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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panels of a circuit court of appeals are bound by past decisions of the circuit court unless they are reversed or superseded by an “en banc” decision (in the 9th Circuit an expanded panel of eleven judges) or by the U.S. Supreme Court.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.

9th Circuit En Banc Panel Revives Gay Mexican’s Asylum Claim

Posted on: March 12th, 2017 by Art Leonard No Comments

An eleven-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit revived an HIV-positive gay Mexican man’s claim for refugee status to remain in the United States on March 8, reversing rulings by a three-judge panel of the court, the Board of Immigration Appeals, and an Immigration Judge.  The opinion for the court in Bringas-Rodriguez v. Sessions, 2017 U.S. App. LEXIS 4077, 2017 WL 908546, was written by Judge Kim McLane Wardlaw, a Clinton appointee.  One member of the court, Judge Richard R. Clifton, filed a concurring opinion, and two members, Judges Carlos T. Bea and Diarmuid O’Scannlain, dissented in an opinion by Judge Bea.  Bea, appointed by George W. Bush, and O’Scannlain, appointed by Ronald Reagan, are among the most conservative judges on the 9th Circuit.  The reversed three-judge panel consisted of two George W. Bush appointees and a dissenting Clinton appointee, William Fletcher.

Carlos Alberto Bringas-Rodriguez, born in Tres Valles, Veracruz State, was, according to Judge Wardlaw’s summary of his testimony, which was deemed credible by the Immigration Judge, “horrifically abused by his father, an uncle, cousins, and a neighbor, all of whom perceived him to be gay or to exhibit effeminate characteristics.”  Bringas testified that his uncle raped him when he was four, and that three of his cousins and a male neighbor “physically and sexually abused him on a regular basis while he lived in Mexico.”  He also suffered regular beatings from his father, who told him, “Act like a boy.  You are not a woman.”  He claims his uncle told him when he was eight that he was being abused because he was gay.  “His uncle, cousins, and neighbor never called him by his name,” wrote Wardlaw, “referring to him only as ‘fag, fucking faggot, queer,’ and they ‘laughed about it.’”

Bringas lived briefly with his mother in the U.S. when he was twelve, but he returned to Mexico because he missed his grandmother, who had been raising him since he was nine.  The abuse intensified when he returned.  “On one occasion, when Bringas refused to comply with his neighbor’s demand for oral copulation, the neighbor beat and raped him, leaving Bringas with black eyes and bruises,” and his abusers “also threatened to hurt his grandmother, with whom he was close, if he ever reported what was happening,” wrote Wardlaw.  “Fearing that they would follow through on their threats, Bringas did not tell his mother, teachers, or anyone else about the sexual abuse.”  He fled back to the U.S. in 2004 when he was fourteen.

Entering the country illegally at El Paso, he made his way to Kansas where he lived with his mother for the next three years.  Then he moved out of his mother’s home, living elsewhere in Kansas and in Colorado, holding several jobs.  In August 2010 he pled guilty to “attempted contributing to the delinquency of a minor” in Colorado.  According to his account, as related by Wardlaw, “he had been at home drinking with some friends when another friend brought over a minor who became drunk.”  Bringas served 90 days in jail, “during which time he attempted suicide and was hospitalized, which precipitated his finally telling a doctor and then his mother about his childhood abused.”  His conviction triggered a notice to the Department of Homeland Security, which immediately issued him a “Notice to Appear.”

The next year, at age 20, he applied for asylum, withholding of removal, and protection under the Convention against Torture (CAT).  Asylum claims normally have to be filed within a year of arrival in the U.S., but he claimed he had been “unaware” at age 14 that he could apply for asylum, and only learned of this when he “spoke with an ICE officer in Colorado in September 2010” when he responded to the Notice to Appear.  In his application, he described the abuse he had suffered in Mexico and “explained that he feared persecution if he returned because he was gay and that the Mexican police would not protect him.  Bringas also credibly testified about his gay friends’ experiences with police in Veracruz.  Those friends went to the police to report that they had been raped, but the officers ignored their reports and ‘laughed [on] their faces.’”  He also submitted State Department country human rights reports on Mexico from 2009 and 2010, as well as newspaper articles documenting violence against gays in Mexico, which showed that violence was rising even as “Mexican laws were becoming increasingly tolerant of gay rights.”  In a footnote, Judge Wardlaw cited guidelines issued by the United Nations High Commissioner for Refugees, explaining that “legal improvements and widespread persecution are not mutually exclusive.”

