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Ninth Circuit Denies En Banc Rehearing in Washington Conversion Therapy Case, Setting Up Possible Supreme Court Review

Posted on: January 25th, 2023 by Art Leonard No Comments

On January 23, the U.S. Court of Appeals for the 9th Circuit announced denial of rehearing en banc in Tingley v. Ferguson, 47 F. 4th 1055 (9th Cir., September 6, 2022), in which a three judge panel, following 9th Circuit precedent in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), rejected a First Amendment free speech challenge to Washington’s statute prohibiting licensed health care providers from performing “sexual orientation change efforts” (informally referred to as conversion therapy) on minors.  Alliance Defending Freedom (ADF), the anti-LGBT religious litigation group, represented Brian Tingley, a licensed Washington therapist, in challenging the law.  The National Center for Lesbian Rights (NCLR) represented Equal Rights Washington, a political group, as intervenor-defendant in the case.  The announcement and attendant dissenting opinions are published at 2023 WL 353213, 2023 U.S. App. LEXIS 1632.

District Judge Robert J. Bryan granted a motion to dismiss in 2021, see 557 F.Supp.3d 1131 (W.D. Wash.), in light of the 9th Circuit precedent of Pickup. A three-judge panel of Circuit Judges Ronald Gould, Kim Lane Wardlaw and Mark J. Bennett, affirmed, restating the legal analysis of the Pickup decision, which held that the law was regulating professional conduct, only incidentally affecting speech, in an opinion by Gould joined by Wardlaw (Clinton appointees) with a concurrence by Bennett (Trump appointee).

It takes a majority of the 29 active judges of the circuit to grant en banc review by an eleven-judge panel.  In announcing the denial of en banc review, the court released two dissenting opinions.  Senior Circuit Judge Diarmuid O’Scannlain, a Reagan appointee who couldn’t vote on the issue, nonetheless was moved to write about why he thought the 9th Circuit had to reconsider Pickup, and his dissent was joined by Circuit Judge Sandra Ikuta (George W. Bush appointee) and Circuit Judges Ryan Nelson and Lawrence VanDyke (Trump appointees).  Circuit Judge Patrick Bumatay (Trump appointee) wrote a separate dissenting opinion.

O’Scannlain’s dissent argued that Pickup was no longer good law.  In NIFLA v. Becerra, 138 S. Ct. 2361 (2018), a free speech case challenging California’s law requiring clinics providing reproductive health services to advise patrons about the availability of abortion providers, the Court had rejected the proposition that “professional speech” receives less First Amendment protection than other speech, and Justice Clarence Thomas, writing for the Court, specifically mentioned the Pickup decision as having erred on this point.  O’Scannlain wrote that “the Supreme Court has rejected Pickup by name… And other circuits have rejected Pickup’s holding, concluding instead that therapeutic speech is – speech, entitled to some First Amendment protection.”  He argued that “the panel’s defense of Pickup’s continuing viability is unconvincing.  We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.”  He also criticized the panel’s discussion of a “long tradition” of regulating professional conduct in the health care field as somehow supporting the law.

However, the panel had distinguished Pickup from NIFLA.  In the California statute at issue in NIFLA, the state was not regulating “therapeutic speech,” but rather was requiring clinics to convey the government’s message about availability of services that these clinics – which were devoted to dissuading pregnant women from terminating their pregnancy – did not want to provide.  Thus, it was compelled speech, in the view of the Court, and it violated the First Amendment for the government to compel the clinics to convey this message.  This is distinguishable from the conversion therapy statutes, which restrict licensed therapists from providing the therapy – which incidentally involves speech, although some may go beyond speech in their therapeutic methods – but do not restrict them from discussing conversion therapy with their clients/patients, or require them to state anything in particular about it.  The 3rd Circuit, evaluating New Jersey’s conversion therapy law in King v. Governor of New Jersey, 767 F.3d 216 (2014), differed from the 9th Circuit, holding that the law did raise free speech issues, but found that the state’s legislative findings support a legitimate interest to sustain the law.  Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020), which was subsequently denied rehearing en banc, rejected Pickup and struck down two local government bans on conversion therapy in Florida.  Thus, the circuit split on the free speech issue.

