First Amendment

9th Circuit upholds ban on conversion therapy for minors in First Amendment challenge

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Washington state’s ban on conversion therapy for minors does not violate the First or 14th Amendments, a federal appeals court ruled on Tuesday.

The San Francisco-based 9th U.S. Circuit Court of Appeals upheld the law, which subjects licensed therapists to discipline if they practice therapy that seeks to change the sexual orientation or gender identity of a person under age 18.

The appeals court said the law was intended to prevent psychological harm to LGBTQ minors subjected to conversion therapy, including depression, self-stigma and emotional distress.

The appeals court ruled against Christian marriage and family counselor Brian Tingley, who claimed the ban on conversion therapy for minors violated his free speech and free exercise rights under the First Amendment. He also claimed the Washington state law was unconstitutionally vague under the 14th Amendment.

The appeals court noted its 2014 decision, Pickup v. Brown, upheld a nearly identical law in California. Tingley had argued, however, that the U.S. Supreme Court abrogated the Pickup decision in 2018 when it ruled for anti-abortion crisis pregnancy centers challenging California’s required notice on the availability of state-subsidized abortions.

The Supreme Court held the abortion-notice law was a content-based restriction that was likely unconstitutional. The case was National Institute of Family & Life Advocates v. Becerra.

The 9th Circuit concluded the NIFLA Supreme Court case “did not abrogate Pickup to the extent that Tingley contends it did.”

All parties agree that the case “abrogated the part of Pickup in which we stated that professional speech, as a category, receives less protection under the First Amendment,” the 9th Circuit said. But Pickup survives because it regulates professional conduct, the appeals court said.

“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,” Judge Ronald Gould wrote in the panel opinion.

Tingley is represented by Alliance Defending Freedom.

Reuters and Bloomberg Law had coverage of the 9th Circuit decision, Tingley v. Ferguson. A lawyer for Tingley, Roger Brooks, told Reuters an appeal is planned.

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