The U.S. Supreme Court on Monday declined to take up an important case involving Washington state’s counseling censorship law.
The case was brought by Brian Tingley, a licensed marriage and family counselor in Washington, against the state’s law that prohibits counselors from helping minors struggling with unwanted homosexuality or transgenderism. The Washington State Legislature enacted the law (SB 7522) in 2018.
According to Alliance Defending Freedom (ADF), which filed the suit on Tingley’s behalf, the law “violates Tingley’s freedom of speech and infringes on his religious faith and that of his clients by censoring certain private client-counselor conversations about sexual orientation and gender identity that the government disfavors.”
Justices Kavanaugh, Thomas and Alito all dissented from the court’s decision; the latter two also wrote dissents explaining their reasoning. It takes four votes for the Supreme Court to “grant certiorari” and take up a case, meaning Tingley fell one vote short.
“This petition asks us to consider whether Washington can censor counselors who help minors accept their biological sex,” Justice Thomas wrote in his dissent. “Because this question has divided the Courts of Appeals and strikes at the heart of the First Amendment, I would grant review.”
As Justice Thomas points out, generally the Supreme Court will take up important cases if there is a “circuit split” on the issue at hand. When it comes to counseling censorship laws, the Eleventh Circuit has decided that such laws are unconstitutional, while both the Third Circuit and the Ninth Circuit have upheld bans on therapy for minors struggling with homosexuality or transgenderism.
“Tingley asks us to resolve this Circuit split and review whether SB 7522 violates the First Amendment. We should have,” Justice Thomas wrote, adding,
Under SB 5722, licensed counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities. Expressing any other message is forbidden – even if the counselor’s clients ask for help to accept their biological sex.
That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional.
“I have no doubt that the issue [this case] presents will come before the Court again,” Justice Thomas predicted, “When it does, the Court should do what it should have done here: grant certiorari to consider what the First Amendment requires.”
Justice Alito wrote separately, arguing that the case “presents a question of national importance.”
“In recent years, 20 States and the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy. It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny,” Justice Alito added. “I would grant review.”
As the Daily Citizen has previously stated, “conversion therapy” is a term invented by activists who oppose the truth that some people with same-sex attractions or gender identity confusion don’t want to embrace those thoughts, feelings, identities or behaviors. It is a non-existent practice – but these bans have the effect of prohibiting legitimate professional therapy for those with unwanted sexual identity confusion or homosexual identity, attractions and behaviors.
“We’re disappointed that Washington’s counseling censorship law will continue to prevent many people from getting the help they need,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch, adding,
The law clearly violates the First Amendment by censoring counselors like Brian, and that ultimately hurts his clients. Washington forces counselors to tell their clients that there is no path to affirming their biological sex. It is disappointing that Washington’s censorship regime will remain in place. This issue is not going away.
We urge the Supreme Court to take a similar case when the time comes.
Tingley first filed his complaint in the U.S. District Court for the Western District of Washington in 2021, but Judge Robert Bryan dismissed the case.
He subsequently appealed his ruling to the Ninth U.S. Circuit Court of Appeals, which upheld Washington’s censorship law. This lead Tingley to appeal his case to the U.S. Supreme Court.
All people struggling with unwanted homosexuality and transgenderism should be able to find professional help to live within their moral and religious values. That’s why it’s a tragedy that the Supreme Court has rejected Tingley’s appeal.
It’s very likely the Supreme Court will eventually be persuaded to take up a case involving counseling censorship laws. When it does, the Daily Citizen will bring you the story.
The case is Tingley v. Ferguson.
Focus on the Family exists to help families, and that includes help navigating the issues of homosexuality and transgenderism. Focus offers a free, one-time counseling consultation with a licensed or pastoral counselor. To request a consultation, call 1-855-771-HELP (4357) or fill out our Counseling Consultation Request Form.
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