Conversion therapy ban challenge will not be reheard by appeals court

by Reuters
Tuesday, 24 January 2023 09:28 GMT

Pedestrians pass the James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, in San Francisco, California February 7, 2017. REUTERS/Noah Berger

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A federal appeals court refused to reconsider an earlier order upholding Washington state's ban on conversion therapy seeking to change minor patients' sexual orientation or gender identity
  • An earlier appeals court panel upheld Washington state's ban on conversion therapy
  • A faith-based therapist had challenged the ban, saying it violated freedom of speech and religion
  • Dissent said "professional speech" is not necessarily less protected

(Reuters) - A federal appeals court on Monday refused, over the dissents of a group of Republican-appointed judges, to reconsider an earlier order upholding Washington state's ban on so-called conversion therapy seeking to change minor patients' sexual orientation or gender identity.

A Christian family therapist had urged the full 9th U.S. Circuit Court of Appeals to rehear his challenge to the law on freedom of speech and religion grounds after a three-judge panel ruled against him last year.

The majority, as is customary, did not explain its reasons for not granting the rehearing.

"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," said John Bursch of Alliance Defending Freedom, a lawyer for plaintiff Brian Tingley, in a statement. "We will be considering our options moving forward."

The office of Washington Attorney General Bob Ferguson did not immediately respond to a request for comment.

Enacted in 2018, Washington's law subjects licensed health care providers to discipline, including possible fines and license suspensions or revocations, for trying to change the sexual orientation or gender identity of people under age 18.

More than 20 states have similar laws. The American Psychological Association and other major medical associations have condemned the practice of conversion therapy on the grounds that it is ineffective and can harm patients' mental health.

Tingley, who lives in Tacoma and practices in nearby Fircrest, Washington, sued the state in 2021 in federal court in Tacoma, saying it violated his right to free speech and to practice in accordance with his Christian religious beliefs.

U.S. District Judge Robert Bryan dismissed the case, finding that the state had the authority to regulate the practice of medicine, including psychotherapy, even if it restricts speech. A three-judge panel of the 9th Circuit agreed last September.

Senior Circuit Judge Diarmuid O'Scannlain, in a dissent on Monday, said the panel had failed to grapple with a 2018 U.S. Supreme Court ruling, National Institute of Family and Life Advocates v. Becerra, which rejected the concept that "professional speech," in the context of a professional relationship, is necessarily less protected than other speech.

He said the court should have re-heard the case to "clarify that regulation of the medical profession is not a First-Amendment-free zone."

O'Scannlain was joined by Circuit Judges Sandra Ikuta, Ryan Nelson and Lawrence VanDyke.

Circuit Judge Patrick Bumatay, separately, said the court had not adequately addressed Tingley's challenge 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.

The case is Tingley v. Ferguson, 9th U.S. Circuit Court of Appeals, No. 21-35815.

For Tingley: John Bursch and Roger Brooks of Alliance Defending Freedom

For Washington state: Assistant Attorney General Cristina Sepe

(NOTE: This story has been updated with comment from Alliance Defending Freedom counsel.)

By Brendan Pierson