The First Amendment and sexual orientation “conversion therapy” — Next stop, the Supreme Court?

From the en banc rehearing opinion of Judge Diarmuid O’Scannlain issued today (joined by Judges Sandra Ikuta, Ryan Nelson and Lawrence VanDyke) in Tingley v. Ferguson:

Is therapeutic speech speech? Does the licensing tradition of a particular profession override any First Amendment restrictions on licensing requirements? The three-member panel of judges answered the first question with ‘no’, and the majority of the panel with ‘yes’ to the second. In my view, both conclusions are erroneous and significant constitutional misinterpretations, and I respectfully disagree with our court’s unfortunate failure to rehear this case en banc.

First, the panel said that therapeutic speech is nonspeech conduct and therefore protected only by rational basis review. In truth, this result was achieved by the faithful application of our decision Pickup vs. Brown, which held that California’s ban on “efforts to change sexual orientation” is a code of professional conduct that only incidentally burdens speech. But the Supreme Court refused Pick up by name. Nat’l Inst. of Family & Life Advocates v. Becerro (“NIFLA“) (2018). Other circuits also refused Pick upholds, concluding instead that therapeutic speech is speech entitled to some First Amendment protection. See King v. Governor of New Jersey (3rd round 2014); Otto v. City of Boca Raton (Round 11, 2020). Defense of the council of Pick upContinued sustainability is inconclusive. We should have granted a rehearing in the bank to reconsider Pick up and thus resolve this split circle.

Second, the panel majority claimed to have uncovered a “long (albeit heretofore unacknowledged) tradition of regulation” that justifies the application of only rational basis review to laws burdening therapeutic speech. In reality, the majority drew a thin thread of historical evidence into a sweeping new category of First Amendment exceptions. If new traditions are so easily discovered, laws that burden speech can be avoided any level of review simply by identifying some legitimate purpose they could serve. We should have granted rehearing en banc also to clarify that regulation of the medical profession is not a First Amendment free zone.

Justice Patrick Bumatay also held that the court should have heard the case en banc again:

The issues at the heart of this case are deeply personal. Many Americans and the state of Washington find conversion therapy — the practice of seeking to change one’s sexual orientation or gender identity — deeply troubling, offensive and harmful. They point to studies showing that such therapy is ineffective. Worse, they claim that conversion therapy is associated with high rates of severe emotional and psychological trauma, including suicidal ideation. Subject to the appropriate level of judicial review, these concerns should not be ignored.

But we also cannot ignore that conversion therapy is often based on religious faith. According to plaintiff Brian Tingley, a Washington state licensed therapist, his practice of conversion therapy is an outgrowth of his religious beliefs and understanding of Christian teachings. Tingley treats her clients from a perspective of shared faith, which she says lends itself to establishing trust. And as part of her therapeutic treatment, Tingley advises her clients to live their lives in accordance with their religious beliefs and teachings.

Of course, the relationship between the LGBT community and religion can be complicated. However, as with any community, members of the LGBT community have different experiences with faith. According to a 2013 survey, 42% of LGBT adults identify as “Christian.” Forty-three percent say religion is important in their lives—including 20% ​​who say it is “very important.” A recent study found that 46.7% of LGBT adults, or 5.3 million LGBT Americans, are religious. Therefore, for many who voluntarily seek conversion therapy, faith-based counseling can offer a unique path to healing and inner peace. Indeed, Tingley only works with clients who freely embrace his faith-based approach.

Normally, under traditional police powers, states have broad authority to regulate licensed professionals like Tingley. Under these powers, the state of Washington banned the practice of conversion therapy on minors. The ban applies to all forms of treatment, including voluntary, non-aversive and non-physical therapy. In other words, Washington prohibits pure talk therapy based on sincere religious principles. As a result, Tingley cannot discuss traditional Christian teachings about sexuality or gender identity with his minor clients, even if they seek that counseling. Although the states’ regulatory powers are generally broad, they must yield to our Constitution.

Washington notes that conversion therapy can involve more lethal procedures, such as electric shock treatment or the use of nausea-inducing drugs. I have little doubt that a law prohibiting coercive, physical, or aversive treatment of minors would survive a constitutional challenge under any standard of review. But Washington law prohibits a wide range of counseling, some of which would clearly be classified as voluntary, religious and speech. Under Tingley’s constitutional challenge, we must focus on the law’s impact on these aspects of conversion therapy.

