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Washington Law Against Conversion Therapy Survives Constitutional Attack

Posted on: September 7th, 2022 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, which included the first member of that bench appointed by President Donald Trump, unanimously ruled in Tingley v. Ferguson, 2022 WL 4076121 (September 6) that a circuit precedent from 2014, Pickup v. Brown, 740 F. 3d 1208, which rejected a constitutional challenge to California’s ban on conversion therapy for minors, is still a binding precedent in the 9th Circuit, thus affirming U.S. District Judge Robert J. Bryan’s decision (557 F.Supp.3d 1131 [W.D. Wash., 2021] to dismiss a challenge to a virtually identical law enacted in 2018 by the state of Washington.

The only real point of suspense in the case was what effect the panel might give to the U.S. Supreme Court’s decision in 2018 in National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361.  Three-judge panels of a circuit court of appeals are bound by past decisions of the circuit court unless they are reversed or superseded by an “en banc” decision (in the 9th Circuit an expanded panel of eleven judges) or by the U.S. Supreme Court.  The 2018 decision is usually referred to as the NIFLA case.

NIFLA operates a “pregnancy clinic” that counsels its clients not to resort to abortion.  It challenged a California statute that required licensed pregnancy clinics to inform clients that California law provides free or low-cost family planning services, including abortion.  NIFLA claimed that this requirement violated its free speech rights, compelling it to speak the state’s message rather than its own.  The 9th Circuit rejected that challenge, finding that the state could regulate “professional speech” as a distinct category of speech enjoying less protection under the 1st Amendment than other categories, such as political or artistic speech.

The Supreme Court reversed with an opinion by Justice Clarence Thomas, stating that “professional speech” was not less protected by the 1st Amendment than other forms of speech, and specifically criticizing decisions by the 3rd and 9th Circuits that had rejected free speech challenges to state laws designating performance of conversion therapy by licensed counselors as professional misconduct for which they could incur professional discipline.   Both of those cases had referred to “professional speech” as being less protected than other forms of speech.

In this new challenge to Washington’s law, licensed counselor Brian Tingley, who describes himself as a “Christian counselor” who attempts to get children to feel comfortable with their biological sex and to minimize homosexual attractions, sued with the representation of Alliance Defending Freedom, claiming that after the NIFLA decision, the 9th Circuit’s prior rulings on conversion therapy were no longer valid precedents.

District Judge Bryan disagreed, finding that the prior rulings had not depended solely on the “professional speech” theory.  Instead, the district court considered a regulation of health care practice to be concerned with conduct that incidentally involved speech, in which case the state could regulate the conduct to achieve an important governmental interest.  hat interest would be to protect minors from the adverse psychological and emotional effects of conversion therapy, which have been well-documented by numerous studies and led most professional associations in the health care field to condemn the practice.

The 9th Circuit panel agreed with Judge Bryan that the NIFLA opinion had not effectively overruled Pickup v. Brown or a subsequent case from California, Walsh v. Brown, that the Washington statute was virtually identical with the California statute that had been upheld, and that circuit precedent thus dictated that Tingley’s case be dismissed.

Judge Ronald M. Gould, writing for the panel, added a section to the opinion, speaking only for himself and Judge Kim McLane Wardlaw, identifying an “additional reason” for reaching the conclusion that the Washington law is constitutional.  “The Supreme Court has recognized that laws regulating categories of speech belonging to a ‘long tradition’ of restriction are subject to lesser scrutiny.”  Looking back at the NIFLA ruling, he noted that Justice Thomas wrote that in the NIFLA case there was not “persuasive evidence of a long (if hereto unrecognized) tradition” of exempting speech by professionals from First Amendment protection.  However, Gould pointed out, there was a long tradition of the states regulating licensed health care practice.

“There is a long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders,” he wrote, citing U.S. Supreme Court cases from 1889 and 1898 to make his point.  “And such regulation of the health professions has applied to all health care providers, not just those prescribing drugs.”  He also noted that the Supreme Court had in the past “relied upon the positions of the professional organizations Tingley criticizes, even when those positions have changed over time.”

Gould commented that “the evidence presented shows some difference in opinion about the efficacy and harm of conversion therapy, but the ‘preponderating opinion’ in the medical communicate is against its use.”

“That doctors prescribed whiskey in 1922, and thought of homosexuality as a disease in 1962, does not mean that we stop trusting the consensus of the medical community in 2022 or allow the individual desires of patients to overcome the government’s power to regulate medical treatments.”  And he pointed out that invalidating the conversion therapy ban because the “therapy” consisted of speech “would endanger other regulations on the practice of medicine where speech is part of the treatment.”  For example, he noted a Washington statute that prohibits doctors from promoting “for personal gain any unnecessary inefficacious drug, device, treatment, procedure or service.”  Such promotion would normally be done through speech.  Other sections of the law would subject to discipline the offering “to cure or treat diseases by a secret method,” and prohibit all advertising by health care professionals that is “false, fraudulent, or misleading.”

