally related” to the state’s interest in protecting the well-being of minors.

The judge’s decision was upheld by the San Francisco-based 9th U.S. Circuit Court of Appeals in 2022.

Tingley is represented by the Alliance Defending Freedom, a conservative legal group that has challenged other LGBT protections. The group also represented the business owner in the Colorado same-sex weddings ruling.

This piece was republished from the Reuters.