Judge Bumatay wrote separately to assert that “conversion therapy is often grounded in religious faith,” and that Tingley had alleged that “his practice of conversion therapy is an outgrowth of his religious beliefs and his understanding of Christian teachings.”  Bumatay developed this theme to conclude that this was actually a hybrid rights case, melding together free speech and free exercise of religion, which he insisted would require at least heightened scrutiny rather than the rationality approach taken by the panel in this case (and the panel in Pickup).  He would vote to rehear the case en banc in order to incorporate this additional consideration in evaluating whether Washington State had a strong enough justification to support overriding the therapist’s religious convictions.  He did concede that it is possible the court could find that the law survived heightened scrutiny depending on the strength of Washington’s case.

ADF brings cases challenging LGBTQ rights laws as part of a broad agenda to get the courts to condemn such laws, usually on religious freedom grounds.  Since it is a test case litigator, a cert petition is the next likely development in this litigation.  Although the panel majority strived to distinguish the NIFLA case, Justice Thomas’s dicta expressing disapproval of Pickup may stimulate the four votes on the Court necessary to grant certiorari.  And the combination of free speech and free exercise suggested by Judge Bumatay is likely to appeal to the conservative majority on the current Court, which could spell the end of laws banning conversion therapy in the United States – at least to the extent that therapy is carried out solely through speech, as the plaintiff therapists have argued in challenging these laws.

Given the timing of all this, a cert petition filed in February or March could not be granted in time for a hearing to take place during the current term of the Court, but Tingley v. Ferguson may loom as a significant LGBT-related case on the Court’s October 2023 calendar.

District Court Rejects Constitutional Challenge to Washington State’s Conversion Therapy Ban

Posted on: September 2nd, 2021 by Art Leonard No Comments

Senior U.S. District Judge Robert J. Bryan has dismissed constitutional challenges to Washington State’s Conversion Therapy ban (codified in Wash. Rev. Code Sections 18.130.20 and 18.130.180) brought by Brian Tingley, a licensed Marriage and Family Therapist, who asserted a violation of his free speech and free exercise of religion rights, as well as alleging a violation of due process.  Tingley v. Ferguson, 2021 WL 3861657, 2021 U.S. Dist. LEXIS 164063 (W.D. Wash., Aug. 30, 2021).  Equal Rights Washington had intervened to help named defendants, Washington Attorney General Robert W. Ferguson and others, in defending the law.  After Alliance Defending Freedom (ADF) filed suit on Tingley’s behalf, it sought a preliminary injunction against enforcement of the law, while defendants filed a motion to dismiss the case.  Judge Bryan granted defendants’ dismissal motion, and denied intervenors’ dismissal motion and Tingley’s motion for preliminary injunction as moot.  Judge Bryan’s ruling sets up the case for ADF to appeal, based on its argument that 9th Circuit decisions rejecting similar challenges to California’s Conversion Therapy ban are no longer “good law” in light of the Supreme Court’s ruling in NIFLA v. Becerra, 138 S. Ct. 2361 (2018).

Tingley alleged that he has violated the Washington law by providing therapy sought by minors who were unhappy about their same-sex attractions or discomfort with their biological gender.  Although his religious beliefs underly his opinions about sexual orientation and gender identity, he does not identify as a religious counselor who would be expressly exempted under the law.  The court determined that Tingley had individual standing to bring his challenge, but not representative standing for his clients.