He also noted that the law was narrowly focused on licensed professionals, exempted unlicensed religious counselors, and clearly did not apply outside the confines of professional-client treatment relationships.  Counselors are free to state their views about conversion therapy, both to their clients and publicly, but are just forbidden to provide conversion therapy to clients.

As to Tingley’s separate claim that the law violates his free exercise of religion, the court concluded that  this was a religiously-neutral law of general applicability, and thus under existing Supreme Court precedent Tingley could not claim an exemption from complying based on his religious beliefs.   The court also rejected Tingley’s argument that the law was unconstitutionally vague, finding that past decisions had rejected the argument that “sexual orientation” and “gender identity” are terms whose meaning is uncertain.  “’Sexual orientation’ and ‘gender identity’ have common meanings that are clear to a reasonable person,” wrote Judge Gould, “let alone a licensed mental health provider.”

Judge Mark Bennett, the Trump appointee on the panel, joined the majority opinion, but only to the extent that it found the question of constitutionality to be governed by the 9th Circuit precedents.  “Respectfully,” he wrote, “I believe that we should not hypothesize with dicta when our conclusion is commanded by binding precedent.”  Judges Gould and Wardlaw were appointed by President Bill Clinton.

Numerous amicus briefs were filed in this case, reflecting the heavy investment by the faith-based community in attempting to protect the practice of conversion therapy, especially by religiously-motivated licensed counselors, and the commitment by LGBTQ and other civil liberties groups to protect minors from a dangerous and exploitative practice.

Alliance Defending Freedom is likely to seek en banc review and, ultimately, to asking the Supreme Court to take up this case.  Judge Gould recognized in his opinion for the court that this ruling opens up a split with a recent opinion by the 11th Circuit, Otto v. Boca Raton, 981 F.3d 854 (2020), which struck down a municipal conversion therapy ban on the theory that conversion therapy that is limited to speech enjoys full 1st Amendment protection, rejecting the argument that it was a regulation of professional conduct only incidentally burdening speech.  The 11th Circuit took a different view of the impact of the Supreme Court’s NIFLA ruling, so it is possible that this case will provide ADF with the vehicle it is seeking to get the issue back before the Supreme Court.

Florida Federal Judge Refuses to Enjoin Anti-Conversion Therapy Ordinances

Posted on: February 14th, 2019 by Art Leonard No Comments

On February 13, U.S. District Judge Robin L. Rosenberg denied a motion by two Palm Beach County psychologists to block enforcement of the county’s ordinance forbidding licensed health care practitioners from providing “sexual orientation change efforts” (SOCE, alsocommonly referred to as “conversion therapy”) to minors.  The refusal of a preliminary injunction extends as well to a similar ordinance enacted by the city of Boca Raton, which is in Palm Beach County.  Judge Rosenberg concluded that the plaintiffs failed to show that they were likely to prevail on their argument that the measures violate their First Amendment free speech rights.  Otto v. City of Boca Raton, 2019 WL 588645, 2019 U.S. Dist. LEXIS 23363 (S.D. Fla.).

Judge Rosenberg appears to be the first district judge to take on recent Supreme Court rulings that might make it more difficult for governments to defend these laws against constitutional attacks.  Just weeks ago, a federal magistrate judge in Tampa recommended to the district court there to grant a preliminary injunction against enforcement of Tampa’s ordinance against conversion therapy practitioners in that city while the litigation proceeds. The district court has not yet ruled on that recommendation, and Judge Rosenberg’s extensive and detailed opinion may influence the other district judge to reject the magistrate’s recommendation.

Magistrate Judge Amanda Arnold Sansone’s recommendation in the Tampa case was based heavily on the U.S. Supreme Court’s June 26 ruling, in National Instituyte of Family and Life Advocates (NIFLA) v. Becerra, 138 S.Ct. 2361 (2018), that a California statute requiring clinics in that state to advise clients about the availability of state-financed abortion services violated the clinics’ First Amendment rights.  In the course of that opinion, Justice Clarence Thomas, writing for the Court, specifically rejected assertions by two federal appeals courts that “professional speech” is entitled to less constitutional protection than other speech, in cases involving challenges to laws against conversion therapy.

Judge Sansone construed the Supreme Court’s ruling to require using the “strict scrutiny” test to evaluate the Tampa ordinance, and concluded that the plaintiffs were likely to prevail on their claim that the ordinance would not survive strict scrutiny, at least regarding the consensual “talk therapy” that the plaintiffs claimed to be providing to their patients.

Without explicitly mentioning Magistrate Sansone’s analysis, Judge Rosenberg rejected it, concluding that the question of the level of judicial review to be provided to these ordinances is “unsettled” at best, and that the cases that Sansone cited and relied upon do not necessarily lead to the conclusion she reached.

