BRIAN TINGLEY V. ROBERT FERGUSON, ET AL, No. 21-35815 (9th Cir. 2022)
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Plaintiff worked as a licensed marriage and family therapist for more than twenty years and his Christian views inform his work. Plaintiff sued state officials (“Washington”) in May 2021, seeking to enjoin SB 5722. Equal Rights Washington (“ERW”), the lead organization supporting SB 5722’s passage, intervened as a defendant. Plaintiff sought a preliminary injunction, which Washington and ERW both opposed, and Defendants filed motions to dismiss his complaint.
The Ninth Circuit affirmed the district court’s dismissal of Plaintiff’s lawsuit. The panel held that Plaintiff had standing to bring his claims in an individual capacity and the claims were prudentially ripe. Plaintiff’s complaint showed a plan or desire to violate Washington’s law; Washington confirmed that it will enforce the ban on conversion therapy “as it enforces other restrictions on unprofessional conduct;” and Plaintiff alleged that the law had chilled his speech and that he has self-censored himself out of fear of enforcement. Plaintiff did not, however, have standing to bring claims on behalf of his minor clients.
Further, the panel held that Washington’s licensing scheme for health care providers did not violate the First or Fourteenth Amendments. The panel held that the law was a neutral law targeted at preventing the harms associated with conversion therapy, and not at the religious exercise of those who wish to practice this type of therapy on minors. Finally, Washington’s law was not unconstitutionally vague. The law gave fair notice of what conduct was proscribed to a reasonable person and contained standards limiting the discretion of those who will enforce it.
Court Description: Civil Rights. The panel affirmed the district court’s dismissal of an action challenging a Washington state licensing scheme that disciplines health care providers for practicing conversion therapy on minors. Conversion therapy encompasses therapeutic practices and psychological interventions that seek to change a person’s sexual orientation or gender identity. Plaintiff Brian Tingley, a licensed marriage and family therapist, alleged that Washington’s ban on practicing conversion therapy on minors violated his free speech and free exercise rights under the First Amendment, as well as those of his clients, and that the law was unconstitutionally vague under the Fourteenth Amendment. The panel held that Tingley had standing to bring his claims in an individual capacity and the claims were prudentially ripe. Tingley’s complaint showed a plan or desire to violate Washington’s law; Washington confirmed 4 TINGLEY V. FERGUSON that it will enforce the ban on conversion therapy “as it enforces other restrictions on unprofessional conduct;” and Tingley alleged that the law had chilled his speech and that he has self-censored himself out of fear of enforcement. Tingley did not, however, have standing to bring claims on behalf of his minor clients. Without more detail about his current clients an opinion adjudicating the alleged rights of these third parties would be plainly advisory. Addressing the merits, the panel stated that in 2014, this court upheld a substantially similar law enacted by California that subjected 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). In Pickup, the court concluded that California’s regulation of conversion therapy treatment was a regulation of conduct and that any effect it may have on free speech interests was merely incidental. The panel held that the Supreme Court’s intervening decision in National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”), did not require the court to abandon the analysis in Pickup insofar as it related to conduct. Because NIFLA abrogated only the part of Pickup relating to the professional speech doctrine, and not its central holding that California’s conversion therapy law was a regulation on conduct that incidentally burdened speech, Pickup remained binding law and controlled the outcome of this case. The panel held that Washington’s licensing scheme for health care providers did 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. The Washington legislature acted rationally when it decided TINGLEY V. FERGUSON 5 to protect the “physical and psychological well-being” of its minors by preventing state-licensed health care providers from practicing conversion therapy on them. In addition to being supported by circuit precedent, the decision to uphold Washington’s law was confirmed further by its place within the well-established tradition of constitutional regulations on the practice of medical treatments. There is a long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders. Washington’s law not only fell within the tradition of state regulation of the health professions, but it also affected the health of children—a vulnerable group in the eyes of the law. Affirming the dismissal of Tingley’s challenge under the Free Exercise Clause of the First Amendment, the panel held that the law was a neutral law targeted at preventing the harms associated with conversion therapy, and not at the religious exercise of those who wish to practice this type of therapy on minors. Finally, Washington’s law was not unconstitutionally vague. By its terms, the law gave fair notice of what conduct was proscribed to a reasonable person, and certainly to a license-holding provider with the specialized, technical knowledge of the psychology profession; and contained standards limiting the discretion of those who will enforce it. Concurring in part, Judge Bennett joined the majority opinion except as to Part III pertaining to the tradition of constitutional regulations on the practice of medical treatments. Judge Bennett stated that the court should not hypothesize with dicta when the conclusion is commanded 6 TINGLEY V. FERGUSON by binding precedent. As the panel held in Part II of the discussion section, it was bound by Pickup as to Tingley’s free speech claim. Part III was therefore unnecessary, including its discussion of the “long (if heretofore unrecognized) tradition of regulation governing the practice of those who provide health care within state borders”—an attempt to meet NIFLA’s exception for a category of speech warranting lesser scrutiny.
The court issued a subsequent related opinion or order on January 23, 2023.
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