{"id":273557,"date":"2022-09-12T16:00:41","date_gmt":"2022-09-12T10:30:41","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=273557"},"modified":"2022-09-12T16:00:41","modified_gmt":"2022-09-12T10:30:41","slug":"us-court-of-appeals-9th-circuit-washington-law-prohibiting-licensed-mental-health-providers-practice-conversion-therapy-minors-constitutional-lgbtq-legal-updates-legal-news","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2022\/09\/12\/us-court-of-appeals-9th-circuit-washington-law-prohibiting-licensed-mental-health-providers-practice-conversion-therapy-minors-constitutional-lgbtq-legal-updates-legal-news\/","title":{"rendered":"US Court of Appeals- 9th Circuit| Washington law prohibiting licensed mental health providers from practicing conversion therapy on minors, held constitutional"},"content":{"rendered":"
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United States Court of Appeals for the Ninth Circuit<\/span>: 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. \u201cStates 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<\/i>\u201d.<\/p>\n

Background:<\/span> Conversion Therapy <\/span>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 \u201ccure\u201d<\/i> 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.<\/i><\/p>\n

The American Psychological Association (APA) removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders in 1973 <\/span>and it now views gender nonconforming behaviours as \u201c<\/span>gender dysphoria<\/i>,\u201d rather than as a \u201cgender identity disorder.\u201d <\/span>The APA has twice conducted a systematic review of the research on conversion therapy and adopted a resolution that conversion therapy \u201cputs individuals at a significant risk of harm\u201d and is not effective in changing a person’s gender identity or sexual orientation.<\/span> 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.<\/p>\n

The Laws involved:<\/span> <\/span>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<\/span>, lists actions that are considered \u201cunprofessional conduct\u201d for licensed health care providers and subjects them to disciplinary action. Therapists, counsellors, and social workers who \u201cwork under the auspices of a religious denomination, church, or religious organization<\/i>\u201d are exempted from the Chapter’s requirements.<\/p>\n

However, the law that came before the Court was Senate Bill 5722<\/span>. Washington enacted SB 5722 <\/span>in 2018, which added \u201cperforming conversion therapy on a patient under age eighteen<\/i>\u201d to the list of unprofessional conduct in the Uniform Disciplinary Act for licensed health care providers.<\/p>\n

The Challenge and its Legal Trajectory:<\/span> <\/span>Tingley has worked as a licensed marriage and family therapist for more than twenty years. Although he does not work \u201cunder the auspices of a religious denomination\u201d, his Christian views inform his work. Tingley believes that the sex each person is assigned at birth is \u201ca gift of God\u201d that should not be changed and trumps an individual’s \u201cfeelings, determinations, or wishes.\u201d He also believes that \u201csexual relationships are beautiful and healthy\u201d but only if they occur \u201cbetween one man and one woman committed to each other through marriage.\u201d<\/p>\n

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.<\/p>\n

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<\/span>, 740 F.3d 1208 (9th Cir. 2014), remained good law and applied the same to reject Tingley’s constitutional claims.<\/p>\n

Aggrieved by the decision of the District Court, Tingley went in appeal.<\/p>\n

Observations and Findings: <\/span>Perusing the facts, relevant laws and its own precedents, the Court of Appeals made the following observations-<\/p>\n