Tingley v. Ferguson
| Decision Date | 23 January 2023 |
| Docket Number | 21-35815, No. 21-35856 |
| 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 |
Roger Greenwood Brooks, Alliance Defending Freedom, Scottsdale, AZ, David Andrew Cortman, Senior Counsel, Alliance Defending Freedom, Lawrenceville, GA, Cody S. Barnett, Kristen K. Waggoner, Attorney, Alliance Defending Freedom, Lansdowne, VA, John J. Bursch, Attorney, Bursch Law PLLC, Caledonia, MI, for Plaintiff-Appellant and Plaintiff-Appellee.
Kristin Beneski, Attorney, Jeffrey C. Grant, AGWA - OFFICE OF THE WASHINGTON ATTORNEY GENERAL (SEATTLE), Seattle, WA, Cristina Sepe, Assistant Attorney General, Sierra McWilliams, AGWA - OFFICE OF THE WASHINGTON ATTORNEY GENERAL (OLYMPIA), Olympia, WA, for Defendants-Appellees and Defendants-Appellants.
Deborah Jane Dewart, Attorney, Deborah J. Dewart, Attorney at Law, Hubert, NC, for Amicus Curiae Institute for Faith and Family.
Charles S. LiMandri, Attorney, Jeffrey M. Trissell, Esquire, LiMandri & Jonna, LLP, Rancho Santa Fe, CA, for Amicus Curiae The Ethics and Public Policy Center.
Paul Sherman, Attorney, Institute for Justice, Arlington, VA, for Amicus Curiae Institute for Justice.
Shireen Barday, Pallas Partner (US), LLP, New York, NY, for Amici Curiae The Trevor Project, Inc., American Foundation for Suicide Prevention, American Association of Suicidology.
Tassity Johnson, Jenner & Block, LLP, Washington, DC, for Amicus Curiae American Psychological Association.
Daniel Shih, Susman Godfrey, LLP, Seattle, WA, for Amicus Curiae American Civil Liberties Union of Washington, and Other Organizations.
Paul Rugani, Orrick, Herrington & Sutcliffe, LLP, Seattle, WA, Robert Seungchul Chang, Ronald A. Peterson Law Clinic, Seattle, WA, 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, The Loyola Law School Anti-Racism Center.
Sean M. SeLegue, Arnold & Porter Kaye Scholer, LLP, San Francisco, CA, for Amici Curiae First Amendment Scholars, Alan E. Brownstein, Erwin Chermerisky, and Brian Soucek.
Paul Rugani, Orrick, Herrington & Sutcliffe, LLP, Seattle, WA, for Amicus Curiae Boston University Center for Antiracist Research
Shannon Price Minter, Esquire, Legal Director, Christopher Stoll, National Center for Lesbian Rights, San Francisco, CA, for Intervenor-Defendant and Intervenor-Defendant-Appellee.
Before: Kim McLane Wardlaw, Ronald M. Gould, and Mark J. Bennett, Circuit Judges.
Statement by Judge O'Scannlain ;
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35. Judges Collins and Lee did not participate in the deliberations or vote in this case.
The petition for rehearing en banc is DENIED.
O'SCANNLAIN, Circuit Judge,1 joined by IKUTA, R. NELSON, and VANDYKE, Circuit Judges, respecting the denial of rehearing en banc:
Is therapeutic speech speech? Does a tradition of licensing a given profession override all First Amendment limits on licensing requirements? The three-judge panel answered ‘no’ to the first question, and a majority of the panel answered ‘yes’ to the second. In my view, both holdings are erroneous and significant constitutional misinterpretations, and I respectfully dissent from our court's regrettable failure to rehear this case en banc.2
First, the panel said that therapeutic speech is non-speech conduct and so protected only by rational basis review. Tingley v. Ferguson , 47 F.4th 1055, 1077 (9th Cir. 2022). True, it reached this result by faithfully applying our decision in Pickup v. Brown , which held that a California ban on "sexual orientation change efforts" was a regulation of professional conduct only incidentally burdening speech. 740 F.3d 1208, 1221 (9th Cir. 2014). But the Supreme Court has rejected Pickup by name. Nat'l Inst. of Family & Life Advocates v. Becerra ("NIFLA "), ––– U.S. ––––, 138 S. Ct. 2361, 2372, 201 L.Ed.2d 835 (2018). And other circuits have rejected Pickup ’s holding, concluding instead that therapeutic speech is—speech, entitled to some First Amendment protection. See King v. Governor of New Jersey , 767 F.3d 216, 224-29 (3d Cir. 2014) ; Otto v. City of Boca Raton , 981 F.3d 854, 865-66 (11th Cir. 2020). The panel's defense of Pickup ’s continuing viability is unconvincing. We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.
