An appeals court has declined to rehear an appeal in the case of a Christian therapist suing Washington state over its ban on therapy for minors experiencing unwanted same-sex attraction.
The United States Court of Appeals for the Ninth Circuit voted on Monday to deny a full court rehearing for a lawsuit filed by therapist Brian Tingley, who is challenging Washington’s law.
Circuit Judge Diarmuid F. O’Scannlain authored a statement respecting the order to deny the en banc rehearing, but also believed that the earlier panel opinion was “erroneous” in its reasoning.
“In sum, under binding Supreme Court precedents, conversion therapy consisting entirely of speech cannot be prohibited without some degree of First Amendment scrutiny,” wrote O’Scannlain.
“The panel cites no evidence for the implausible proposition that conversion therapy conducted entirely by means of speech risks direct physical harm … Speech which risks psychological harm does not thereby become non-speech conduct entire without First Amendment protections.”
Circuit Judge Patrick J. Bumatay authored a dissenting opinion to the vote, concluding that the full court should have considered the First Amendment arguments of Tingley.
“Because the speech underpinning conversion therapy is overwhelmingly—if not exclusively—religious, we should have granted Tingley’s petition for en banc review to evaluate his Free Speech claim under a more exacting standard,” Bumatay wrote.
“It may well be the case that, even under heightened review, Washington’s interest in protecting minors would overcome Tingley’s Free Speech challenge. But our court plainly errs by subjecting the Washington law to mere rational-basis scrutiny.”
LGBT activist groups like the National Center for Lesbian Rights, which intervened in the case on behalf of Washington state’s conversion therapy ban, celebrated the court’s decision.
NCLR Legal Director Shannon Minter said in a statement that the appeals court “has affirmed that states can require licensed mental health providers to comply with ethical and professional standards prohibiting the use of unnecessary, ineffective, and harmful treatments on their minor patients. These are common sense protections that unfortunately are necessary to prevent unethical therapists from defrauding parents and causing severe harm to LGBTQ youth.”
In 2018, Washington state Gov. Jay Inslee signed Senate Bill 5722 into law, which prohibited licensed therapists from engaging in sexual orientation change efforts therapy on minors.
Also derisively known as conversion therapy or “reparative therapy,” SOCE therapy involves trying to reduce or eliminate same-sex sexual attraction in an individual.
Although the law provided an exemption for religious organizations, Tingley filed suit against Washington over the law in 2021, arguing in part that the exemption did not go far enough in protecting the freedom of religion and freedom of speech.
Last September, a three-judge panel of the Ninth Circuit ruled unanimously against Tingley, with Circuit Judge Ronald M. Gould authoring the court opinion, in which he argued that the state had the power to regulate medical practices.
“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,” wrote Gould.
“Washington’s law prohibits therapists from practicing conversion therapy on minors. It makes no reference to religion, except to clarify that the law does not apply to practice by religious counselors.”
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