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Ninth Circuit upholds Washington ban on conversion therapy

The panel rejected arguments that a 2018 U.S. Supreme Court ruling that held states can't force pregnancy centers to inform patients about free abortion services applied here.

(CN) — A Ninth Circuit panel on Tuesday upheld a Washington state law that prohibits licensed mental health care providers from trying to change a minor's sexual orientation or gender identity through conversion therapy.

The appellate court upheld a lower court's dismissal of a lawsuit by a marriage and family therapist who claimed that the 2018 state law violates the free speech rights of both himself and his minor clients. The panel said that the 2014 Ninth Circuit decision upholding a similar California law applied to the Washington state law as well insofar as it regulates conduct and only incidentally burdens free speech.

"States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel," U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee, wrote for the panel.

The panel rejected the argument that a 2018 U.S. Supreme Court decision — which held that a California law requiring crisis pregnancy centers to inform patients about the availability of free or low-cost abortion services in the state violated the free-speech rights of these centers — had made its 2014 position on the California conversion-therapy ban untenable.

Although the Supreme Court had concluded that speech isn't unprotected merely because it is uttered by "professionals," the panel said, it found there are some situations in which speech by professionals is afforded less protection under the First Amendment. States can still regulate professional conduct even though that conduct incidentally involves speech, the panel found.

President Joe Biden in June signed an executive order aimed at stamping out conversion therapy.

“This is the first time the federal government has launched a coordinated response against this dangerous discredited practice,” Biden said at the time, referring to the American Psychological Association's position that conversion therapy is not based on science and mentally harms participants.

In the Washington state case, Brian Tingley claimed the state ban on conversion therapy by licensed practitioners had chilled his speech and that he has self-censored himself out of fear of enforcement. Tingley, according to the ruling, believes that the sex each person is assigned at birth is “a gift of God” that should not be changed and trumps an individual’s “feelings, determinations, or wishes.”

According to his lawsuit, Tingley has worked with several minors in recent years who sought his help in reducing same-sex attractions and with others who expressed discomfort with their biological sex.

The Alliance Defending Freedom, a nonprofit legal organization that, per its website, focuses on protecting religious freedom, free speech, parental rights, and the sanctity of life. Representatives of the organization didn't immediately respond to a request for comment on the ruling.

U.S. Circuit Judge Kim McLane Wardlaw, also a Clinton appointee, joined Gould in the opinion. U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, concurred insofar as that the 2014 decision set a controlling precedent for the Washington state case. Bennett objected to an additional analysis supporting Tuesday's ruling based on the "well-established tradition of constitutional regulations on the practice of medical treatments."

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