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Washington LGBTQ Conversion Therapy Ban Upheld by Ninth Circuit

Sept. 6, 2022, 7:32 PM

A Washington law that prohibits state-licensed medical professionals from practicing conversion therapy on LGBTQ patients under 18-years old is valid, the Ninth Circuit said Tuesday.

States don’t “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,” the US Court of Appeals for the Ninth Circuit said, holding that the law doesn’t violate the First and 14th Amendments.

Conversion therapy includes treatments intended to change a person’s sexual orientation from gay to straight, or to change their gender identity from transgender to cisgender, the court said. Every major medical, psychiatric, psychological, and professional mental health organization opposes it, the court said.

Health-care providers must be licensed to practice in Washington and may be disciplined for “unprofessional conduct,” including performing conversion therapy on a minor, the court said.

The measure was challenged by Brian Tingley, a marriage and family counselor, who sued state officials alleging that it violates his free speech rights and his religious views regarding homosexuality and gender identity.

But Washington’s law is “nearly identical” to a California law the Ninth Circuit previously upheld against a free speech challenge in Pickup v. Brown, the court said. And Washington’s law, like California’s, regulates conduct, not speech, it said.

Washington’s conversion therapy ban, moreover, was rationally related to the state’s legitimate goal of protecting minors against potentially serious harms caused by the practice, Judge Ronald M. Gould said in the opinion.

The US Supreme Court’s opinion in National Institute of Family & Life Advocates v. Becerra didn’t change the outcome, the court said. NIFLA did away with the professional speech doctrine, but said that a state may regulate professional conduct, even if that conduct incidentally involves speech, the appellate court said.

There is a circuit split on the merits, as the US Court of Appeals for the Eleventh Circuit struck down conversion therapy bans adopted by a Florida city and county. But the Eleventh Circuit did so based on its conclusion that the bans regulated speech, not conduct, the Ninth Circuit said.

Judge Kim McLane Wardlaw joined the opinion. Judge Mark J. Bennett concurred, but declined to join the last part of the majority opinion, which discussed states’ long-standing tradition of regulating health-care practitioners.

Alliance Defending Freedom and Bursch Law PLLC represent Tingley. The Washington Attorney General’s Office represents the state officials. The National Center for Lesbian Rights represents intervenor Equal Rights Washington.

The case is Tingley v. Ferguson, 9th Cir., No. 21-35815, 9/6/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com