Supreme Court Turns Away Challenge to Law Banning Conversion Therapy

The Supreme Court said on Monday that it would not hear a First Amendment challenge to a Washington State law banning professional counseling services intended to change a minor’s gender identity or sexual orientation.

Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh dissented.

The challenged law forbids licensed therapists there from performing conversion therapy, which it defines to include “efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” The law permits counseling that promotes “acceptance, support and understanding.”

Many states have similar laws, which are supported by leading medical groups. Brian Tingley, a licensed family counselor, challenged the constitutionality of the Washington State law in federal court, saying it violated his rights to free speech and the free exercise of religion.

In dissent on Monday, Justice Thomas wrote that the question posed by Mr. Tingley’s appeal was substantial and deserved the Supreme Court’s attention.

“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.”

In a separate dissent, Justice Alito agreed that the case warranted review.

“This case presents a question of national importance,” he 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.”

Justice Kavanaugh noted that he would have granted review but gave no reasons.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled against Mr. Tingley, saying the government was free to regulate the conduct of medical professionals.

“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,” Judge Ronald M. Gould wrote for the panel.

He added that the law regulated only Mr. Tingley’s professional conduct and only when minors were involved. The law, the judge wrote, allowed Mr. Tingley to communicate with the public about conversion therapy, to express his personal views to all of his patients, to practice conversion therapy on adults and to refer minors to counselors not licensed by the state.

Mr. Tingley is represented by Alliance Defending Freedom, a conservative Christian law firm and advocacy group that has litigated many cases for clients opposed to abortion, insurance coverage for contraception, and gay and transgender rights. The group has won a series of victories at the Supreme Court, most recently on behalf of a Colorado web designer who said she did not want to create websites celebrating same-sex weddings.

In a petition seeking Supreme Court review in the case, Tingley v. Ferguson, No. 22-942, the group said another one of its victories required a decision in Mr. Tingley’s favor. In 2018, the Supreme Court ruled that California could not require religiously oriented “crisis pregnancy centers” to supply women with information about how to end their pregnancies.

In his dissent, Justice Thomas said that precedent was pertinent.

“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,” he wrote. “This court recently reversed the Ninth Circuit’s decision to uphold a law compelling crisis pregnancy centers to disseminate government-drafted notices.”

Mr. Tingley’s petition said the Ninth Circuit had mistakenly treated the contested therapy as conduct rather than speech.

“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.”

Robert W. Ferguson, the Washington State attorney general, responded that his state’s law was both consistent with Supreme Court precedent and a crucial tool to prevent grave harm.

“For decades,” the state’s brief said, “this court has held that states can regulate conduct by licensed professionals, even if the regulations incidentally impact speech.” It added that “conversion therapy puts minors at risk of serious, long-lasting harms, including increased risks of suicide and depression.”