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The Next Big Front in the Legal War Against the LGBTQ Community

Conservatives are pushing the Supreme Court to overturn bans on conversion therapy on dubious First Amendment grounds.

Alex Wroblewski/Getty Images
LGBTQ supporters demonstrate outside the U.S. Supreme Court in Washington, D.C., on October 8, 2019.

Fresh off its victory in 303 Creative v. Elenis, the Alliance Defending Freedom has returned with another anti–LGBTQ rights case cued up for the Supreme Court this session. The case in question—Tingley v. Ferguson—involves Brian Tingley, a licensed marriage and family counselor, who is challenging Washington state’s law banning conversion therapy for minors. Tingley, who is being represented by ADF lawyer Kristen K. Waggoner, claims that this ban violates his First Amendment rights.

Tingley is actually arguing his case on two fronts, claming that as a Christian therapist, the law infringes on his rights to both freedom of speech and free exercise of religion. The practice of conversion therapy—defined as any efforts to change a person’s sexual orientation or gender identity through the use of psychoanalysis, behavior modification, spiritual counseling, or physical punishment or coercion—has been widely debunked and discredited by several major health organizations and has been proven to be harmful to the LGBTQ community.

According to the petition Tingley filed before the Supreme Court, Washington’s conversion therapy ban “forbids him from speaking, treating his professional license as a license for government censorship.” Tingley objects to the very definition of conversion therapy, arguing that there are children and teenagers who actually “seek” to “change” their sexual orientation and gender identity and are, therefore, genuinely in need of a therapist. Calling the law’s penalties—which include a $5,000 fine per violation—“draconian,” Tingley claims that he “lives in continuous fear of government persecution” and has “sued to vindicate his constitutional rights.”

Tingley’s case boils down to an argument that the conversations he has as a part of his practice as a counselor should be considered speech and not conduct, attempting to establish legal precedent by citing National Institute of Family and Life Advocates v. Becerra, a 2018 Supreme Court decision involving anti-abortion crisis pregnancy centers in California. In that 5–4 decision, the conservative justices on the court said a California law requiring crisis pregnancy centers to inform pregnant people about state-funded reproductive health services “likely” violated the First Amendment, ruling that the government cannot compel or regulate professional speech. This decision was later used by the Eleventh U.S. Circuit Court of Appeals in 2020 to strike down conversion therapy bans in Palm Beach County and Boca Raton, Florida.

“I think that there’s really significant differences between what the crisis pregnancy centers were arguing, which was, ‘You’re forcing us to say things we don’t want to say,’ as opposed to what’s happening here,” Anthony Michael Kreis, an assistant professor of law at Georgia State University’s College of Law, told The New Republic. “Here the state is saying that there is quasi-medical conduct unfolding in a way that has tangible harms that we’re trying to prevent.”

“This is not a prohibition of conversation,” he said.

Kreis also argues that Tingley’s case is “one of the weakest cases” brought by the ADF and others “in an attempt to attack” and erode LGBTQ rights. Previous cases, such as 303 Creative or Masterpiece Cakeshop v. Colorado Civil Rights Commission, claimed to be dealing with artistic expression and compelled speech, and conversion therapy bans are of “a very different nature” because they’re “dealing with things which are purely about conduct” in a profession that is heavily regulated.

“There is a greater threat of potential state action in a way that most of these other cases seem to be a little bit more manufactured,” he said. “And to the extent that there’s a religious dynamic at play here, all these therapy bans generally have a very clear exemption for things which are purely religious in nature.”

Washington’s ban on conversion therapy, much like similar bans in other states, only applies to licensed therapists and health care professionals and not unlicensed counselors affiliated with religious institutions, which many LGBTQ advocates consider to be a major flaw in these laws.

According to Katherine Franke, the James L. Dohr professor of law at Columbia University, Tingley v. Ferguson is just the “beginning” of the ADF’s plan to treat conduct as speech “when there is a faith-based objection to the regulation,” especially when those objections are rooted in evangelical Christianity.

“We have all sorts of regulations for licensed mental health professionals, and the patients rely on this kind of safety that those licensing requirements impose,” Franke told The New Republic. “Opening the door in this kind of case … opens the door to quite a few other situations where a person may have an objection to what is a public norm or an expert judgment about the safety of other people. It shouldn’t be your private decision that you’re not going to agree with that and therefore [will] not follow that law, when that is a condition of your licensure.”

Tingley’s lawsuit, which was first filed in 2021, was initially dismissed by a U.S. district court the same year; in 2022, the Ninth Circuit Court ruled that Washington’s conversion therapy ban did not violate the state Constitution. However, since there’s a split between the Third and Eleventh Circuit Courts, Tingley claims that the Ninth Circuit’s decision only exacerbates this split. So far, the court has not yet acted on the petition and has relisted it for the past four weeks. While the Supreme Court’s conservative majority has been particularly interested in First Amendment cases as of late, it’s unclear if they will choose to take it up.

The fact that there is a split in the circuits, Franke notes, “often provides a justification for the court to step in and resolve that conflict.” While she says this is a generally reasonable thing for the Supreme Court to do, she does not have the utmost confidence that the court will rule in a way that is unbiased to Tingley and the ADF’s religious convictions.

“I do worry that the more conservative members of the court will be more than open to taking this kind of case, independent of the circuit split,” Franke said, “because it’s the next step in what is the ADF’s agenda, which is to have free speech and religious liberty rights basically become a mechanism by which to supersede any reasonable government regulation that is enacted in the public’s interest.”

While Kreis thinks it’s unlikely that the Supreme Court will decide to hear Tingley’s case because it pertains to the civil rights of children, he also says the court is “somewhat unbridled in their endeavor and enthusiasm to undermine civil rights laws,” adding that he wouldn’t be shocked if they took it up. “I certainly would expect a large sweeping effect from any ruling,” he said.