United States Court of Appeals for the Ninth Circuit: While deliberating upon the constitutionality of Washington’s Senate Bill 5722, the question arose that whether a state may prohibit health care providers operating under the state license from practicing conversion therapy on children; the Panel of Judges comprising of Kim McLane Wardlaw, Ronald M. Gould, and Mark J. Bennett, Circuit Judges, held that Washington’s licensing scheme for health care providers which disciplines them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. “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”.

Background: Conversion Therapy encompasses therapeutic practices and psychological interventions that seek to change a person’s sexual orientation or gender identity. The goal of such therapy is to change an individual’s sexual orientation from gay to heterosexual or to change an individual’s gender identity from transgender to cisgender. Developed in the mid-nineteenth century, conversion therapy was used to “cure” patients of homosexual desires and gender-nonconforming behaviours, which were viewed at that time as mental illnesses. Such views, once held by professional organizations in the psychology and psychiatric fields, have evolved with time and research.

The American Psychological Association (APA) removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders in 1973 and it now views gender nonconforming behaviours as “gender dysphoria,” rather than as a “gender identity disorder.” The APA has twice conducted a systematic review of the research on conversion therapy and adopted a resolution that conversion therapy “puts individuals at a significant risk of harm” and is not effective in changing a person’s gender identity or sexual orientation. The APA opposes conversion therapy in any stage of the education of psychologists and instead encourages psychologists to use an affirming, multicultural, and evidence-based approach.

The Laws involved: Washington’s Revised Code requires health care providers to be licensed before they may practice in Washington. Chapter 130 of Title 18, Washington’s Uniform Disciplinary Act, lists actions that are considered “unprofessional conduct” for licensed health care providers and subjects them to disciplinary action. Therapists, counsellors, and social workers who “work under the auspices of a religious denomination, church, or religious organization” are exempted from the Chapter’s requirements.

However, the law that came before the Court was Senate Bill 5722. Washington enacted SB 5722 in 2018, which added “performing conversion therapy on a patient under age eighteen” to the list of unprofessional conduct in the Uniform Disciplinary Act for licensed health care providers.

The Challenge and its Legal Trajectory: Tingley has worked as a licensed marriage and family therapist for more than twenty years. Although he does not work “under the auspices of a religious denomination”, his Christian views inform his work. Tingley 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.” He also believes that “sexual relationships are beautiful and healthy” but only if they occur “between one man and one woman committed to each other through marriage.”

Tingley sued Washington State officials in May 2021, seeking to enjoin SB 5722. He alleged that Washington’s ban on practicing conversion therapy on minors violates his free speech and free exercise rights under the First Amendment, as well as those of his clients, and that the law is unconstitutionally vague under the Fourteenth Amendment.

The District Court granted Washington’s motion to dismiss and held that Tingley had standing to bring claims in his individual capacity but that he lacked standing to bring claims on behalf of his minor clients. As to the merits, the District Court recognized that Court of Appeals decision in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), remained good law and applied the same to reject Tingley’s constitutional claims.

Aggrieved by the decision of the District Court, Tingley went in appeal.

Observations and Findings: Perusing the facts, relevant laws and its own precedents, the Court of Appeals made the following observations-

  • Agreeing with the assessment of the District Court, the Circuit Judges observed that Tingley has standing to bring his claims in an individual capacity but, does not have standing to bring claims on behalf of his minor clients. “Tingley has alleged a sufficiently close relationship with his current clients to meet this standard. But Tingley makes generalized statements about the rights of his clients that are purportedly violated by this law, claiming that the law denies clients “access to ideas that they wish to hear, and to counselling that is consistent with their own personal faith, life goals and motivations.” Tingley does not explain how a law that allows minors to seek conversion therapy from counsellors practicing under the ‘auspices of a religious denomination’”.

  • Analysing the merits of Tingley’s claims regarding constitutionality of the Washington Law, the Court referred to tis precedent in Pickup v. Brown, wherein a nearly identical law enacted by California that prohibited licensed mental health providers from performing any sexual orientation change efforts on minors, was upheld by the Court. It was observed that both Washington and California amended their code of professional conduct for licensed mental health providers to specify that practicing conversion therapy on minors would be considered unprofessional conduct subject to discipline.

  • It was further observed that the Washington law restricted licensed providers from performing conversion therapy on minors because of the demonstrated harm that results from these practices, and not to target the religious exercise of health care providers. Washington’s law does not prevent health care providers from communicating with the public about conversion therapy.

    “The legislature’s asserted intent in enacting SB 5722 was to regulate ‘the professional conduct of licensed health care providers’. It found that it had a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by conversion therapy.”

  • Evaluating the neutrality of the impugned law, the Court observed that the law’s express protection for the practice of conversion therapy in a religious capacity is at odds with Tingley’s assertion that the law inhibits religion. “Tingley all but concedes the law is facially neutral, instead arguing that facial neutrality is ‘not determinative” and advocating what he sees as “subtle departures from neutrality’”. It was further noted that SB 5722 even-handedly prohibits health care providers from performing conversion therapy on minors, whether those minors seek it for religious or non-religious reasons: “the same conduct is outlawed for all.”

    “SB 5722 is a neutral law targeted at preventing the harms associated with conversion therapy, and not at the religious exercise of those who wish to practice this type of therapy on minors”.

  • The Court further pointed out that SB 5722 is not targeted towards anecdotal reports of regret from sex reassignment surgery or the prescription of puberty blocking drugs; instead, the law is targeted toward the scientifically documented increased risk of suicide and depression from having a licensed mental health provider try to change someone. These harms are not the same.

  • Analysing that whether the impugned law is constitutionally vague or not, the Court rejected Tingley’s claims stating that terms like “sexual orientation” and “gender identity”. The Court stated that “sexual orientation” and “gender identity” have common meanings that are clear to a reasonable person, let alone a licensed mental health provider. The Court observed that SB 5722 is not unconstitutionally vague as by its terms, the law gives fair notice of what conduct is proscribed to a reasonable person, and certainly to a license-holding provider with the specialized, technical knowledge of the psychology. The law contains standards limiting the discretion of those who will enforce it, and it does not matter that the law allows individuals to initiate actions for injunctive relief because, the law ‘provides both sufficient notice as to what is prohibited and sufficient guidance to prevent against arbitrary enforcement’.

Conclusion/ Decision: With the afore-stated observations, the Court of Appeals affirmed the decision of the District Court to dismiss Tingley’s claims and upheld Washington’s SB 5722 stating that the law is not vague and is well within the well-established tradition of constitutional regulations on the practice of medical treatments.

[Brian Tingley v. Robert W. Ferguson, 2022 SCC OnLine US CA 9C 1, decided on 06-09-2022]

*Sucheta Sarkar, Editorial Assistant has prepared this brief.

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