Brian Tingley has been a licensed therapist in Washington State for 20 years. Because of a law passed by the state legislature in 2018, however, he could be fined up to $5,000 and lose his license if he counsels a minor dealing with unwanted feelings of same-sex attraction or confusion over his or her gender identity in any way that could be construed as an attempt to “change” that minor.
The law doesn’t prevent Tingley, a Christian, from affirming a client’s desire to engage in same-sex relationships or change gender identity, even if that client wants help in resisting those desires. In that case, doing the opposite of what the client wants is perfectly fine, according to the law. But taking the Christian approach to helping a young person deal with such sensitive issues, including those minors who want their feelings and actions to line up with their own Christian beliefs, is illegal.
In other words, Tingley can only speak the government’s approved message concerning sexual orientation and gender identity, not the Bible’s. And his clients can only hear the government’s approved message, even if they desire to hear something to the contrary. And Tingley says that’s infringing his and his clients’ rights of free speech and the free exercise of religion.
With help from attorneys at Alliance Defending Freedom (ADF), Tingley is suing Washington State officials in federal court, asking that the law, Senate Bill 5722, be declared unconstitutional and that he and his clients be free to engage in talk therapy without interference from the state.
Laws such as SB 5722, sometimes called “conversion therapy bans,” are essentially, as Tingley’s legal complaint labels them, “counseling censorship laws.” They forbid counselors like Tingley from simply talking to their minor clients on a subject where the government says there is only one correct and approved view.
Such laws have typically passed in legislatures around the country after anecdotal testimony by the law’s supporters about unidentified “counselors” somewhere using shock therapy or other aversive techniques designed to “change” a person’s sexual orientation. Those aversive techniques have allegedly caused physical and psychological harm to the counselee. However, even when no such complaints have ever been filed against any licensed counselor in the state – including Washington – the legislatures ban all therapy, including talk therapy, on the theory that they are preventing “harm” to minors.
Do you see what’s going on there? Legislatures hear some form of testimony about aversive therapy and physical harm, and are rightfully indignant and empathetic, but then they ban all forms of therapy, including talk therapy. Simply sitting in a chair across from a client and talking to them is equated, in the law, to attaching electrodes to the client and shocking them until their behavior changes.
That’s outrageous. Why would legislators lump those forms of “therapy” together unless there’s another agenda being followed?
No one should be causing physical harm to minors, of course, and a law limited to such harms would not cause even a ripple in the counseling profession or in the larger Christian culture. But some legislatures push an LGBT agenda that’s both anti-science and anti-Christian, and the result is an infringement of the First Amendment.
In an email to The Daily Citizen, ADF Senior Counsel Roger Brooks commented on the lawsuit:
“All Americans, secular or religious, deserve the right to private conversations, free from government censorship. The state of Washington doesn’t get to ban speech it dislikes; that’s not what free speech means. Washington’s counseling censorship law targets people of faith and threatens to stand between Brian’s clients and the personal counseling goals they choose to pursue with his help. As the U.S. Supreme Court noted in its 2018 NIFLA decision, ‘the people lose when the government is the one dictating which ideas should prevail.’”
But banning free speech is exactly what the Washington state government intends to do to Tingley and any other licensed therapist who wants to sit down with and talk to a minor about such issues. And the situation creates a legal and constitutional issue of major significance.
The federal courts around the country that have heard these types of cases are decidedly split in their decisions.
In 2014, after the first of these bans arose, the 3rd U.S. Circuit Court of Appeals and the 9th U.S. Circuit Court of Appeals upheld state laws in New Jersey and California banning “conversion therapy.”
In Maryland in 2019, another “conversion therapy” ban was upheld by a federal district judge. But that same year, a Tampa ordinance banning such therapy was struck down by a federal judge on First Amendment grounds. That decision was later affirmed on appeal to the 11th U.S. Circuit Court of Appeals.
Also in 2019, a similar case was brought by ADF on behalf of a licensed therapist against New York City involving its ordinance forbidding such counseling. After reconsidering the wisdom of its actions, the city rescinded its ban and then settled with the therapist by paying a large sum of money as compensation for the city’s First Amendment violations.
Only time will tell in Brian Tingley’s case whether the 9th Circuit, where Washington State is located, will back away from its earlier decision affirming such counseling censorship laws, in light of the Supreme Court’s NIFLA decision. If it doesn’t, this case could be headed to the U.S. Supreme Court.
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