An Immigration Judge found Bringas’ factual testimony to be credible, but denied his application, as did the Board of Immigration Appeals (BIA) on his appeal.  The IJ found that his asylum claim was untimely under the one-year rule, a point that the BIA ignored, treating his asylum claim on the merits.  Next, the IJ found, and the BIA recognized, that although Bringas had suffered “serious abuse” as a child, he did not show that the “abuse was inflicted by government actors or that the government was unwilling or unable to control his abusers.”  This was a critical finding, because the basis for establishing refugee status is to show persecution at the hands of the government or private actors whom the government is unwilling or unable to control.  Purely private abuse, as such, is not considered to be “persecution” under relevant statutes and treaties.  Having found that Bringas had not established “past persecution,” the BIA approved the IJ’s finding that there was no presumption that he had a reasonable fear of future persecution in Mexico, because he had “failed to show a pattern or practice of persecution of gay men in Mexico.”  The BIA wrote that “the record did not demonstrate widespread brutality against homosexuals or that there was any criminalization of homosexual conduct in Mexico.”  Indeed, the BIA found that the Mexican government “has taken numerous positive steps to address the rights of homosexuals.”  The IJ and BIA found no evidence that Bringas was likely to be tortured by the government if he were removed back to Mexico.

The three-judge panel of the 9th Circuit considering his appeal focused on a prior circuit ruling, Castro-Martinez v. Holder, 674 F.3d 1073 (9th Cir. 2011), concerning cases where the applicant’s abusers were all private citizens, which held that in order to establish that the government was unwilling or unable to control the abusers, the victim had to have reported the abuse to the government.  Wrote Wardlow, “the panel majority reasoned that where a victim fails to report abuse, even as a child, ‘there is a “gap in proof about how the government would have responded,”’ and that petitioner bears the burden to ‘fill in the gaps’ by showing how the government would have responded had he reported the abuse.”  The 3-judge panel emphasized the part of the State Department country reports that discussed how Mexican law had improved for gay people, including the government’s establish of a “specialized hate crimes prosecution unit” and the proclamation of a “national day against homophobia.”  The panel found “insufficient” Bringas’s testimony about the comments by his gay friends in the U.S. about how the police had failed to respond to their reports of abuse.  “Even if the friends’ reports were credited, the panel majority explained, those reports failed to establish that police practices in the city or state of Veracruz could be linked to police practices in Tres Valles, Bringas’s hometown.”

The panel majority, in common with the IJ in this case, also suggested that the issue here was not narrowly sexual abuse because of homosexuality, but rather the more general phenomenon of sexual abuse of children, and suggested that there was no evidence that the Mexican law enforcement authorities would be indifferent to reports of child sexual abuse.  In this connection, they noted that Bringas’s testimony did not specify how old his friends were when they unsuccessfully reported their abuse to the police.

Judge William Fletcher, the dissenting member of the 3-judge panel, expressed growing discomfort about the prior precedent upon which the majority of that panel was relying, pointing to the circuit’s “ample precedent that does not require victims of private persecution, especially child victims, to contemporaneously report their abuse to government authorities in order to become eligible for asylum in the United States.”

The en banc panel majority, reversing the 3-judge panel, embraced Judge Fletcher’s criticism, citing extensive evidence about the psychological and practical problems a child victim of sexual abuse would have in reporting the abuse to authorities, especially if they or their loved ones were threatened with retribution if they made any report, as had happened in Bringas’s case with threats to harm his grandmother.  Going further, the en banc panel overruled the prior precedent to the extent that it had been relied on as requiring reporting to the authorities in a case founded on abuse by non-governmental actors in order to establish “persecution” for purposes of asylum or withholding of removal.

