The First Amendment and Sexual Orientation "Conversion Therapy"—Next Stop, the Supreme Court?

From Judge Diarmuid O'Scannlain's opinion respecting rehearing en banc released today (and joined by Judges Sandra Ikuta, Ryan Nelson, and Lawrence VanDyke) in Tingley v. Ferguson:

Is therapeutic speech speech? Does a tradition of licensing a given profession override all First Amendment limits on licensing requirements? The three-judge panel answered 'no' to the first question, and a majority of the panel answered 'yes' to the second. In my view, both holdings are erroneous and significant constitutional misinterpretations, and I respectfully dissent from our court's regrettable failure to rehear this case en banc.

First, the panel said that therapeutic speech is non-speech conduct and so protected only by rational basis review. True, it reached this result by faithfully applying our decision in Pickup v. Brown, which held that a California ban on "sexual orientation change efforts" was a regulation of professional conduct only incidentally burdening speech. But the Supreme Court has rejected Pickup by name. Nat'l Inst. of Family & Life Advocates v. Becerra ("NIFLA") (2018). And other circuits have rejected Pickup's holding, concluding instead that therapeutic speech is—speech, entitled to some First Amendment protection. See King v. Governor of New Jersey (3d Cir. 2014); Otto v. City of Boca Raton (11th Cir. 2020). The panel's defense of Pickup's continuing viability is unconvincing. We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.

Second, a majority of the panel purported to discover a "long (if heretofore unrecognized) tradition of regulation" which warrants applying only rational basis review to laws burdening therapeutic speech. In reality, the majority drew out a gossamer thread of historical evidence into a sweeping new category of First Amendment exceptions. If new traditions are so easily discovered, speech-burdening laws can evade any level of scrutiny simply by identifying some legitimate purpose which they might serve. We should have granted rehearing en banc also to clarify that regulation of the medical profession is not a First-Amendment-free zone.

Judge Patrick Bumatay also thought the court should have reheard the case en banc:

The issues at the heart of this case are profoundly personal. Many Americans and the State of Washington find conversion therapy—the practice of seeking to change a person's sexual orientation or gender identity—deeply troubling, offensive, and harmful. They point to studies that show such therapy ineffective. Even worse, they claim that conversion therapy correlates with high rates of severe emotional and psychological trauma, including suicidal ideation. Under the appropriate level of judicial review, these concerns should not be ignored.

But we also cannot ignore that conversion therapy is often grounded in religious faith. According to plaintiff Brian Tingley, a therapist licensed by the State of Washington, his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings. Tingley treats his clients from the perspective of a shared faith, which he says is conducive to establishing trust. And as part of his therapeutic treatment, Tingley counsels his clients to live their lives in alignment with their religious beliefs and teachings.

To be sure, the relationship between the LGBT community and religion may be a complicated one. But as with any community, members of the LGBT community have different experiences with faith. According to one 2013 survey, 42% of LGBT adults identify as "Christian." Forty-three percent consider religion to be important in their lives—including 20% who say it is "very important" to them. A more recent study found that 46.7% of LGBT adults, or 5.3 million LGBT Americans, are religious. Thus, for many who voluntarily seek conversion therapy, faith-based counseling may offer a unique path to healing and inner peace. Indeed, Tingley only works with clients who freely accept his faith-based approach.

Ordinarily, under traditional police powers, States have broad authority to regulate licensed professionals like Tingley. Under that authority, the State of Washington has banned the practice of conversion therapy on minors. The prohibition applies to all forms of the treatment, including voluntary, non-aversive, and non-physical therapy. In other words, Washington outlaws pure talk therapy based on sincerely held religious principles. As a result, Tingley cannot discuss traditional Christian teachings on sexuality or gender identity with his minor clients, even if they seek that counseling. While States' regulatory authorities are generally broad, they must give way to our Constitution.

