In an unexpected move, the Supreme Court announced on Monday that it will not hear a lawsuit challenging Washington state’s restrictions on an anti-LGBTQ practice known as “conversion therapy” — meaning that the restrictions will remain in place.
Conversion therapy is a discredited method of counseling that attempts to turn LGBTQ patients into cisgender heterosexuals — or, at least, to prevent them from expressing their actual sexual orientation or gender identity. As a federal appeals court that upheld the restrictions explained in its opinion, “every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.”
Because the justices decided not to hear this case, known as Tingley v. Ferguson, and because the appeals court upheld Washington’s law, the state’s limited ban on conversion therapy remains in effect for now.
Still, it is likely that the Supreme Court will agree to hear a lawsuit challenging a conversion therapy ban in the future.
The Court’s decision not to hear this case is surprising for several reasons. As Justice Clarence Thomas points out in a dissenting opinion, lower federal appeals courts are divided on whether conversion therapy is protected by the First Amendment, and the Supreme Court is especially likely to hear cases that split the federal appellate bench.
The Court’s GOP-appointed majority, moreover, has been extraordinarily solicitous toward claims made by the Christian right. And it just held last June that the free speech rights of anti-LGBTQ business owners can trump the right of their LGBTQ customers to be free from discrimination. So the Tingley case fits within one of the Roberts Court’s broader ideological projects.
And on top of all that, the plaintiff challenging Washington’s conversion therapy law has a plausible case. While states normally have broad leeway to sanction malpractice by licensed health care providers, including mental health care providers, it is not entirely clear how far this leeway extends to talk therapy, or other forms of treatment that rely almost entirely on speech.
Nevertheless, only three members of the Court — Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh — voted to hear the Tingley case, and it would have taken four votes to place it on the short list of cases that receive a full review from the Supreme Court. That means that three of the Court’s Republican appointees — Chief Justice John Roberts and Justices Neil Gorsuch and Amy Coney Barrett — voted not to hear this case.
It is not entirely clear why.
What, exactly, is the Tingley case about?
Conversion therapy refers to a loosely defined set of practices, as Vox previously explained, that range “from extreme measures like electroshock intended to eradicate impure thoughts to beating a pillow effigy intended to stand in for the patient’s parents.” According to the American Psychological Association, conversion therapy “‘puts individuals at a significant risk of harm’ and is not effective in changing a person’s gender identity or sexual orientation,” noted the Ninth Circuit appeals court in its opinion.
Washington’s law is not a total ban on this practice. The law generally bans licensed professional therapists from “performing conversion therapy on a patient under age eighteen,” and it contains a carveout for therapy and similar counseling conducted “under the auspices of a religious denomination, church, or religious organization.”
Nevertheless, Brian Tingley, a Christian-identified therapist who wishes to practice conversion therapy outside the umbrella of a church or other religious group, claims that the Washington law violates both his free speech rights and his right to freely practice his religion. He is represented by the Alliance Defending Freedom, a law firm that shares his conservative Christian identity, and that frequently brings lawsuits seeking to diminish the rights of LGBTQ Americans.
Broadly speaking, laws banning certain forms of treatment do exist. The government may prohibit a health provider from prescribing heroin, for example. And Washington state law also prohibits licensed health providers from performing “any procedure constituting female genital mutilation on a minor.” Courts have also upheld laws regulating talk therapists against First Amendment challenges.
That said, under current Supreme Court precedent, Tingley makes a non-frivolous argument that conversion therapy is protected by the Constitution’s free speech clause.
Tingley’s free speech claim is fairly intuitive. At least some forms of conversion therapy are conducted entirely through talk therapy — that is, by therapists having a series of conversations with their patients. It doesn’t require a law degree to understand the argument that the First Amendment extends to conversations.
At the same time, the Constitution typically does not protect malpractice and similar misconduct by professionals, even if the professional did no more than say some words to their client. A doctor who tells a patient to “go drink a jug of arsenic” cannot avoid the ensuing malpractice trial — or, for that matter, a murder trial — by arguing that they merely engaged in free speech. Nor can a lawyer who tells a client “it’s perfectly legal to rob a bank” avoid repercussions.
The Tingley case largely turns on contradictory language in NIFLA v. Becerra (2018), a case where the Supreme Court’s GOP-appointed majority limited states’ power to regulate speech by professionals. The Court created those limits while striking down a California law requiring anti-abortion “crisis pregnancy centers” to make certain disclosures to patients who come to them seeking care.
On the one hand, NIFLA held that “speech is not unprotected merely because it is uttered by ‘professionals.’” On the other hand, NIFLA also held that “States may regulate professional conduct, even though that conduct incidentally involves speech.” It cited favorably to past decisions holding that states may regulate how lawyers solicit clients. And it also held that regulations of professional malpractice “fall within the traditional purview of state regulation of professional conduct.”
So NIFLA gives plenty of ammunition to both sides of the Tingley lawsuit, which is essentially a challenge to a state law restricting treatment that every relevant professional association agrees is a form of professional malpractice.
Why didn’t all six Republican justices want to hear this case?
The Court’s decision not to hear this case is quite surprising, and it’s far from clear why three members of the Court’s Republican-appointed majority voted not to hear it.
One possibility, floated by legal journalist Mark Joseph Stern, is that Monday’s decision not to hear this case was cynical. Perhaps Roberts, Gorsuch, or Barrett decided to give Tingley a miss because they predicted that a future case would paint the pro-conversion therapy side in a more favorable light.
Another possibility is that at least some of the justices are trying to back away from political controversy after two terms in a row where they seemed to be on a mission to overrule as many precedents that are out-of-favor with the conservative Federalist Society as possible. In its current term, the Court is hearing an unusually large number of appeals arising out of the United States Court of Appeals for the Fifth Circuit, a deeply reactionary court dominated by MAGA stalwarts. And there are early signs that the justices intend to rein in many of the Fifth Circuit’s excesses.
Some of the justices, in other words, may have decided to focus on issues other than conservative ideological projects — at least for now — to give the Court some time to recover from its historically low approval ratings.
A third possibility is that some of the justices thought that the Tingley case was a bad vehicle to strike out at conversion therapy bans, because of some detail particular to that case which is unlikely to arise in a future case. According to a dissent by Alito, “20 States and the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy,” so it’s not like some other case won’t arise in the future that challenges one of these restrictions.
One reason why the Washington law at issue in Tingley may be less vulnerable to a constitutional challenge than some other state’s conversion therapy law is that the Washington law is quite narrow. It only protects patients under the age of 18, who may be forced to undergo conversion therapy by parents they remain financially dependent upon. And the Washington law still permits conversion therapy to take place “under the auspices of a religious denomination, church, or religious organization.”
The fact that the law is so limited in scope matters because laws that implicate free speech rights typically must survive a test known as “strict scrutiny,” meaning that the law cannot be enforced unless it uses the “least restrictive means” to advance a “compelling governmental interest.” Washington’s law potentially survives this test, because it does not attempt to ban conversion therapy outright, it protects only a uniquely vulnerable subset of LGBTQ patients, and it permits conversion therapy within a religious setting.
In any event, Roberts, Gorsuch, and Barrett did not explain why they decided to turn away the Tingley case. And it remains likely that the Court will take up a similar case in the future — and that, unless the membership of the Court changes dramatically, a majority of the justices will vote to fully legalize conversion therapy when that happens.
For the moment, however, Washington’s ban on this abusive practice remains in effect.
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