The Supreme Court decided not to take up a challenge to Washington State’s ban on “conversion therapy” for minors on Monday, allowing a lower court decision upholding the law to stand.
The High Court was divided in its decision, with Justice Brett Kavanaugh indicating he would have heard the case and conservative Justices Clarence Thomas and Samuel Alito penning separate dissents. The law, called SB 5722, was passed in 2018 and adds “conversion therapy” for minors to the list of violations that could cost a therapist their license.
“Under SB 5722, 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,” Justice Thomas wrote, continuing:
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, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.
We are disappointed that SCOTUS will not hear Tingley v. Ferguson, our challenge to WA’s Counseling Censorship Law.
This issue is not going away. As three Justices pointed out, such laws regulate speech in 20+ states. We urge the Court to take a similar case when the time comes.
— Alliance Defending Freedom (@ADFLegal) December 11, 2023
The state defines “conversion therapy” as “a regime that seeks to change an individual’s sexual orientation or gender identity”:
The term includes 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 term includes, but is not limited to, practices commonly referred to as “reparative therapy.”
Democrats, including the Biden administration, have been using a broad definition of “conversion therapy” that includes gender identity to push conversion therapy bans. But Candice Jackson, the Trump-era former acting assistant secretary for the Education Department’s Office for Civil Rights (OCR), previously told Breitbart News that the origins of conversion therapy have “nothing to do with gender identity”:
Historically, this was in the realm of true abuse and torture. Electroshock therapy, for example, or taking teenagers and sending them away to camp that really just berated them and broke them down emotionally and psychologically, and forced them into sexual situations…
In 2021, Brian Tingley, who worked in the state for more than 20 years as a licensed marriage and family counselor, filed a lawsuit against Washington. He argued that the law violates his First Amendment right to speak freely when counseling minors on sexual orientation and gender identity.
Tingley argued in his brief to the Supreme Court:
Many minors struggling with gender dysphoria seek counseling to align their mind and body instead of rushing headlong into experimental medical interventions. Yet it is this desperately needed counseling—encouraging words between a licensed counselor and a consenting minor client with parental permission—that Washington State forbids through its viewpoint-based Counseling Censorship Law.
Tingley appealed his case to the Supreme Court after the U.S. Court of Appeals for the Ninth Circuit decided against him, ruling that SB 5722 does not regulate speech at all.
Justice Alito wrote in his dissent that the Ninth Circuit’s ruling is based on “highly debatable” legal reasoning:
Like Justice Thomas, I would grant the petition for a writ of certiorari. 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. There is a conflict in the Circuits about the constitutionality of such laws.
The case is Tingley v. Equal Rights Washington, No. 22-942, in the Supreme Court of the United States.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.
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