{Washington notes that conversion therapy may encompass more pernicious practices, such as electric shock treatment or the use of nausea-inducing drugs. I have little doubt that a law prohibiting coercive, physical, or aversive treatments on minors would survive a constitutional challenge under any standard of review. But Washington's law proscribes a broad range of counseling, some of which would clearly be classified as voluntary, religious, and speech. Under Tingley's constitutional challenge, we must focus on the law's impact on these aspects of conversion therapy.}

And here, the First Amendment protects against government abridgment of the "freedom of speech." No matter our feelings on the matter, the sweep of Washington's law limits speech motivated by the teachings of several of the world's major religions. Such laws necessarily trigger heightened levels of judicial review. After all, "religious and philosophical objections" to matters of sexuality and gender identity "are protected views and in some instances protected forms of expression." As Judge O'Scannlain writes, religious speech gains "special solicitude" under the First Amendment. And those protections don't dissipate merely because Tingley is a licensed therapist. In the free exercise context, the Court has recently remarked that the First Amendment protects "the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life." That principle applies equally when faith takes the form of speech.

Because the speech underpinning conversion therapy is overwhelmingly—if not exclusively—religious, we should have granted Tingley's petition for en banc review to evaluate his Free Speech claim under a more exacting standard. It may well be the case that, even under heightened review, Washington's interest in protecting minors would overcome Tingley's Free Speech challenge. But our court plainly errs by subjecting the Washington law to mere rational-basis scrutiny.

It is a "bedrock principle" of the First Amendment that the government cannot limit speech "simply because society finds the idea itself offensive or disagreeable." While I recognize that the speech here may be unpopular or even offensive to many Americans, it is in these cases that we must be most vigilant in adhering to constitutional principles. Those principles require a heightened review of Tingley's Free Speech claim. It may be easier to dismiss this case under a deferential review to Washington's law, but the Constitution commands otherwise….

Here's an excerpt from the panel opinion, by Judge Ronald M. Gould, joined by Judge Kim McLane Wardlaw and, as to the discussion of Pickup, by Mark J. Bennett:

This appeal requires us to decide, again, whether a state may prohibit health care providers operating under a state license from practicing conversion therapy on children. Twenty states and the District of Columbia have laws prohibiting or restricting the practice of conversion therapy, which seeks to change an individual's sexual orientation or gender identity. This appeal concerns Washington's law that subjects licensed health care providers to discipline if they practice conversion therapy on patients under 18 years of age.

In 2014, we upheld a substantially similar law enacted by California that subjects its state-licensed mental health providers to discipline for practicing conversion therapy on minor clients. Pickup v. Brown (9th Cir. 2014). Finding itself bound by Pickup, the district court in this case dismissed Plaintiff Brian Tingley's challenge to Washington's nearly identical law.

We affirm. 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….

NIFLA did not abrogate Pickup to the extent that Tingley contends it did. All parties agree that NIFLA abrogated the part of Pickup in which we stated that professional speech, as a category, receives less protection under the First Amendment. There is no question that NIFLA abrogated the professional speech doctrine, and its treatment of all professional speech per se as being subject to intermediate scrutiny. But Tingley instead contends that NIFLA abrogated Pickup in full, and that Pickup and NIFLA are irreconcilable to the point where Pickup is no longer binding law. We do not agree….

In addition to following our precedent in Pickup, we have an additional reason for reaching the conclusion that we reach today. The Supreme Court has recognized that laws regulating categories of speech belonging to a "long … tradition" of restriction are subject to lesser scrutiny. Washington's law regulates a category of speech belonging to such a tradition, and it satisfies the lesser scrutiny imposed on such laws….

There is a long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders. And such regulation of the health professions has applied to all health care providers, not just those prescribing drugs. In Collins v. Texas (1912), for instance, the Court affirmed the conviction of a man practicing osteopathy without a license, reasoning that "[i]t is true that he does not administer drugs, but he practises what at least purports to be the healing art." Texas, and all other states, "constitutionally may prescribe conditions to such practice, considered by it to be necessary or useful to secure competence in those who follow it." The Court provided a long list of cases from state courts similarly establishing "the right of the state to adopt a policy even upon medical matters concerning which there is difference of opinion and dispute." …

Perhaps there are some procedural problems that I'm missing here, but the case seems teed up for possible Supreme Court review, especially given the split between the Ninth Circuit and the Eleventh Circuit noted in Judge O'Scannlain's opinion (as well as the difference between the Ninth Circuit's approach and the Third Circuit's).