Here again, the First Amendment protects against government abridgment of “free speech.” Regardless of our feelings on the matter, Washington’s law restricts speech motivated by the teachings of several major world religions. Such laws necessarily trigger increased levels of judicial review. After all, “religious and philosophical objections” to issues of sexuality and gender identity “are protected viewpoints and in some cases protected forms of expression.” As Justice O’Scannlain writes, religious speech receives “special consideration” under the First Amendment. And those protections don’t go away just because Tingley is a licensed therapist. In the context of free exercise, the Court recently noted that the First Amendment protects “the ability of those who hold religious beliefs of all kinds to live out their faith in their daily lives.” This principle applies equally when faith takes the form of speech.

Because the talk therapy that supports 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 stringent standard. It is quite possible that, even under increased scrutiny, Washington’s interest in protecting minors would override Tingley’s Free Speech challenge. But our Court clearly errs in subjecting the Washington Act to mere rational scrutiny.

It is a “fundamental principle” of the First Amendment that the government cannot restrict speech “merely because society finds the very idea offensive or distasteful.” While I realize that the speech here may be unpopular or even offensive to many Americans, it is precisely in these instances that we must be most vigilant in upholding constitutional principles. Those principles require heightened scrutiny of Tingley’s free speech claim. It may be easier to dismiss this case under Washington Law Review, but the Constitution dictates otherwise…

Here is an excerpt from the panel opinion by Judge Ronald M. Gould, joined by Judge Kim McLane Wardlaw and, as to the discussion of Pick upMark J. Bennett:

This appeal requires us to decide again whether a state may prohibit state-licensed health care providers from practicing conversion therapy on children. Twenty states and the District of Columbia have laws that prohibit or restrict the practice of conversion therapy, which seeks to change an individual’s sexual orientation or gender identity. This appeal concerns a Washington law that subjects licensed health care providers to discipline if they practice conversion therapy on patients under the age of 18.

In 2014, we supported substantially similar legislation passed by California that would subject its state-licensed mental health providers to discipline for practicing conversion therapy on minor clients. Pickup vs. Brown (9th round of 2014). Finding herself bound to Pick upthe district court in this case rejected plaintiff Brian Tingley’s challenge to an almost identical Washington law.

We confirm. Washington’s licensing system for health care providers, which penalizes them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license just because those treatments are administered by speech rather than scalpel…

NIFLA did not cancel Pick up to the extent that Tingley claims it is. All parties agree with that NIFLA canceled part Pick up in which we stated that professional speech, as a category, receives less protection under the First Amendment. There is no doubt that NIFLA abolished the professional speech doctrine and its treatment of all professional speech as well as half as the subject of the midterm examination. But Tingley claims it instead NIFLA abolished Pick up in its entirety, and that Pick up and NIFLA are irreconcilable to the point where Pick up is no longer binding law. We don’t agree…

In addition to following our precedent in Pickup, we have an additional reason for reaching the conclusion we reach today. The Supreme Court has recognized that laws governing categories of speech that belong to a “long … tradition” of restrictions are subject to less scrutiny. The Washington law regulates a category of speech that belongs to such a tradition and satisfies the lesser scrutiny imposed by such laws…

There is a long (although hitherto unrecognized) tradition of regulations governing the practice of health care providers within state borders. And such regulation of health professions applied to all health care providers, not just those who prescribe medicines. IN Collins v. Texas (1912), for example, the Court upheld the conviction of a man who practiced osteopathy without a license, reasoning that “[i]It is true that he does not administer medicine, but practices what at least amounts to the art of healing.” Texas, and all other states, “may by constitution prescribe conditions for such practice, as they deem necessary or useful to secure competence in those who follow it.” Court has provided a long list of state court cases similarly establishing “the right of the State to adopt policy even on medical questions about which there is difference of opinion and controversy.” …

There may be some procedural issues I’m missing here, but the case seems poised for possible Supreme Court review, especially given the split between the Ninth and Eleventh Circuits noted by Judge O’Scannlain (as well as the difference between the approaches of the Ninth Circuit and the Third Circuit ).

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