WASHINGTON (CN) — Justice Clarence Thomas dissented on Monday from the Supreme Court’s decision not to hear a battle over conversion therapy, arguing Washington state had censored one side of the public debate over how best to help minors with gender dysphoria.
“‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,’” the George H.W. Bush appointee wrote. “Yet, under SB 5722, licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.”
Justice Samuel Alito wrote a separate dissenting opinion on the court’s decision not to hear the case, echoing Thomas’ sentiment. Alito said the question before the court was of national importance, citing the 20 states and the District of Columbia that have laws restricting the practice.
“It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny,” the George W. Bush appointee wrote.
Justice Brett Kavanaugh indicated he would have granted the petition.
The Washington state law in question classifies conversion therapy on minors as unprofessional conduct for licensed counselors. These therapies attempt to change behaviors or gender expressions to eliminate sexual or romantic attractions toward people of the same sex. The law does not prohibit counseling that provides support and acceptance for clients exploring a change in sexual orientation or gender identity.
Thomas said the law only allows licensed counselors to convey the state-approved message, allowing minors to explore their gender identities.
“Expressing any other message is forbidden — even if the counselor’s clients ask for help to accept their biological sex,” Thomas wrote. “That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.”
In Thomas’ view, the appeals court had set a “troubling precedent by condoning this regime,” and suggested the justices should review the issues in another case.
“Although the court declines to take this particular case, I have no doubt that the issue it presents will come before the court again,” Thomas wrote. “When it does, the court should do what it should have done here: grant certiorari to consider what the First Amendment requires.”
The case before the court came from Brian Tingley, who is fighting the Washington law. At his family-oriented private practice, Tingley claims to use his Christian faith to inform his view of “human nature and healthy relationships,” which includes the view that sexuality is grounded in “God’s design rather than a person’s subjective emotions or attractions.” He also believes that sexual relationships should only be between married men and women.
Attracting a predominately Christian clientele, Tingley claims his clients seek his assistance with issues around gender identity and sexuality or harmful sexual behaviors like pornography use. Tingley believes that children struggling with gender dysphoria generally grow out of it and thinks affirming a transgender identity could result in more harm.
“In Tingley’s professional opinion, scientific knowledge is far from complete on matters of gender identity and sexual orientation, so professionals must have an uninhibited discussion of ideas and therapies,” John Bursch, an attorney with the Alliance Defending Freedom representing Tingley, wrote in his petition. “Given the evolving science, an ‘affirm only’ approach endangers many clients.”
State lawmakers enacted the law to protect the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth. A 2018 study found that over 60% of children who received conversion therapy attempted suicide.
Violations of the law carry $5,000 fines for each infraction, suspension from practice and revocation of the counselor’s license.
Tingley filed a complaint against Washington’s law, claiming it violated his First Amendment rights. The state’s largest civil rights organization, Equal Rights Washington, intervened in the suit. Tingley’s complaint was dismissed at the request of the state and Equal Rights Washington. The Ninth Circuit affirmed.
Both Washington and the civil rights groups cited prior decisions by the court to decline challenges to conversion therapy laws, claiming the justices should do the same here. Even if the high court did want to review the constitutionality of these laws, the groups say this would be a bad case to do so.
“To establish standing, petitioner must allege that his ‘intended speech is arguably proscribed by’ Washington’s law,” Adam Unikowsky, an attorney with Jenner & Block representing the group, wrote. “Petitioner’s allegations do not meet that burden. He has steadfastly refused to allege that he will engage in conversion therapy, and therefore lacks standing to challenge a law restricting conversion therapy.”
Tingley claims he lives in fear of government persecution for his beliefs. He argued the justices should review the case because Washington’s law attempts to regulate private conversations.
“A private conversation is speech, not conduct,” Bursch wrote. “And that does not change just because one participant is a licensed counselor and the other his client. Otherwise, government can alchemize almost any professional’s speech into conduct that can be silenced — something the First Amendment forbids.”
Bursch said he was disappointed with the court's decision not to review what he sees as a First Amendment violation.
"We're disappointed that Washington's Counseling Censorship Law will continue to prevent many people from getting the help they need," Bursch said in a statement. "The law clearly violates the First Amendment by censoring counselors like Brian, and that ultimately hurts his clients. Washington forces counselors to tell their clients that there is no path to affirming their biological sex. It is disappointing that Washington's censorship regime will remain in place."
The state did not respond to a request for comment on the denial.
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