Supreme Court asked to rule on state law that prohibits therapists from counseling against gender transition

FIRST ON FOX – The Supreme Court has been asked to rule on a Washington state law that bans therapists from encouraging patients against transitioning to a different gender.

On Monday, the Alliance Defending Freedom (ADF), a civil rights nonprofit firm, filed a petition to the Supreme Court for Brian Tingley, a licensed marriage and family therapist in the state who claims the law is unconstitutional because it prohibits certain private client-counselor conversations on sexual orientation and gender.

ADF says the law only allows a one-way discussion about gender transitioning. 

“For example, it allows counseling conversations that aim to steer young people toward a transgender identity but prohibits conversations that aim to help that same person return to comfort with his or her sex,” the group said.

“There are no legal consequences if Petitioner Brian Tingley tells his neighbor about the emerging international medical consensus to treat gender dysphoria with watchful waiting instead of affirmation,” the petition said.

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“But if he discusses that same topic in the same way with a counseling client, the State of Washington can strip his license under Washington’s Counseling Censorship Law… That Law prohibits counselors from engaging in any ‘regime that seeks to change an individual’s sexual orientation or gender identity,’ while exempting counseling that “support[s] … identity exploration” without “seek[ing] to change sexual orientation or gender identity.’”

ADF attorneys are asking the Supreme Court to reverse a 9th Circuit ruling that upheld a district court’s decision to toss out Tingley’s challenge to the law. When that case was decided in the 9th Circuit, state Attorney General Bob Ferguson praised that court for upholding the state’s ban on “conversion therapy,” or efforts by therapists to get people to identify with the gender they were born with.

“Washington’s law prohibiting licensed mental health providers from practicing conversion therapy on minors is not unconstitutionally vague,” the 9th circuit said.

But ADF said the state law effectively bans protected speech between therapists and patients.

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“The government can’t control a counselor’s speech. Washington’s counseling censorship law violates freedom of speech and harms counselors as well as clients,” said ADF counsel John Bursch said in a statement.

“Brian has counseled all types of people for more than 20 years, and those conversations are private — certainly not open for the government to censor. The government has no business dictating what personal goals a client can pursue in counseling,” Bursch said.

ADF says the law threatens fines of $5,000 per violation, suspension from practice, and possible permanent revocation of a counselor’s license.

A similar case out of New York was successfully litigated by the group in 2019 on behalf of Dr. Dovid Schwartz, an Orthodox Jewish psychotherapist who sued New York City claiming that a similar law prohibited certain patient-counselor conversations, which he said violated his free speech rights.

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In light of that lawsuit, the New York City Counsel voted to repeal the law.

The Supreme Court could decide to take up Tingey’s case in the next few months.