To cut to the quick, Judge Bryan held that the 9th Circuit’s opinions in Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) and subsequent cases concerning the California law, are binding precedent in this case.  The essence of ADF’s free speech argument is that the Supreme Court’s rejection of a distinct category of “professional speech” subject to a lesser standard of 1st Amendment expression than other forms of speech in NIFLA v. Becerra had essentially overruled Pickup, and pressed home this point by citation to Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020), in which that court noted in a citation that NIFLA had “abrogated” Pickup.  Not mentioned in Judge Bryan’s opinion is that Justice Clarence Thomas’s opinion for the Supreme Court in NIFLA spoke disparagingly about the treatment of “professional speech” in two conversion therapy cases, Pickup and King v. Governor of New Jersey, 767 F.3d 216 (3rd Cir. 2014), a similar ruling upholding New Jersey’s conversion therapy law.  Judge Bryan rejected this argument, finding that the basis of the Pickup ruling was a determination that the California law regulated professional conduct, the provision of a “therapy,” which incidentally involved speech, but the law was focused on the conduct, not the speech.

Bryan noted as well that the plaintiffs in Pickup and the New Jersey case had petitioned the Supreme Court after the NIFLA ruling to order the 9th and 3rd Circuits to recall their decisions concerning conversion therapy bans, but the Supreme Court rejected those petitions.  See Pickup v. Newsom, 139 S. Ct. 2622 (petition denied, May 20, 2019); King v. Murphy, 139 S. Ct. 1567 (petition denied, April 15, 2019).

Conceptualized as a regulation of licensed professional conduct, wrote Bryan, “the Washington Conversion Law is subject to rational basis review, it is rationally related to the State’s asserted interest ‘in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harm caused by conversion therapy.’”  Thus, the court found no violation of Tingley’s free speech rights.

On the Due Process claim, Bryan rejected Tingley’s assertion that the law was impermissibly vague, noting that the 9th Circuit had rejected this argument in Pickup regarding the similarly-worded California statute and finding that a “reasonable person” could figure out that what was outlawed was therapy intended to “alter a minor patient’s sexual orientation” or gender identity.  The 9th Circuit did not find either of those terms to be vague, finding ample definitions in dictionaries as well as the definitional provisions of the statutes.

As to the Free Exercise argument, Judge Bryan found that the 9th Circuit had rejected a similar argument in Welch v. Brown, 834 F. 3d 1041 (9th Cir. 2016), a companion case decided by the 9th Circuit together with Pickup.  The law does not target religion.  “Like in Welch,” wrote Bryan, “the object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.  Its object is to ‘protect the physical and psychological well-being of minors. . .  The Conversion Law does not, either in practice or intent, regulate the way in which Plaintiff or anyone else practices their religion.  Instead, it ‘regulates conduct only within the confines of the counselor-client relationship,’” citing Welch.  “Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.”

Bryan also rejected ADF’s argument that because both speech and free exercise were implicated, under a “hybrid rights” doctrine the law was subject to a higher level of judicial scrutiny.  “It is not clear that the hybrid rights exception ‘truly exists,’” he wrote, quoting the 9th Circuit’s opinion in Parents for Privacy v. Barr, 949 F. 3d 1210 (2020), but even assuming that it does, “the doctrine would compel a higher level of scrutiny for claims that implicated multiple constitutional rights, in this case free exercise and free speech.  Because the Court already established that Plaintiff’s claim does not implicate free speech, the hybrid rights exception does not apply and does not undermine the holding of Welch.”

ADF will certainly appeal this ruling to press the argument that NIFLA has “abrogated” Pickup and Welch and compels a ruling for their client on the free speech claim.  Striking down Conversion Therapy bans is a major item on ADF’s anti-LGBTQ agenda.

Intervenor Equal Rights Washington is represented by National Center for Lesbian Rights and pro bono counsel Raegen Nicole Rasnic of Skellenger Bender, PS, Seattle.  The court also received a brief on behalf of The Trevor Project, the Foundation for Suicide Prevention, and the American Association of Suicidology, identified as “Interested Partys.”

Judge Bryan was appointed to the court by President Ronald W. Reagan.