Words to one, conduct to another
Appeals court upholds Washington “talk ban,” highlighting circuit divide
A unanimous panel of the 9th U.S. Circuit Court of Appeals last week upheld a Washington state law that bans state-licensed counselors from talking to minors who seek help with unwanted same-sex attraction or gender dysphoria. For now, the ruling greenlights talk bans, where they exist, on so-called conversion therapy in Alaska, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
Tuesday’s opinion by U.S. Circuit Judge Ronald Gould, an appointee of former President Bill Clinton, rejected an argument by Washington marriage and family therapist Brian Tingley that the First Amendment protects his talks with minors who seek his help.
Tingley sued in May 2021, challenging the 2018 Washington law classifying conversion therapy as “unprofessional conduct.” As a Christian, he believes sex is an immutable characteristic, “a gift of God,” and cannot be changed by “feelings, determinations, or wishes,” according to his complaint.
Gould hewed closely to a 2014 ruling by another panel of the 9th U.S. Circuit Court of Appeals. It upheld a similar California law as a regulation of conduct that only incidentally burdened speech.
“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,” Gould wrote, a conclusion directly at odds with a 2020 ruling by a panel of the 11th Circuit that struck down a similar talk ban by Florida’s Boca Raton County and Palm Beach. Over sharp dissents, the full 11th Circuit court in July declined a request to rehear the case.
The 11th Circuit ruling—which effectively bars similar talk bans in Alabama, Florida, and Georgia—held that the counseling in question was speech, not conduct, a conclusion driven home by the author of the opinion in a rejoinder to dissenters.
“Make no mistake: these regulations are content-based restrictions of speech, not conduct,” wrote Judge Britt Grant. “Talk therapy is certainly a form of treatment. But it ‘consists—entirely—of words.’” The 9th Circuit’s Gould, who was joined by fellow Clinton appointee Kim McLane Wardlaw, acknowledged the split in views among the two circuits but ultimately concluded he had to follow his court’s previous ruling.
Ninth Circuit Judge Mark Bennett, a President Donald Trump appointee, wrote a separate concurrence agreeing with the panel was bound by precedent but disagreeing with language in the opinion that he said went farther than was necessary to resolve the case. That leaves open the possibility that he might side with Tingley should the full complement of 29 judges on the appeals court rehear the case.
Alliance Defending Freedom attorneys representing Tingley argued that a 2018 ruling by the Supreme Court undercut the the 2014 decision upholding California’s talk ban. In National Institute of Family & Life Advocates v. Becerra (NIFLA), the Supreme Court struck down a California law requiring crisis pregnancy centers to inform patients about abortion services. The court found the law violated the free speech rights of the centers, concluding that “professional speech” was not a separate category of speech subject to less scrutiny. Yet Gould rejected the argument that NIFLA meant that speech by professionals was never subject to regulation, noting that the ruling was qualified by its recognition that “professional conduct” remained subject to regulation.
Perhaps the most troubling part of the opinion—a part not joined by Circuit Judge Bennett—is one that appears to set parents at odds with children and makes the state, informed by medical association elites, the arbiters of parent-child disagreement.
“Tingley claims that he has minor patients who want to receive conversion therapy,” wrote Gould. “Perhaps he does. But a review of his complaint reveals examples of children who claim to want conversion therapy only after their parents bring them to Tingley for it.” Parents may not know better than professional medical associations and the state, suggests Gould, noting that “this is particularly so when that treatment is encouraged by the sincerely held religious beliefs of their parents, from whom children rely on for shelter, food, and financial support.”
ADF counsel Roger Brooks confirmed that Tingley plans to appeal the ruling. “The government has no business censoring conversations between clients and counselors,” said Brooks. “When this happens, it is the clients who are robbed of the freedom to pursue the lives they want.”
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