Tingley v. Ferguson

• Decision Date: 06 September 2022
• Docket Number: 21-35815, No. 21-35856
• Citation: 47 F.4th 1055
• Parties: Brian TINGLEY, Plaintiff-Appellant, v. Robert W. FERGUSON, in his official capacity as Attorney General for the State of Washington ; Umair A. Shah, in his official capacity as Secretary of Health for the State of Washington; Kristin Peterson, in her official capacity as Assistant Secretary of the Health Systems Quality Assurance division of the Washington State Department of Health, Defendants-Appellees, Equal Rights Washington, Intervenor-Defendant-Appellee. Brian Tingley, Plaintiff-Appellee, v. Robert W. Ferguson, in his official capacity as Attorney General for the State of Washington ; Umair A. Shah, in his official capacity as Secretary of Health for the State of Washington; Kristin Peterson, in her official capacity as Assistant Secretary of the Health Systems Quality Assurance division of the Washington State Department of Health, Defendants-Appellants, and Equal Rights Washington, Intervenor-Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

47 F.4th 1055

Brian TINGLEY, Plaintiff-Appellant,

v.Robert W. FERGUSON, in his official capacity as Attorney General for the State of Washington ; Umair A. Shah, in his official capacity as Secretary of Health for the State of Washington; Kristin Peterson, in her official capacity as Assistant Secretary of the Health Systems Quality Assurance division of the Washington State Department of Health, Defendants-Appellees,Equal Rights Washington, Intervenor-Defendant-Appellee.

Brian Tingley, Plaintiff-Appellee,

v.Robert W. Ferguson, in his official capacity as Attorney General for the State of Washington ; Umair A. Shah, in his official capacity as Secretary of Health for the State of Washington; Kristin Peterson, in her official capacity as Assistant Secretary of the Health Systems Quality Assurance division of the Washington State Department of Health, Defendants-Appellants,andEqual Rights Washington, Intervenor-Defendant.

No. 21-35815

No. 21-35856

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2022 Seattle, Washington

Filed September 6, 2022

Roger G. Brooks (argued), Alliance Defending Freedom, Scottsdale, Arizona; Kristen K. Waggoner and John J. Bursch, Alliance Defending Freedom, Washington, D.C.; David A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia; Cody S. Barnett, Alliance Defending Freedom, Lansdowne, Virginia; Gregory D. Esau and Ellis Li McKinstry, Seattle, Washington; for Plaintiff-Appellant/Cross-Appellee.

Cristina Sepe (argued), Jeffrey C. Grant, and Sierra McWilliams, Assistant Attorneys General; Kristin Beneski, First Assistant Attorney General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; for Defendants-Appellees/Cross-Appellants.

Raegen Rasnic, Skellenger Bender P.S., Seattle, Washington; Shannon Minter and Christopher Stoll, National Center for Lesbian Rights, San Francisco, California; for Intervenor-Defendant-Appellee.

Deborah J. Dewart, Hubert, North Carolina, for Amicus Curiae Institute for Faith and Family.

Charles LiMandri, Paul M. Jonna, and Jeffrey M. Trissell, LiMandri & Jonna LLP, Rancho Santa Fe, California; Thomas Brejcha and Peter Breen, Thomas More Society, Chicago, Illinois; for Amicus Curiae Ethics and Public Policy Center.

Paul M. Sherman, Institute for Justice, Arlington, Virginia, for Amicus Curiae Institute for Justice.

Shireen A. Barday, Gibson Dunn & Crutcher LLP, New York, New York; Isaac Ruiz, Ruiz & Smart PLLC, Seattle, Washington; J. Denise Diskin, QLaw Foundation of Washington, Seattle, Washington; for Amici Curiae The Trevor Project Inc., American Foundation for Suicide Prevention, and American Association of Suicidology.

Tassity Johson, Jessica Ring Amunson, and Jessica Sawadogo, Jenner & Block LLP, Washington, D.C.; Nathalie F.P. Gilfoyle and Deanne M. Ottaviano, American Psychologial Association, Washington, D.C.; for Amicus Curiae American Psychologial Association.

Daniel J. Shih, Susman Godfrey LLP, Seattle, Washington; Yvonne Chin, Julia Mizutani, Antoinette Davis, Nancy Talner, and Justin Abbasi, ACLU of Washington Foundation, Seattle, Washington; for Amici Curiae American Civil Liberties Union of Washington and Other Organizations.

Paul F. Rugani, Orrick Herrington & Sutcliffe LLP, Seattle, Washington, for Amici Curiae Fred T. Korematsu Center for Law and Equality; Aoki Center for Critical Race and Nation Studies; Center on Race, Inequality, and the Law at New York University School of Law; and Loyola Law School Anti-Racism Center.