Second, a majority of the panel purported to discover a "long (if heretofore unrecognized) tradition of regulation" which warrants applying only rational basis review to laws burdening therapeutic speech. Tingley , 47 F.4th at 1080 (2022) (quoting NIFLA , 138 S. Ct. at 2372 ). In reality, the majority drew out a gossamer thread of historical evidence into a sweeping new category of First Amendment exceptions. If new traditions are so easily discovered, speech-burdening laws can evade any level of scrutiny simply by identifying some legitimate purpose which they might serve. We should have granted rehearing en banc also to clarify that regulation of the medical profession is not a First-Amendment-free zone.
Brian Tingley, a licensed Washington therapist, challenged a 2018 Washington law prohibiting "conversion therapy." The case turns entirely on the language of the statute and the First Amendment to the United States Constitution.
In 2018, the Washington legislature enacted S.B. 5722, which made "[p]erforming conversion therapy on a patient under age eighteen" a form of unprofessional conduct subject to discipline. S.B. 5722, 65th Leg., Reg. Sess. (Wash. 2018), codified at Wash. Rev. Code §§ 18.130.020(4), 18.130.180(27). "[C]onversion therapy" is defined as any "regime that seeks to change an individual's sexual orientation or gender identity." Wash. Rev. Code § 18.130.020(4)(a). The statute clearly applies to conversion therapy performed entirely through speech.
Tingley's therapeutic work consists of conversations with his patients. These conversations are informed by his belief that a person's biological sex should not be changed, and that sexual relationships ought to occur "between one man and woman committed to each other through marriage." Tingley , 47 F.4th at 1065. He "has worked with several minors ... who have ‘sought his help in reducing same-sex attractions,’ and others ‘who have expressed discomfort with their biological sex.’ " Id. at 1067. He plans to continue working with minor patients along these lines despite S.B. 5722. Id. at 1068. He sought injunctive relief against state officials ("Washington"), alleging, inter alia, that the threat that Washington will enforce S.B. 5722 against him unconstitutionally chills his right to free speech.
The district court dismissed Tingley's claims, and Tingley appealed. The panel affirmed, and in particular held that Tingley's free speech claim was foreclosed by our holding in Pickup. A majority of the panel affirmed on the additional grounds that S.B. 5722 belonged to a longstanding tradition of regulating medical practice.
In Pickup , our court held that a California conversion therapy ban similar to the Washington law at issue here was a regulation of "the conduct of state-licensed professionals," and that "any effect it may have on free speech interests is merely incidental." 740 F.3d 1208, 1230-31. The panel here applied Ninth Circuit precedent to conclude that Tingley's talk therapy was conduct, not speech, thereby effectively putting him at risk of professional discipline. Id. at 1073.
Although the Supreme Court in NIFLA criticized Pickup by name, the three-judge panel concluded that Pickup ’s relevant holding remained good law because it and NIFLA were not "clearly irreconcilable." Tingley , 47 F.4th at 1074-75 (quoting Miller v. Gammie , 335 F.3d 889, 899 (9th Cir. 2003) (en banc)). Pickup described a continuum of constitutional protection for speech by licensed professionals, from most-protected "public dialogue," to least-protected "professional conduct ," with "professional speech ‘within the confines of a professional relationship’ " somewhere in between. The "conversion therapy" ban, according to Pickup , was in the least-protected category: a mere "regulation of conduct," protected only by "rational basis review." Id. at 1072-73 (quoting Pickup , 740 F.3d at 1228 ). Since " NIFLA only abrogated the theoretical ‘midpoint’ of Pickup ’s continuum," the panel here reasoned that " Pickup ’s approach survives for regulations of professional conduct." Id. at 1075.
A majority of the panel identified a second reason to uphold the ban: a "long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders." Id. at 1080 ; see id. at 1092 (Bennett, J., concurring in part) (). The panel majority's...
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