A three-judge panel of the 9th U.S. Circuit Court of Appeals has unanimously upheld a Washington state law prohibiting conversion therapy for minors.
The decision was issued September 6 and praised by Born Perfect, a project of San Francisco-based National Center for Lesbian Rights. Equal Rights Washington, which intervened in the case to help the state attorney general defend the law, was represented by NCLR, a news release stated.
In 2018, Washington banned licensed mental health professionals from subjecting youth to conversion therapy, which supporters argue helps people who don't want to be LGBTQ turn straight. The practice, however, has been widely discredited and condemned by major medical organizations, including the American Medical Association. The American Psychiatric Association in 2018 issued an official statement encouraging legislation banning the practice on minors, among other findings. The same organization struck homosexuality from its list of mental illnesses in 1973.
Washington's law is very similar to a law passed by California back in 2012, the first in the nation to do so. Opposed by Republicans, California's Senate Bill 1172 was signed into law by then-governor Jerry Brown, who said at the time, "This bill bans non-scientific 'therapies' that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery."
California law challenged years ago
In December 2012, the California law was challenged by the Pacific Justice Institute, a conservative "legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties," according to the group's website, on the basis that it infringed upon freedom of speech and religion. Judge William Schubb, who was appointed by President George H.W. Bush in 1990, ruled with challengers granting a preliminary injunction against the law. That didn't last long, however. The 9th Circuit ruled in favor of the state. In 2014, the U.S. Supreme Court declined to hear two challenges to that ruling, effectively letting the law stand.
Since then, 20 states and the District of Columbia have put laws banning conversion therapy for minors on the books, and six more have put some partial bans in place. Currently, three states -- Alabama, Florida, and Georgia — are "in a federal judicial circuit with a preliminary injunction currently preventing enforcement of conversion therapy bans," according to the Movement Enhancement Project, a think tank focusing on LGBTQ equality.
Washington state law
Washington state enacted its law in 2018 but, three years later it was challenged by conversion therapist Robert Tingley, claiming it violated his and his clients' rights to free speech and religion.
Tingley "claimed the state ban on conversion therapy by licensed practitioners had chilled his speech and that he has self-censored himself out of fear of enforcement," reported Court House News Service on September 6. "Tingley, according to the ruling, believes that the sex each person is assigned at birth is 'a gift of God' that should not be changed and trumps an individual's 'feelings, determinations, or wishes.'"
The 9th Circuit panel — Judges Ronald Gould, Kim Wardlaw, and Mark Bennett — rejected Tingley's claim that a U.S. Supreme Court ruling in 2018 in National Institute of Family & Life Advocates v. Becerra, blocking enforcement of a California law that required faith-based pregnancy centers to inform clients about the state's subsidized medical care including abortion care, was applicable to his case. That ruling found that the law violated the First Amendment, by compelling speech from center employees that was contrary to their own beliefs.
The panel said Tingley "had standing to bring his claims in an individual capacity and the claims were prudentially ripe. Tingley's complaint showed a plan or desire to violate Washington's law; Washington confirmed that it will enforce the ban on conversion therapy 'as it enforces other restrictions on unprofessional conduct;' and Tingley alleged that the law had chilled his speech and that he has self-censored himself out of fear of enforcement."
Tingley did not, however, have the right to represent the interests of his clients, the judges ruled, nor was he able to establish that enforcement of the law prevented his clients from having access to information they wanted to hear.
"Tingley does not explain how a law that allows minors to seek conversion therapy from counselors practicing under the 'auspices of a religious denomination,' ... denies his clients 'access to ideas that they wish to hear, and to counseling that is consistent with their own personal faith.'"
That medical treatments are performed through speech "rather than through scalpel" does not negate the state's power to regulate those treatments, the panel said.
In its 3-0 decision, the panel ultimately ruled, "In relying on the body of evidence before it as well as the medical recommendations of expert organizations, the Washington Legislature rationally acted by amending its regulatory scheme for licensed health care providers to add '[p]erforming conversion therapy on a patient under age eighteen' to the list of unprofessional conduct for the health professions."
NCLR praised the decision. Shannon Minter, a trans man who is legal director for the organization, argued on behalf of Equal Rights Washington during the hearing in Tacoma, Washington last year, according to a release from NCLR.
"We are thrilled by today's decision, which ensures that Washington's lifesaving law can continue to be enforced and that LGBTQ children in Washington will not be subjected to these discredited practices, which have been rejected as unsafe by every major medical organization in this country," stated Minter September 6.
Mathew Shurka, co-founder of Born Perfect, NCLR's program that seeks to end conversion therapy, said conversion therapy harms young people.
"Laws like Washington's are critical to protecting minors and parents from being harmed by unethical therapists who falsely claim to be able to prevent a child from being gay or transgender," Shurka, a gay man, said. "As a survivor of more than five years of conversion therapy, I know firsthand how damaging these practices are to young people and their families. The medical community has rejected these practices because they are harmful, ineffective, and unnecessary. Being LGBTQ is not a mental health disorder. Trying to change such a fundamental aspect of a person's identity is not only impossible, it is profoundly dangerous and causes serious, lasting harm."
Courts around the country have upheld similar laws in the 9th and 3rd Circuits and by federal district courts in Maryland, Florida, and Illinois.
According to NCLR, the sole exception is a split decision in 2020 by a three-judge panel of the 11th Circuit in Otto v. Boca Raton, which reversed a federal district court opinion upholding two Florida municipal ordinances that protected minors from conversion therapy. The 11th Circuit declined to rehear the case en banc (the whole circuit) earlier this year, despite strong dissenting opinions noting that the panel's decision improperly disregarded the district court's factual findings and misapplied First Amendment law.
LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact Eric Burkett at [email protected]
Help keep the Bay Area Reporter going in these tough times. To support local, independent, LGBTQ journalism, consider becoming a BAR member.