The Supreme Court declined Monday to hear a challenge to Washington state’s ban on gender conversion therapy for youths.
The challenge was brought by Brian Tingley, who counsels clients on gender dysphoria and stresses that sex is “a gift from God, integral to our very being.”
Washington’s law restricts counselors’ speech for youth dealing with gender dysphoria, making it unlawful to encourage someone under the age of 18 to embrace their biological sex. A violation could result in a suspended medical license and a $5,000 fine.
Washington state views conversation therapy as trampling on a minor’s preferred sexual orientation or identity.
Mr. Tingley said the law violates his First Amendment rights because it restricts his speech and how he counsels his clients.
The 9th U.S. Circuit Court of Appeals had ruled against Mr. Tingley, prompting him to ask the high court to step in. The 9th Circuit had reasoned that the law governs medical professionals’ conduct, which states have traditionally done, and is not a restriction on speech.
Other circuit courts, like the 3rd and the 11th circuits, have reasoned differently on the issue, setting up a circuit split that Supreme Court justices usually find compelling.
Only Justices Brett M. Kavanaugh, Samuel A. Alito Jr. and Clarence Thomas voted to hear the case, but at least four justices must vote in favor to review a dispute.
Justice Thomas wrote a dissent, saying Washington’s law classifies speech designed to make one comfortable with his or her biological sex as conversion therapy, while speech that embraces a chosen gender identity is not considered problematic by the state.
“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. 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,” Justice Thomas said.
Justice Alito wrote separately to say he would have granted the case because laws like Washington’s have been enacted in 20 states and the District of Columbia.
“It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny,” Justice Alito said.
John Bursch, senior counsel with Alliance Defending Freedom which represented Mr. Tingley, said they hope the Supreme Court will take up a similar case in the future.
“We’re disappointed that Washington’s Counseling Censorship Law will continue to prevent many people from getting the help they need. The law clearly violates the First Amendment by censoring counselors like Brian, 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. As Justices Thomas, Kavanaugh, and Alito pointed out, this law clearly regulates speech, there is a circuit split on the issue, and 20 other states and the District of Columbia have similar laws,” he said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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