Washington court upholds gag rule on private Christian therapists

Brian Tingley, a licensed family therapist, is a Christian who operates out of a private practice. A Washington state law offers a religious exception to a ban on licensed therapists counseling anyone younger than 18 with the goal of seeking to change sexual orientation or gender identity. But it only applies to therapy provided “under the auspices of a religious denomination, church, or religious organization,” so it does not cover Tingley.

In a lawsuit, Tingley argued that the 2018 talk ban violated his First Amendment free speech rights.

In an Aug. 30 decision, U.S. District Judge Robert Bryan dismissed Tingley’s lawsuit on the basis of twin rulings by the 9th U.S. Circuit Court of Appeals that upheld a similar California law. He concluded that a 2018 Supreme Court ruling in a case about state-compelled speech, NIFLA v. Becerra, did not apply to Tingley’s situation. In NIFLA, the court struck down a California law requiring licensed pregnancy clinics to notify patients of publicly funded abortion providers.

“The Washington Conversion Law does not restrain the dissemination of information,” concluded Bryan, in an attempt to distinguish Tingley’s case from NIFLA. “It prohibits a licensed therapist from engaging in a specific type of conduct.”

Free speech law has always recognized a distinction between speech and conduct, yet last week’s ruling muddied the difference, concluding that a counselor’s words alone are conduct.

Bryan’s reasoning, and that of the 9th Circuit, is at odds with a November 2020 ruling by a three-judge panel of the 11th U.S. Circuit Court of Appeals. In a 2-1 decision, the panel struck down similar talk bans in Palm Beach County and Boca Raton, Fla. In an attempt to revive the case, the city, supported by the Florida Chapter of the American Academy of Pediatrics and Florida Psychological Association, has requested that the full court rehear the case.

Alliance Defending Freedom counsel Roger Brooks, who represents Tingley, said he would appeal the Washington ruling. “All Americans, secular or religious, deserve the right to private conversations, free from government censorship,” Brooks told KING-TV. “The state of Washington doesn’t get to ban speech it dislikes; that’s not what free speech means.”