Conversion Therapy Filing Relies on Anti-Abortion Legal Strategy

A Washington state therapist is trying to reopen a ruling that’s prevented him from discussing sexual orientation or gender identity with patients under age 18, based on a subsequent US Supreme Court decision.

States used a similar strategy to try to invalidate injunctions against abortion restrictions deemed invalid under Roe v. Wade before the top court reversed it in Dobbs v. Jackson Women’s Health Organization. They were met with mixed results.

Brian Tingley says the US District Court for the Western District of Washington should grant him relief from a 2021 judgment dismissing his First Amendment challenge to the state’s law banning conversion therapy for minors in light of the high court’s recent ruling that a similar Colorado ban was viewpoint-based. The eight-justice majority in Chiles v. Salazar held the Colorado ban had to be evaluated using a strict scrutiny analysis.

It also “explicitly” said the decision against Tingley was wrong, said Jonathan Scruggs, vice-president of litigation strategy at Alliance Defending Freedom, which represents him. Chiles “effectively reversed” the decision against Tingley, he said. ADF also represented Chiles.

An advocate for transgender rights, however, said the top court didn’t go that far. The Supreme Court said “that the Colorado statute could only be upheld if it met the strict scrutiny standard,” said Shannon Minter, legal director for the National Center for LGBTQ Rights. It sent the case back to a lower court to evaluate the law using the most stringent test of constitutionality, he said.

Minter represents Equal Rights Washington, a group that intervened at the trial court to help Washington defend the ban.

Still, Scruggs is “pretty confident” the district court will reopen the case and allow Tingley to move to block the ban’s enforcement or request summary judgment. The justices “have spoken” on the free-speech question, Scruggs said, adding that “the state would be foolish to try to enforce the law.”

He said the abortion cases are distinguishable because Washington hasn’t been enjoined from enforcing its ban against Tingley.

Regardless of the outcome here, the decision on Tingley’s motion may have a persuasive effect in the 23 other jurisdictions that ban conversion therapy, said Aaron-Andrew Bruhl, a professor at William & Mary Law School.

Federal Procedure

Fed. R. Civ. P. 60(b) allows courts to grant relief from a final judgment for a valid reason, such as newly discovered evidence, Bruhl said. Subsection (6), under which Tingley filed the late-May motion, is a “grab bag” provision that can be applied to a variety of situations, including a change in the law, he said.

The usual rule, however, is that a losing party can appeal, and the loser at the appeals court can petition the Supreme Court for review, Bruhl said; normally once a case is done, “it’s done.” Courts favor finality and typically don’t “go back and reopen the case in light of new information or changes in the law or to have a do-over for some reason.”

But there’s sometimes a good reason to revisit a case, Bruhl said. Rule 60(b)(6) requires movants to show the case involves “extraordinary circumstances.” This is a stringent standard but these motions are decided on a case-by-case basis, and Tingley’s “is the kind of case where a court might want to reopen the judgment,” he said.

Minter disagreed, saying Tingley’s facing an uphill battle. There’s a serious question as to whether there are extraordinary circumstances that would justify vacating the judgment, as well as whether the motion was filed within a reasonable time, he said. It also might be more appropriate for someone who wants to rely on Chiles to invalidate Washinton’s ban to file a new case instead, he said.

Washington’s Response

Washington’s response likely will be key, Bruhl said. It could say Chiles doesn’t apply because Washington’s ban differs from the Colorado law or because Tingley isn’t in the same position as therapist Kaley Chiles. These seem unlikely because the provisions appear to be substantially similar and both therapists want to be able to discuss LGBTQ+ issues with their clients, he said.

But, while it’s clear eight justices thought the Colorado law was unconstitutional, they didn’t determine if the state had a compelling reason for it and whether it was narrowly tailored to serve those interests, Bruhl said.

The same issue will arise even if the district court grants Tingley’s motion, Minter said. It’s entirely possible the state can pass the strict scrutiny test because Washington has evidence conversion therapy harms minors, while Tingley had “zero” evidence that it doesn’t, Minter added.

A win for Tingley also might be short-lived because Chiles doesn’t prevent Washington from repealing this law and enacting a new, viewpoint-neutral one, Minter said. The Supreme Court “didn’t endorse conversion therapy bans in any way or deny they’re harmful,” he said. Instead, Minter added, the justices “focused very narrowly” on aspects of the Colorado law they thought targeted expressive speech, seeming “to leave the door wide open for states to reenact these laws” using viewpoint-neutral language.

Colorado is attempting to do just that, Minter said. Gov. Jared Polis (D) on June 1 signed into law a provision that allows people injured as a result of therapy to sue licensed mental health professionals for malpractice if the therapist sought to “direct them toward a predetermined sexual orientation or gender identity outcome or eliminate or reduce sexual or romantic attractions or feelings toward individuals of a particular sex or gender.”

The district court dismissed Tingley’s case saying Washington’s law validly regulated professional conduct and didn’t violate his free-speech rights. The US Court of Appeals for the Ninth Circuit affirmed, and the US Supreme Court denied review in 2023.

Mike Faulk, deputy communications director at the Washington State Attorney General’s Office, said they’re reviewing the motion. The state’s response is due June 25.

The case is Tingley v. Brown, W.D. Wash., No. 21-cv-5359, motion filed 5/27/26.