SCOTUS rejects appeal on banning conversion therapy

The U.S. Supreme Court

LISA KEEN | Keen News Service
lisakeen@mac.com

LGBTQ legal activists expressed a “relief” Monday, Dec. 11, when the U.S. Supreme Court rejected the appeal of a therapist who challenged Washington state’s law prohibiting “conversion therapy” for anyone under 18.

The vote was 6-to-3 and was issued with dissents written by Justices Clarence Thomas and Samuel Alito. The third dissenting justice was Brett Kavanaugh. At least four justices must agree to hear a case before an appeal is accepted for argument.

The case originated with the anti-LGBTQ organization Alliance Defending Freedom, which challenged the constitutionality of a 2018 state law in Washington state. The law prohibits licensed therapists from using “conversion therapy” on anyone under 18. A therapist using conversion therapy would be deemed as engaging in “unprofessional conduct” and would lose their license to practice.

The ADF filed its lawsuit on behalf of Brian Tingley, a family therapist in Tacoma. According to the ADF’s briefs, the ban violates the therapist’s First Amendment rights to free speech and freedom of religion.

Washington State Attorney General Robert Ferguson defended the state’s law, and Equal Rights Washington joined the defense. Both the district in Washington State and Ninth Circuit U.S. Court of Appeals rejected ADF’s arguments. ADF appealed to the U.S. Supreme Court.

The six justices in the majority did not provide any explanation; they do not have to, and they typically do not. Two of the three dissenting justices did.

Justice Thomas’ dissent said he would have taken the appeal because a number of lower courts had issued conflicting opinions on the issue and because the case “strikes at the heart of the First Amendment.”

“There is a fierce public debate over how best to help minors with gender dysphoria,” wrote Thomas. Washington state, he said, “silenced one side of this debate by enacting” the ban against use of conversion therapy on minors.

Thomas said the state ban on conversion therapy, which Thomas said was “conducted solely through speech,” had the effect of barring a therapist from helping a young person to “accept their biological sex.”

The American Psychiatric Association, in a position statement released in 2018, urged therapists to “refrain from attempts to change individuals’ sexual orientation.” The American Psychological Association and 27 other major mental health organizations endorsed a “United States Joint Statement Against Conversion Efforts” position statement in August:

“Most major professional associations already have position statements about Lesbian, Gay, Bisexual, Transgender, Questioning, Queer, and Non-binary (LGBTQ+) health and/or the ineffectiveness and potential harms of conversion efforts. … Research and experience shared by scholars, clinicians and patients have shown conversion efforts have not changed sexual orientation or gender identity/expression (SOGIE) and are harmful.”

GLAD attorney Jennifer Levi said the Supreme Court’s rejection of the Tingsley appeal came as a “huge relief.”

“Conversion therapy bans have been an important step in ensuring that young people do not have to suffer through these harmful practices,” she said. “Conversion therapy bans reflect the state’s appropriate regulation of mental health treatment, as the Ninth Circuit Court of Appeals rightly determined. There was no reason for the Supreme Court to review that decision. [The] denial of [the appeal] allows Washington’s important law to stand.”

Mathew Shurka of the National Center for Lesbian Rights, also called the Supreme Court’s denying appeal in Tingsley a “huge relief.” Laws banning conversion therapy, said Shurka, “play a critical role in protecting LGBTQ minors and their families from this dangerous practice… .”

Shurka added that conversion therapy “drives LGBTQ youth to self-hatred and despair … which tragically isolates LGBTQ youth from their families. As a survivor of this damaging practice, I know firsthand how damaging these practices can be.”

Shurka is co-founder of NCLR’s “Born Perfect,” a program to end conversion therapy.

In his dissent, Justice Thomas called the Washington state law a “state-approved message of encouraging minors to explore their gender identities.” He predicted another case presenting the same issue would again reach the high court.

Justice Samuel Alito’s dissent said the case presented “an issue of national importance,” noting that D.C. and 20 states have laws banning conversion therapy.