Christian therapist's challenge to Wash. state's 'conversion therapy' ban revived after Supreme Court ruling
A federal court has revived a Christian therapist's legal challenge to a Washington state law that bans counseling for minors struggling with unwanted same-sex attraction or gender confusion.
The U.S. District Court for the Western District of Washington decided last Thursday to reopen the lawsuit, Tingley v. Brown, filed by Brian Tingley over a 2018 law that bans "conversion therapy."
Tingley, a licensed marriage and family therapist with more than 20 years of experience counseling adults and minors, says the law prevents him from having voluntary conversations with young clients who share his Christian worldview and seek his help.
The Alliance Defending Freedom, which is representing Tingley, issued a press release last Friday celebrating the decision to revive the lawsuit against Washington state.
“We’re pleased the court reined in Washington state’s ideological crusade because it violated the First Amendment and deprived children of the help that they seek,” said ADF Senior Counsel Johannes Widmalm-Delphonse.
Washington state Gov. Jay Inslee signed Senate Bill 5722 into law in 2018, which prohibited licensed therapists from engaging in sexual orientation change efforts therapy on minors.
While the law had an exemption for religious groups, Tingley sued Washington in 2021, arguing that the legislation didn't sufficiently protect the freedom of religion and freedom of speech.
In September 2022, a three-judge panel of the 9th Circuit U.S. Court of Appeals ruled unanimously against Tingley, with Circuit Judge Ronald M. Gould, a Clinton appointee, authoring the court opinion.
“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,” Gould wrote.
“Washington's law prohibits therapists from practicing conversion therapy on minors. It makes no reference to religion, except to clarify that the law does not apply to practice by religious counselors.”
The 9th Circuit voted to deny a full court rehearing for the lawsuit in January 2023, with Circuit Judge Diarmuid F. O'Scannlain, a Reagan appointee, authoring a statement respecting the order but believing that the earlier panel opinion had an "erroneous" reasoning.
"In sum, under binding Supreme Court precedents, conversion therapy consisting entirely of speech cannot be prohibited without some degree of First Amendment scrutiny," wrote O'Scannlain.
"The panel cites no evidence for the implausible proposition that conversion therapy conducted entirely by means of speech risks direct physical harm. … Speech which risks psychological harm does not thereby become non-speech conduct entire without First Amendment protections."
In December 2023, the U.S. Supreme Court declined without comment to hear an appeal in the case, allowing the lower court ruling against Tingley to stand.
In March, however, the Supreme Court released its opinion in Chiles v. Salazar, ruling 8-1 that Colorado cannot ban therapists from counseling minors seeking to change their sexual orientation or treat gender dysphoria.
Justice Neil Gorsuch delivered the majority opinion, writing that “we conclude that the courts below failed to apply sufficiently rigorous First Amendment scrutiny in this case.”
“While the First Amendment protects many and varied forms of expression, the spoken word is perhaps the quintessential form of protected speech. And that is exactly the kind of expression in which Ms. Chiles seeks to engage,” wrote Gorsuch.
“Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express.”
ADF attorneys argue the Chiles ruling directly undermines the reasoning that doomed Tingley's earlier case.
Jonathan Scruggs, ADF's vice president of litigation strategy, said Chiles "effectively reversed" the decision against Tingley, since the Supreme Court's 8-justice majority held that Colorado's similar law had to be evaluated under strict scrutiny — a standard the 9th Circuit did not apply to Washington's law.
Tingley's case isn't the only one to gain new life since Chiles.
According to Focus on the Family's Daily Citizen, Michigan has agreed to stop enforcing a similar counseling law, a case brought by two Missouri Christian counselors will be reheard, and Oregon counselor Frank Canepa had a $90,000 fine against him withdrawn.
