Court upholds ban on LGBTQ conversion therapy
This blog will be discussing the recent case Tingley v. Ferguson, 9th Cir., No. 21-35815.
On Tuesday, September 6, 2022, the U.S. federal appeals court in Washington state unanimously upheld the decision to ban conversion therapy on LGBTQ patients under the age of 18. By making this decision the court rejected a therapists claim that the Washington law that prohibits state licensed medical professionals from practicing conversion therapy was a violation of his freedom of speech and that he was targeted due to his Christian faith.
US Court of Appeals for the Ninth Circuit said that, “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”. Therefore, the court held that the Washington law did not violate the First and 14th Amendment, imposing the ban to protect the “physical and psychological wellbeing of children”.
The court explained that conversion therapy intends to change a person’s sexual orientation from gay to straight or aims to change a person’s gender identity from transgender to cisgender and is opposed by every major medial, psychiatric and psychological mental health organization. More than 20 states have laws against conversion therapy in the U.S.
In order to practice in Washington health care providers are required to be licensed. The Washington ban was enacted in 2018 and may discipline licensed health care providers with “unprofessional conduct”, for trying the performance of conversion therapy on persons under the age of 18.
This was challenged by Brian Tingley, Plaintiff in the action, who is a marriage and family counselor. Tingley sued state officials and claimed that this ban violated his free speech rights and his religious views regarding homosexuality and gender identity.
The court based their argument on the recent case Pickup v. Brown, in which the 9th Circuit upheld against a free speech challenge and further argued that Washington Law is “nearly identical” to a California law. Therefore, Washington law, just as California’s, only regulates conduct and not speech.
This decision is still not unproblematic, as it is creating a circuit split on the merits. The US Court of Appeals for the Eleventh Circuit has struck down conversion therapy bans that have been adopted by Florida city and county. This was due to the courts conclusion that the bans regulated speech and not conduct.
The 58-page decision, which upheld a lower court ruling, stated that this ruling was not undermined by the 2018 U.S. Supreme Court decision that California could not require Christian based “crisis pregnancy centers” that opposed abortion to give women information about how to end their pregnancies.
The decision made by the court on Tuesday, was welcomed by Washington Attorney Ferguson, who had defended the state ban in this action.