The U.S. Supreme Court. (Washington Blade file photo by Michael Key)
The U.S. Supreme Court on Dec. 11 allowed Washington State to continue enforcing its ban on conversion therapy for minors, another blow to the dangerous and discredited practice of endeavoring to change a patient’s sexual orientation or gender identity.
With a 6-3 vote declining to hear a challenge brought by the anti-LGBTQ Alliance Defending Freedom, the Supreme Court allowed the U.S. Court of Appeals for the Ninth Circuit’s decision protecting the law to remain in effect.
Conservative Justices Brett Kavanaugh, Samuel Alito, and Clarence Thomas voted to take up the case, with Thomas writing a five-page dissent in which he argued “licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.”
“In recent years, 20 States and the District of Columbia have adopted laws prohibiting or restricting the practice of conversion therapy,” Alito wrote in a brief dissent. “It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.”
“This is a huge victory, albeit by the narrowest of margins given that three justices would have taken the case,” Shannon Minter, legal director for the National Center for Lesbian Rights (NCLR), told the Blade in a statement reacting to Monday’s decision.
“It is chilling that the dissents focused on transgender youth and appeared to endorse conversion therapy to prevent them from being who they are,” he said, adding, “Now that we have been given this reprieve, we must do everything possible to educate the public about the terrible harms of conversion therapy for all LGBT youth, including those who are transgender.”
NCLR represents one of the litigants in the case, Equal Rights Washington, which was involved in defending the law — which allows providers to discuss conversion therapy with patients younger than 18 or recommend that it be administered by a religious counselor, but prohibits licensed therapists from performing it.
Major scientific and medical groups as well as LGBTQ and other civil rights organizations support conversion therapy bans for minors, which have passed in 22 states and D.C. according to the Movement Advancement Project.
Judge Ronald M. Gould, writing for the three-judge panel of the 9th Circuit, argued in his decision on the case challenging Washington’s ban that, “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.”
Gould noted that Brian Tingley, a family counselor and advocate for conversion therapy who challenged the law, was still able to communicate about conversion therapy, express his personal views on the subject to his patients, practice conversion therapy on adults, and refer minors to counselors not licensed by the state.
“For decades,” wrote Washington state Attorney General Robert W. Ferguson in a brief, “this court has held that states can regulate conduct by licensed professionals, even if the regulations incidentally impact speech.”
“Conversion therapy,” he added, “puts minors at risk of serious, long-lasting harms, including increased risks of suicide and depression.”
“The Supreme Court has allowed a lower court’s ruling on Washington state’s ‘conversion therapy’ ban to stand—a decision that should have been status-quo and not at all controversial,” Cathryn Oakley, senior director of legal policy at the Human Rights Campaign, told the Blade in a statement.
“But given the recent decisions of this Court, today’s ruling is an important victory as we fight to protect the rights and wellbeing of LGBTQ+ youth across the country,” Oakley said. “Thank you to NCLR for fighting so tirelessly everyday to safeguard these hardfought rights.”
The National LGBT Media Association represents 13 legacy publications in major markets across the country with a collective readership of more than 400K in print and more than 1 million + online. Learn more here: NationalLGBTMediaAssociation.com.