While it was clear in this case that the asylum claim was filed too late, the court determined that Bringas’s claims for withholding of removal and protection under the CAT must be reconsidered by the Board.  The court found Bringas’ testimony, which had been deemed credible by the IJ and the BIA, sufficient to establish that he had been subjected to past persecution, and based on that testimony he was entitled to a presumption of further persecution.  Sending the case back to the BIA, the court said the remaining issue was whether that presumption had been rebutted by the government’s evidence of changed conditions in Mexico.

Furthermore, while this case was in progress, but after the BIA issued its opinion, Bringas learned for the first time that he was HIV-positive.  He had asked to reopen the case in order for the BIA to take this new information into account, but the BIA refused his request, observing that he had failed to show “how his status as an HIV positive homosexual changes the outcome of his case.”  The court ordered that BIA allow Bringas to supplement the record and to take account of new evidence about his HIV diagnosis.

Judge Clifton concurred on narrower grounds.  He felt, along with Judge Bea’s dissent, that the court’s opinion was insufficiently deferential to the BIA, which as a matter of administrative law is entitled to substantial deference by the courts and should not be reversed unless “any reasonable adjudicator would be compelled to conclude to the contrary based on evidence in the record.”  To Clifton, the evidence presented by Bringas about the unwillingness or inability of the government to address sexual abuse of gay children was not overwhelming, relying on “an unspecific hearsay report by Bringas of what he was told by one or two other persons about what had happened when a report was made to police in a different town.  That evidence would have been sufficient to support a conclusion that a report by a child to the police would have been futile, but it was not so powerful that no reasonable adjudicator could have found to the contrary,” he wrote.  He also noted that much of Bringas’ evidence was rather general and did not necessarily compel the conclusions reached by the majority of the court as to his persecution case.

On the other hand, Clifton found that the BIA “appeared to disregard the evidence that Bringas offered on the subject,” so it was appropriate to remand for reconsideration.  The IJ had written that there “was ‘no evidence whatsoever’ to support Bringas’s contention that a police report would have been futile, and it did not reflect any awareness of the evidence to that effect,” and the BIA’s opinion did not correct that misstatement.  While Clifton agreed the case should be sent back, he, unlike the majority, “would not dictate the answer to that past persecution question” but rather allow the BIA to reweigh the evidence.

Judge Bea’s dissent, as mentioned by Judge Clifton, focused on the court’s failure to accord sufficient deference to the BIA’s decision, emphasized the weak points in Bringas’s testimony, and accused the majority of mischaracterizing the precedent that it was overruling.  He also argued that the situation facing Bringas at age 14 was very different from the situation he would face today as an adult if returned to Mexico, pointing out further that the record showed that conditions for gay men in Mexico varied.  If returned to Mexico, Bringas would not have to live in Veracruz, but could instead locate in Mexico City, a jurisdiction that has legislated for same-sex marriage, supports gay pride marches, and is notably gay-friendly.

It will be interesting to see whether the government will seek Supreme Court review of this en banc ruling from the 9th Circuit.  The new Attorney General, Jeff Sessions, was substituted as Respondent for his predecessor, Loretta Lynch, upon taking office.  As this ruling may make it easier for Mexican asylum applicants to win the right to remain in the United States, the Trump Administration may seize upon it as a vehicle to tighten up on the asylum process by winning a reversal.  Certainly the Administration would have an interest in establishing deference for the BIA, given the ability of the President and Attorney General to influence the policies of that agency through appoints to the Board. In light of the timing, any review would take place after Trump’s nominee to fill the vacant seat on the Court takes the bench, re-establishing a majority of Republican appointees on the Court.

This en banc reconsideration of Bringas’s case was considered a big deal by the immigrants’ rights and civil liberties communities.  Dean Erwin Chemerinsky of the University of California (Irving) School of Law argued the appeal, with the Appellate Litigation Clinic at his school representing Bringas together with pro bono attorneys from major California law firms.  The government’s case was argued by relatively high level attorneys from the Justice Department in Washington.  Several amicus briefs were filed in support of Bringas’s appeal, including a wide variety of public interest groups, including Lambda Legal, National Center for Lesbian Rigths, the National Immigrant Justice Center, the HIV Law Project, the Transgender Law Center.  An amicus brief was submitted on behalf of Alice Farmer, the United Nations High Commissioner for Refugees, by Williams & Connolly LLP, a major national law firm that frequently appears before the Supreme Court.