The U.S. Supreme Court has turned down a plea to overturn Washington state’s ban on conversion therapy, as a matter of First Amendment violations of free speech and free exercise of religion.
Conversion therapy is the pseudo-scientific practice of trying to change the sexual orientation or gender identity of individuals. In refusing the case of Tingley v. Ferguson — though not without opposition on the court from three key conservatives — the SCOTUS has chosen not to address a significant aspect of the ongoing battle over the rights of gay and trans minors.
The SCOTUS decision is a narrow win for LGBTQ+ rights in that the court has let the Washington state law remain in place. But in refusing to address the issue of conversion therapy — and while having declarative anti-LGBTQ+ dissents — the SCOTUS once again side-stepped a crucial civil rights issue for LGBTQ+ people that continues to harm gay and trans minors and even adults who are subjected to this purported “therapy,” nearly always against their will. The Williams Institute stated that at least 700,000 LGBTQ+ people have been subjected to conversion therapy.
On Monday, six of the nine justices refused to review the lower court ruling that upheld a ban against conversion therapy. This means the ban remains in place in Washington state. Fewer than half of U.S. states ban conversion therapy. Neither Pennsylvania, nor Delaware bans it, but New Jersey was the first to sign such a ban a decade ago under Republican Gov. Chris Christie.
The American Psychological Association, the American Academy of Child and Adolescent Psychiatry and the American Academy of Pediatrics have all issued statements over the past few years attesting to the fact that conversion therapy (also called reparative therapy) does not change sexual orientation or gender identity and that there is evidence that such efforts cause harm.
The Washington state law prohibits any licensed therapist in the state from performing conversion therapy. The law defines conversion therapy as any “efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”
Like each of the major medical and psychiatric organizations, the Washington law does allow for counseling that promotes “acceptance, support and understanding” and affirms the identities of the individuals in such contexts.
The case pivoted on free speech questions, rather than the rightness or wrongness of the practice itself. Brian Tingley, a licensed marriage and family counselor, “believes that a person’s sex is a gift from God, integral to our very being.” Tingley seeks to assist minors who suffer from gender dysphoria but “want to become comfortable with their biological sex.”
The argument Tingley made to the courts is that in his talk therapy, his right to free speech should allow for him to say what he believes to a client/patient. The state argues that speech must be limited to the rubrics of the law which says trying to change a person’s sexual orientation or gender identity is not allowed — only affirmation of their identities is acceptable.
Tingley’s petition said the Ninth Circuit had mistakenly treated the contested therapy as conduct, not speech. In its initial brief to the court, ADF argued that “The government can’t control a counselor’s speech” in asking the court to overturn the ruling of the lower appeals court.
“A private conversation is speech, not conduct,” the petition said. “And that does not change just because one participant is a licensed counselor and the other his client. Otherwise, government can alchemize almost any professional’s speech into conduct that can be silenced — something the First Amendment forbids.”
But Robert W. Ferguson, the Washington State attorney general, argued that Washington law upheld Supreme Court precedents on licensed professionals. Ferguson also argued for the state that banning conversion therapy for minors was key to protecting LGBTQ+ youth from psychological harm.
“For decades,” Ferguson’s brief said, “this court has held that states can regulate conduct by licensed professionals, even if the regulations incidentally impact speech.”
The brief added that “conversion therapy puts minors at risk of serious, long-lasting harms, including increased risks of suicide and depression.”
The dissenting justices presented this whole debate as a societal divide, with Tingley on one side and the state on the other.
Justices Brett Kavanaugh, Clarence Thomas and Samuel Alito all affirmed that they would have heard the case.
Thomas wrote, “This petition asks us to consider whether Washington can censor counselors who help minors accept their biological sex,” Justice Thomas wrote. “Because this question has divided the courts of appeals and strikes at the heart of the First Amendment, I would grant review.”
Thomas also said the case is fundamental to the First Amendment because under the Washington law, “licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.”
But the lower court had ruled that Tingley was free to tout conversion therapy in any other venue he chose — except in therapeutic situations with minors.
In a separate dissent, Justice Alito agreed that the case should be reviewed — which is in fact what advocates for a national ban have long wanted.
Alito wrote, “This case presents a question of national importance. 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.”
Kavanaugh dissented without comment.
A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled against Tingley, arguing the government can regulate the conduct of medical professionals and that the state can regulate the safety of medical treatments.
Writing for the panel, Judge Ronald M. Gould said, “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.”
Tingley is represented by the Alliance Defending Freedom, the Christian-based legal organization for whom Speaker of the House Mike Johnson was legal counsel for years. ADF has represented other anti-LGBTQ cases, like the case of web designer Lori Smith in 303 Creative LLC v. Aubrey Elenis. Like Tingley, the Smith case pivoted on whether First Amendment free speech protections in fact allow anti-LGBTQ businesses a constitutional right to violate civil rights laws and violate the civil liberties of lesbian and gay couples.
In June, the Supreme Court ruled 6-3 in favor of the evangelical Christian website designer who argued that a Colorado anti-discrimination law violated her First Amendment right when she refused to create websites for same-sex weddings and deny service to lesbian and gay couples.
So in refusing to hear the Washington state case, the SCOTUS avoided the religious freedom issue that has defined the rulings in nearly all of the LGBTQ+ cases that have come before the court — and also leaves conversion therapy on the books throughout the U.S.