Talk Therapy Bans Will Be Struck Down

Brian Tingley is a licensed marriage and family counselor of over 20 years in Tacoma, Washington. He works with children, adults, and couples dealing with marital and family conflicts, sexual orientation and gender identity struggles, depression, anger, and stress management. In 2018, Washington passed a law to censor conversations between clients and counselors like Tingley by dictating which goals they can or cannot discuss with minor clients regarding unwanted same sex attractions, behaviors, or gender confusion. The law threatens counselors with fines of up to $5,000 per violation, suspension from practice, and even permanent revocation of their licenses.

Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh stated they would have taken the case. Justices Thomas and Alito cite Liberty Counsel’s cases, Otto v. City of Boca Raton, Pickup v. Brown, and King v. Governor of New Jersey, as the basis for a split among the courts which satisfies the High Court’s established criteria for granting review. Justice Thomas also invites further challenges to these bans because he states it will return before the High Court again. Justice Alito also references the Otto decision and questions the continuing validity of the decision in Liberty Counsel’s case King v. Governor of New Jersey, after the ruling in National Institute of Family and Life Advocates v. Becerra.

Justice Thomas wrote: “This petition asks us to consider whether Washington can censor counselors who help minors accept their biological sex. Because this question has divided the Courts of Appeals and strikes at the heart of the First Amendment, I would grant review.”

“There is a fierce public debate over how best to help minors with gender dysphoria. The petitioner, Brian Tingley, stands on one side of the divide. He believes that a person’s sex is ‘a gift from God, integral to our very being.’ As a licensed marriage and family counselor, Tingley seeks to assist minors who suffer from gender dysphoria but ‘want to become comfortable with their biological sex.’ Tingley does so through ‘talk therapy’—i.e., therapy conducted solely through speech. The State of Washington is on the other side of the divide. Its view is that the State should ‘protec[t] its minors against exposure to serious harms caused by’ counseling to change a minor’s gender identity, and, as a result, that counselors should only affirm a minor’s chosen gender identity. Washington silenced one side of this debate by enacting S.B. 5722,” wrote Justice Thomas.

“The Ninth Circuit’s opinion created a Circuit split. Two years earlier, the Eleventh Circuit concluded that near-identical Florida municipal ordinances did regulate speech. Otto v. Boca Raton. The Eleventh Circuit held the ordinances unconstitutional because they prohibited speech based on content and viewpoint, and could not satisfy strict scrutiny. The Third Circuit has also held that laws restricting talk therapy designed to change a client’s sexual orientation regulate speech, not conduct. King v. Governor of New Jersey, abrogated on other grounds by National Institute of Family and Life Advocates v. Becerra. Tingley asks us to resolve this Circuit split and review whether SB 5722 violates the First Amendment. We should have.”

Justice Alito wrote, “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. Compare with Otto v. Boca Raton. And the Ninth Circuit’s holding is based on the highly debatable view that its prior decision in Pickup v. Brown, survived at least in part our decision in National Institute of Family and Life Advocates v. Becerra, which singled out Pickup for disapproval.”

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