Petitions of the week

Washington family counselor challenges state’s ban on conversion therapy

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Conversion therapy, the practice of seeking to change a gay or transgender person’s sexual orientation or gender identity through counseling, is outlawed or heavily restricted in roughly half of the country. This week, we highlight cert petitions that ask the court to consider, among other things, whether a Washington state law that bars licensed therapists from practicing conversion therapy on children violates the First Amendment.

Washington passed Senate Bill 5722 in 2018 to add conversion therapy for minors to the list of violations for which therapists can lose their licenses. Nineteen other states and the District of Columbia have similar laws.

In the same year, a divided Supreme Court ruled in National Institute for Family and Life Advocates v. Becerra that “crisis pregnancy centers” opposed to abortion were likely to prevail in their First Amendment challenge to a California law that required them to disclose information about the availability of abortion to their patients.

The petition now before the court was filed by Brian Tingley, who has worked in Washington for over 20 years as a licensed marriage and family counselor. Seeking to prevent the enforcement of S.B. 5772 against him, Tingley filed a lawsuit against the state in 2021. He argued that the law would abridge his First Amendment right to speak freely when counseling his clients under the age of 18 on issues of sexual orientation or gender identity. (A self-described “Christian provider” of counseling services, Tingley also argued that Washington’s law would violate his First Amendment right to the free exercise of religion.)

A federal district court in Tacoma dismissed Tingley’s lawsuit. The district court regarded itself as bound by a 2014 ruling by the U.S. Court of Appeals for the 9th Circuit in Pickup v. Brown, which upheld a nearly identical California ban on conversion therapy.

Tingley appealed, arguing that the 9th Circuit’s decision in Pickup was no longer good law after the Supreme Court’s decision in NIFLA. But the 9th Circuit disagreed. NIFLA, the court of appeals reasoned, rejected the idea that professional speech always receives less protection under the First Amendment. But at the same time, the court of appeals explained, the Supreme Court made clear that there are exceptions to that rule – such as the situation here, when the state is regulating professional conduct that also involves speech.

In Tingley v. Ferguson, Tingley asks the justices to grant review and reverse the 9th Circuit’s ruling. The courts of appeals are divided over how to categorize conversion therapy, he says. Two other courts of appeals regard a therapist-client conversation as speech, rather than conduct, Tingley writes. “The First Amendment should protect the speech of professionals, not empower government to police ‘the content of professional speech,’ and thereby ‘fail to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’”

A list of this week’s featured petitions is below:

King v. Brownback
22-912
Issue: Whether the Federal Tort Claims Act’s judgment bar, which this court has repeatedly said functions in much the same way as the common-law doctrine of res judicata, nevertheless operates to bar claims brought together in the same action.

Devillier v. Texas
22-913
Issue: Whether a person whose property is taken without compensation may seek redress under the self-executing takings clause of the Fifth Amendment even if the legislature has not affirmatively provided them with a cause of action.

Transervice Logistics, Inc. v. Central States, Southeast and Southwest Areas Pension Fund
22-935
Issue: Whether a notice of termination for a collective bargaining agreement must contain a clear statement of an intent to terminate the agreement, or must contain specific wording only when the agreement requires it.

Tingley v. Ferguson
22-942
Issues: (1) Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the free speech clause of the First Amendment; and (2) whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the court should overrule Employment Division v. Smith.