Brian Tingley, a 20-year veteran of marriage and family counseling, in March asked the U.S. Supreme Court to hear his challenge to a discriminatory law passed in his state of Washington in 2018.
In close to half the states in the country plus the District of Columbia, “conversion therapy” — when a counselor legally guides a minor patient to embrace his or her God-given biological sex when that boy or girl is buffeted by the winds of transgender hysteria and confusion — is banned. (READ MORE: Does Jazz Jennings Regret Transitioning?)
Tingley is arguing that his rights to free speech are violated by such a law, as is his religious liberty, for the Washington law has an “anti-religious target” and violates “his right to live his faith.”
Tingley believes that people are born men or women; their biological sex determines which they are. Many of his clients are religious people who share his view of sexual determinacy but are troubled by confusing emotions and approach him seeking affirmation of their God-given biological status. (RELATED: Here’s How to Respond to Radical Trans Networks)
The Washington law, however, does not permit licensed counselors to encourage their minor patients to fight through their troubled feelings to embrace their God-given gender identity. It does, however — no surprise here — allow counselors to guide clients in the other direction, toward a transgender identity.
Violations of the law could result in revocation of his counseling license and a $5,000 fine per violation.
A lower court dismissed his case, finding that the state could regulate Tingley’s counseling because it comprised conduct and burdened speech only incidentally. Tingley appealed to the 9th Circuit Court of Appeals. A three-judge panel of that court agreed with the federal district court ruling and also denied Tingley a hearing before the full appeals court.
The circuit court based its decision on the Washington law’s similarity to a California law passed in 2014, which it ruled constitutional. The two laws are nearly identical, and at heart of both is a ruling that such counseling is not speech but conduct.
However, other circuit courts of appeals have decided otherwise. An amicus brief filed by the state of Idaho, and other states, noted that the 3rd Circuit rejected “the argument that verbal communications become ‘conduct’ when they are used to deliver professional services.” Also, according to the brief, the 11th Circuit “struck down such speech restrictions because they ‘sanction speech directly, not incidentally—the only “conduct” at issue is speech.’” Alliance Defending Freedom, Tingley’s counsel, spun the issue out to its logical conclusion: “As the Eleventh Circuit has held, if a counselor’s speech can be transformed into conduct [that the government can regulate], so too could ‘teaching or protesting,’ ‘[d]ebating,’ and ‘[b]ook clubs.’”
Explained the Idaho brief:
A government cannot regulate speech by calling it conduct. Sometimes speech is inextricably caught up in lawfully regulated professional conduct, which this Court has acknowledged that States may regulate even if it “incidentally involves speech.” But such regulation is only permissible where its object is the conduct, not the speech. In reaching that conduct, some speech may of necessity be burdened, but the law cannot target speech directly.
Conflicting appeals court decisions often motivate the U.S. Supreme Court to take up a case, to resolve the differences and lay down a consistent opinion on a matter.
Also at issue is whether the Washington law has been superseded by a subsequent court decision. In 2018, the Supreme Court said, in National Institute of Family and Life Advocates v. Becerra, that a California law that required “crisis pregnancy centers” that counseled against abortion to offer their clients information about abortion violated the First Amendment. That ruling indicated that states may not regulate speech “under the guise of prohibiting professional misconduct.”
Lurking behind the legal questions is the issue of conversion therapy. The Left has universally demonized this method of attempted rehabilitation for years, ostensibly because of its emotional dangers to the patients but in reality because it militates against their quest to destroy the nuclear family.
The Human Rights Campaign describes conversion therapy as “a range of dangerous and discredited practices that falsely claim to change a person’s sexual orientation or gender identity or expression.” Transgender advocates routinely claim that the practice poses health risks for LGBTQ youth, including substance abuse, homelessness, and suicidal behavior.
Professional medical organizations such as the American Medical Association, the American Academy of Child Adolescent Psychiatry, and the American Psychoanalytic Association all condemn the practice.
The only remedy for a boy thinking he’s a girl or a girl thinking she’s a boy, according to these experts, is to medically “transition” to the other sex. This frequently involves a host of radical, irrevocable medical measures.
However, no hard data exist to corroborate the Left’s antipathy toward therapeutic treatment. As Ellie Gardy wrote in The American Spectator in 2021, “[T]here has been no systematic study on the effectiveness of psychological therapy for treating gender dysphoria.”
A professional group of Christian doctors has also pushed back against the liberal narrative. An amicus brief to the Tingley appeal filed by the Christian Medical and Dental Associations (CMDA) asserts “that two Dutch studies relied on by defenders of gender transition procedures are seriously flawed” and that transgender advocates “routinely exaggerate” their benefits and play down their risks. “In fact,” the brief goes on, “the science shows that the irreversible, invasive, and harmful consequences of these procedures are medically unnecessary, as gender dysphoria in minors will resolve in the vast majority of cases. In addition, these procedures often fail to deliver on their promise to resolve gender dysphoria, as the burgeoning community of detransitioners shows.”
About 80 percent of minors who experience gender confusion “naturally align” their thinking to their biological sex over time, according to the CMDA brief. Gender-transition procedures (GTPs), pushed on such youth by counselors, would be devastating and, if followed through medically, tragically irreversible.
Corroborating the effectiveness of conversion therapy is the growing number of those wanting to detransition from their earlier gender decisions. The CMDA brief claims thousands of transitioners who regret their decision and are trying now to go back:
Many of these men and women who transitioned as children are speaking out publicly about the irreversible harm GTPs caused them, demonstrating that some effects of GTPs are permanent. Many claim they lacked information on transition procedures’ known risks and available alternatives and that these procedures were pushed on them as the only realistic treatment for gender dysphoria.
Therapy directed toward alignment of sexual feelings and sexual biology would make such information available to troubled minors and warn them of the dangers of transitioning.
The court is expected to decide whether to hear Tingley’s case in early July.
