A federal appeals court has refused to reconsider an earlier order upholding Washington State’s law barring licensed therapists from subjecting minors to so-called “conversion therapy.”
The law was challenged by Brian Tingley, a family therapist who lives in Tacoma and practices in nearby Fircrest, Washington, sued the state in 2021, claiming the law violates his right to free speech and his right to practice in accordance with his Christian religious beliefs, which oppose homosexuality.
Under the law, licensed health care providers who attempt to forcibly change the sexual orientation or gender identity of their patients under the age of 18 can be subject to disciplinary action, including possible fines and the suspension or loss of their license to practice.
A federal judge dismissed Tingley’s lawsuit, finding that Washington State had the authority to regulate the practice of medicine, including psychotherapy, even if it restricts the therapist’s speech. Tingley appealed the dismissal to the 9th U.S. Circuit Court of Appeals, with a three-judge panel of circuit judges upholding the dismissal last September.
Tingley’s lawyers subsequently appealed the decision by asking the full 9th Circuit to review the case. But the majority of the judge on court rejected hearing the case, without explaining its reasoning — a common judicial practice.
However, a group of Republican-appointed judges dissented, criticizing the majority for refusing to rehear the case, report Reuters.
Senior Circuit Judge Diarmuid O’Scannlain said in a dissent that the three-judge panel that upheld the dismissal had failed to address the finding in a 2018 U.S. Supreme Court ruling involving anti-abortion “crisis pregnancy” centers in which the high court rejected the idea that “professional speech,” in the context of a doctor-patient relationship, is necessarily less protected than other speech.
O’Scannlain said the court should have re-heard the case to “clarify that regulation of the medical profession is not a First Amendment-free Zone.” He was joined in his dissent by Circuit Judges Sandra Ikuta, Ryan Nelson, and Lawrence VanDyke, the latter two of whom were appointed by former President Donald Trump. VanDyke previously came under scrutiny prior to being confirmed due to a record on LGBTQ-related cases that critics claimed demonstrated animus towards LGBTQ people.
Judge Patrick Bumatay, an openly gay Trump appointee, argued, separately, that the court had not addressed Tingley’s challenge to the law on the basis of religious freedom.
“[F]or many who voluntarily seek conversion therapy, faith-based counseling may offer a unique path to healing and inner peace,” Bumatay wrote.
John Bursch, of the anti-LGBTQ organization Alliance Defending Freedom, which is representing Tingley, slammed the 9th Circuit’s decision.
“The court’s decision allows the State of Washington to censor conversations — pure speech consisting of nothing more than an exchange of words — between counselors and their clients,” Bursch said in a statement. “We will be considering our options moving forward.”
Those options could involve appealing to the U.S. Supreme Court. In past cases involving bans on conversion therapy, the high court has typically avoided the issue, allowing lower court rulings in favor of the bans to stand. But the high court has also not heard a challenge to a conversion therapy law since the confirmations of Trump-appointed justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. As such, it is impossible to predict whether the high court will take up the case.
Currently, 20 states and the District of Columbia have laws banning the practice of conversion therapy. Most major medical and mental health organizations oppose the practice on the grounds that it is ineffective and can harm patients’ mental health.
The National Center for Lesbian Rights, which intervened in the lawsuit on behalf of the statewide LGBTQ organization Equal Rights Washington, celebrated the court’s decision not to rehear Tingley’s challenge.
“The Ninth Circuit has affirmed that states can require licensed mental health providers to comply with ethical and professional standards prohibiting the use of unnecessary, ineffective, and harmful treatments on their minor patients,” Shannon Minter, the legal director of the National Center for Lesbian Rights, said in a statement. “These are common sense protections that unfortunately are necessary to prevent unethical therapists from defrauding parents and causing severe harm to LGBTQ youth. Every major medical and mental health organization in the country supports these laws, which are supported by decades of research and clear standards of care.”
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