Sean M. SeLegue, Arnold & Porter Kaye Scholer LLP, San Francisco, California, for Amicus Curiae First Amendment Scholars.

Before: Kim McLane Wardlaw, Ronald M. Gould, and Mark J. Bennett, Circuit Judges.

Concurrence by Judge Bennett

GOULD, Circuit Judge:

This appeal requires us to decide, again, whether a state may prohibit health care providers operating under a state license from practicing conversion therapy on children. Twenty states and the District of Columbia have laws prohibiting or restricting the practice of conversion therapy, which seeks to change an individual's sexual orientation or gender identity. This appeal concerns Washington's law that subjects licensed health care providers to discipline if they practice conversion therapy on patients under 18 years of age.

In 2014, we upheld a substantially similar law enacted by California that subjects its state-licensed mental health providers to discipline for practicing conversion therapy on minor clients. Pickup v. Brown , 740 F.3d 1208 (9th Cir. 2014). Finding itself bound by Pickup , the district court in this case dismissed Plaintiff Brian Tingley's challenge to Washington's nearly identical law.

We affirm. Washington's licensing scheme for health care providers, which disciplines them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. 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.

BACKGROUND

I

Conversion therapy encompasses therapeutic practices and psychological interventions that seek to change a person's sexual orientation or gender identity. The goal is to change an individual's sexual orientation from gay to heterosexual or to change an individual's gender identity from transgender to cisgender. Within the field of psychology, conversion therapy is also known as "reparative therapy" or "sexual orientation and gender identity change efforts" ("SOGICE").¹ Conversion therapy developed in the mid-nineteenth century to "cure" patients of homosexual desires and gender-nonconforming behaviors, which were viewed at that time as mental illnesses. Such views, once held by professional organizations in the psychology and psychiatric fields, have evolved with time and research.

The American Psychological Association ("APA") removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders in 1973, and it now views gender nonconforming behaviors as "gender dysphoria," rather than as a "gender identity disorder." The APA has twice conducted a systematic review of the research on conversion therapy and adopted a resolution that conversion therapy "puts individuals at a significant risk of harm" and is not effective in changing a person's gender identity or sexual orientation. The APA opposes conversion therapy "in any stage of the education of psychologists" and instead "encourages psychologists to use an affirming, multicultural, and evidence-based approach" that includes "acceptance, support, ... and identity exploration and development, within a culturally competent framework." As of 2015, every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.

II

Washington requires health care providers to be licensed before they may practice in Washington. See Wash. Rev. Code § 18.122.030(2). Title 18 of the Revised Code of Washington regulates business and professions, and Chapter 130 of Title 18, Washington's "Uniform Disciplinary Act,"² lists actions that are considered "unprofessional conduct" for licensed health care providers and subjects them to disciplinary action. Id. §§ 18.130.180, 18.130.160. Therapists, counselors, and social workers who "work under the auspices of a religious denomination, church, or religious organization" are exempted from the Chapter's requirements. Id. § 18.225.030(4).

Washington enacted Senate Bill 5722 ("SB 5722") in 2018, which added "[p]erforming conversion therapy on a patient under age eighteen" to the list of unprofessional conduct in the Uniform Disciplinary Act for licensed health care providers. S.B. 5722, 65th Leg., Reg. Sess. (Wash. 2018), codified at Wash. Rev. Code §§ 18.130.020(4) and 18.130.180(27). SB 5722 defined conversion therapy:

(a) "Conversion therapy" means a regime that seeks to change an individual's sexual orientation or gender identity. The term includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. The term includes, but is not limited to, practices commonly referred to as "reparative therapy."

(b) "Conversion therapy" does not include counseling or psychotherapies that provide acceptance, support, and understanding of clients or the facilitation of clients' coping, social support, and identity exploration and development that do not seek to change sexual orientation or gender identity.

Wash. Rev. Code § 18.130.020(4)(a)–(b). The legislature expressly specified that SB 5722 may not be applied to (1) speech by licensed health care providers that "does not constitute performing conversion therapy," (2) "[r]eligious practices or counseling under the auspices of a religious denomination, church, or organization that do not constitute performing conversion therapy by licensed health care providers," and (3) "[n]onlicensed counselors acting under the auspices of a religious denomination, church, or organization." 2018 Wash. Sess. Laws, ch. 300, § 2.

The legislature's asserted intent in enacting SB 5722 was to regulate "the professional conduct of licensed health care providers." Id. § 1(1). It found that it had "a compelling 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 harms caused by conversion therapy." Id. § 1(2). Health Impact Review of SB 5722, a report from the Washington State Board of Health, accompanied SB 5722 and was presented to the Legislature. Reviewing the available research on conversion therapy, the report found that "conversion therapy is associated with negative health outcomes such as depression, self-stigma, cognitive and emotional dissonance, emotional distress, and negative self-image."

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