Supreme Court won’t take case challenging conversion therapy bans

Washington, D.C. Newsroom, Dec 11, 2023 / 17:10 pm

The United States Supreme Court refused to take up a case that challenges the constitutionality of Washington’s “conversion therapy” ban for minors, which restricts what counselors can say to patients who have same-sex attraction or identify as transgender.

Under Washington state law, conversion therapy refers to efforts to “change an individual’s sexual orientation or gender identity” or “change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Similar bans on such treatments are in effect in 20 other states and the District of Columbia.

Violations of the law are punishable by fines of up to $5,000 and counselors can be suspended from practice or have their licenses revoked.

The Supreme Court’s 6-3 decision on Dec. 11 to refuse to take the case ensures that statewide laws that restrict this type of therapy can remain in effect. Brian Tingley, a licensed marriage and family counselor in Tacoma, challenged the state law, claiming it violated his First Amendment rights to free speech and the free exercise of religion.

In a statement, Alliance Defending Freedom senior counsel John Bursch, representing Tingley, urged the Supreme Court to take up this issue if it is ever brought to them again, noting that counselors in other states could bring similar lawsuits. 

“We’re disappointed that Washington’s Counseling Censorship Law will continue to prevent many people from getting the help they need,” Bursch said. “The law clearly violates the First Amendment by censoring counselors like Brian [Tingley], 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.”

Bursch told CNA that the Supreme Court’s refusal to take up the case “sends a terrible free speech message” to government officials and lower courts and allows Washington to continue to “censor and compel [viewpoint-specific] speech.” 

He added that it would allow the nine Western states under the jurisdiction of the Ninth Circuit Court of Appeals to continue to discriminate against speech.

Despite the decision, Bursch said Tingley is “definitely going to continue counseling” in a way that is consistent with state law. Bursch said Tingley is “strongly convinced by the medical evidence [that it is] dangerous and wrong to affirm kids’ transgender identity,” such as by assigning them transgender hormone therapy or drugs or performing sex change surgeries.

Washington Attorney General Bob Ferguson praised the ruling in a statement.

“This is a victory for LGBTQ+ civil rights,” Ferguson said. “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 six-justice majority did not issue a statement explaining why the court declined to take the case. However, two of the dissenting justices, Clarence Thomas and Samuel Alito, provided written dissents. Justice Brett Kavanaugh also dissented but did not write an explanation. 

“Under [Washington’s law], licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities,” Thomas said in his dissent. 

“Expressing any other message is forbidden — even if the counselor’s clients ask for help to accept their biological sex. That is viewpoint-based and content-based discrimination in its purest form. As a result, [the law] is presumptively unconstitutional and the state must show that it can survive strict scrutiny before enforcing it,” Thomas wrote.

Similarly, Alito said in a brief dissent: “It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.”

Three Republican-appointed justices joined three Democrat-appointed justices in declining to hear the case. The Republican-appointed justices were John Roberts, Neil Gorsuch, and Amy Coney Barrett. The Democrat-appointed justices were Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.