Instead, finding that the appropriate level of review of a ban on talk therapy to attempt to change a person’s sexual orientation (or gender identity, for that matter) is “unsettled,” Judge Rosenberg decided to analyze the issue using the three different levels of judicial review of a statute, always keeping in mind that in requesting a preliminary injunction to block a duly-enacted statute while its constitutionality is being litigated, the plaintiffs have a heavy burden to show a substantial likelihood of prevailing on the merits of their claim.

Using the least demanding level of review, “rational basis,” Judge Rosenberg easily rejected the contention that the city or county were acting irrationally or without any justification in passing the ordinances.  She devoted a substantial part of her opinion to summarizing the evidence that was presented to persuade the county and city legislators that they should pass these laws, concluding that a substantial body of professional opinion unanimously rejects the use of conversion therapy, especially on minors, both because of the lack of evidence that talk therapy can change a person’s sexual orientation, and the mounting evidence of its harmful effects.  Furthermore, she noted, minors are not really capable of giving informed consent and are particularly vulnerable to the psychological harm associated with conversion therapy.

Turning to the next level of scrutiny, which has been applied by other courts in evaluating free speech claims against such laws, “heightened scrutiny,” she found that the legislative record here would back up the defendant’s claims of important governmental interests in protecting minors that are advanced by passing these laws.

Turning to the most demanding level of review, “strict scrutiny,” Judge Rosenberg noted that generally content-based governmental actions to restrict speech are subject to this standard, putting the burden on the government to show that it has a compelling interest at stake and that the measure is narrowly tailored to achieve that interest without unnecessarily abridging free speech.  Narrow tailoring means that the governmental body has to have considered whether a narrower prohibition (the “least restrictive alternative”) would suffice to achieve its compelling goal.

Key to her analysis here is that the defendants met the compelling interest test, because protecting minors is an important role for government, especially when it is necessary to protect them from what may be well-meaning but ultimately harmful decisions by their parents.  The issue which she deemed less conclusive was the narrow tailoring part.  The plaintiffs suggested, as plaintiffs had successfully argued to the Tampa magistrate judge, that a ban on aversion therapy or non-consensual therapy would suffice.  Rosenberg cited reasons for doubting this, including the evidence that talk therapy itself may have harmful effects, as well as her reservations, noted above, about whether such therapy practiced on minors is really consensual.

The bottom line for Rosenberg, however, was that the plaintiffs did not meet the bar of showing that strict scrutiny was definitely the appropriate test to apply, or that they had a substantial likelihood of proving at trial that the measures were insufficiently narrowly-tailored.  As a result, they were not entitled to the preliminary injunction.  She reached a similar conclusion analyzing plaintiffs’ claim that the ordinances are an unconstitutional prior restraint on speech or unduly vague.

Most importantly, she took great pains to explain why the Supreme Court’s ruling in the California clinics case does not necessarily mandate that strict scrutiny should be the standard in this case.  For one thing, she pointed out, that case did not involve regulating speech that was part of treatment, while in this case, the speech is a tool in the process of providing treatment, and state and local governments have traditionally regulated treatments offered by licensed professionals.  The California case involved requiring clinics to provide information that they did not want to be compelled to provide, which is a different story entirely.  “There,” she wrote, “the doctors were compelled to speak, despite the fact that the required notice ‘is not an informed-consent requirement or tied to a procedure at all.’”

She also noted that Justice Thomas’s opinion did not even specify what the level of judicial review should be in that case.  She pointed to the Supreme Court’s earlier case, Planned Parenthood v. Casey, 505 U.S. 833 (1992), in which the Court considered a state law requiring that doctors make certain “factual disclosures” to patients seeking abortions in an attempt to dissuade them.  In that case, the Court’s opinion said that “the physician’s First Amendment rights” were only “implicated as part of the practice of medicine, subject to reasonable licensing and regulation by the state.”  This suggests that the rational basis test might apply, or at most heightened scrutiny.

Because she concluded that at this preliminary stage it was possible to conclude that plaintiffs had not shown a substantial likelihood of winning under any of the potentially applicable standards of review, Judge Rosenberg denied the preliminary injunction, leaving to a later stage in the litigation a more definite ruling on the appropriate level of review and the ultimate merits of the case.  This means that the performance of conversion therapy on minors in Palm Beach County and the city of Boca Raton will continue to be illegal for licensed health care practitioners while the litigation proceeds.

Plaintiffs are represented by Liberty Counsel, the anti-LGBT legal organization that also represents the psychologists attacking the Tampa ordinance, as well as psychologists in New Jersey who have petitioned the Supreme Court to revive their 1st Amendment challenge to that state’s ban on conversion therapy for minors.