The Supreme Court declined Monday to hear a challenge to a Washington state law prohibiting counselors from engaging in conversations that encourage changes to a minor’s “sexual orientation or gender identity.”
The law, adopted in 2018, threatens to fine counselors who violate it up to $5,000 and to revoke their license. The Supreme Court declined on Monday to hear Tingley v. Ferguson, Christian family counselor Brian Tingley’s First Amendment challenge to the state’s “Counseling Censorship Law,” though Justices Brett Kavanaugh, Samuel Alito, and Clarence Thomas noted they would have taken the case.
“Under SB 5722, licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities,” Thomas wrote in a short dissenting opinion. “Expressing any other message is forbidden—even if the counselor’s clients ask for help to accept their biological sex. That is viewpoint-based and content-based discrimination in its purest form.”
The 9th U.S. Circuit Court of Appeals previously rejected Tingley’s challenge, finding that “the law was a neutral law targeted at preventing the harms associated with conversion therapy, and not at the religious exercise of those who wish to practice this type of therapy on minors.”
Thomas noted this is “not the first instance of the 9th Circuit restricting medical professionals’ First Amendment rights” and likely will not be the last.
Alito wrote in his dissent that the case presents “a question of national importance.”
“In recent years, 20 States and the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy,” Alito wrote. “It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.”
“A practicing Christian, Tingley grounds human identity in God’s design rather than a person’s feelings or wishes,” Tingley’s lawyers wrote in his petition to the Supreme Court. “Many of his clients agree and seek his counsel precisely because they want to align their identity with their faith. But Washington censors Tingley from speaking with clients in that way.”
His petition notes that there are “no legal consequences” if Tingley tells his neighbor “about the emerging international medical consensus to treat gender dysphoria with watchful waiting instead of affirmation. Yet the same conversation with a client could result in him losing his license.
Idaho and 11 other states wrote in an amicus brief filed with the court that “free citizens don’t need to choose between making a living in a licensed profession and retaining their right to speak freely.”
“The First Amendment protects Americans from such fundamental compromises,” the states continued. “Robust free speech also ensures that professions remain guided by truth rather than dogma. The First Amendment guards the medical field no less than the political arena.”
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