A Christian marriage and family counselor who helps clients with gender identity told the court that the Washington law censors his conversations with clients, in violation of the First Amendment. The U.S. Court of Appeals for the 9th Circuit upheld the law, which it said prohibits certain professional conduct, not speech.
As is customary, the Supreme Court majority did not explain its decision Monday to leave the 9th Circuit ruling in place. Three justices — Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh — said they would have taken the case.
In written dissents, Alito and Thomas said the case presents important questions of free speech that have divided lower courts.
“There is fierce debate over how best to help minors with gender dysphoria,” Thomas wrote.
Brian Tingley, the family counselor, told the court that he seeks to help young people with gender dysphoria who “want to be comfortable with their biological sex.”
Washington and other jurisdictions have passed laws barring such counseling because of the harmful, traumatic effects on patients that most medical associations say comes from counseling a minor to change his or her gender identity or sexual orientation. The premise of conversion therapy, according to medical experts, is that same-sex attraction or nonconforming gender expression and identity are pathological — the result of physical or mental illness.
California was the first state to ban conversion efforts in 2012, according to data from the nonprofit Movement Advancement Project. Since then, 26 states have instituted partial or full bans on conversion therapy for minors.
In Thomas’s five-page dissent on Monday, he said Washington’s ban had “silenced one side of this debate” by restricting the First Amendment rights of medical professionals. “Licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment. The Ninth Circuit set a troubling precedent by condoning this regime,” Thomas wrote.
The 9th Circuit ruled last year that the law does not regulate speech because counseling is a type of medical treatment and professional conduct that can be regulated as a health-care practice.
In contrast, the U.S. Court of Appeals for the 11th Circuit found similar laws in Florida unconstitutional because the court said those laws prohibited certain speech.
“The perspective enforced by these local policies is extremely popular in many communities,” Judge Britt Grant wrote in a concurring opinion. “And the speech barred by these ordinances is rejected by many as wrong, and even dangerous. But the First Amendment applies even to — especially to — speech that is widely unpopular.”
In a statement Monday, an attorney with the Christian legal organization, Alliance Defending Freedom, called the high court’s decision a disappointment but said the issue “is not going away.”
“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,” senior counsel John Bursch said in a statement. “We urge the Supreme Court to take a similar case when the time comes.”
