Supreme Court lets Washington conversion therapy ban stand

Justices Thomas, Alito, and Kavanaugh would have heard the First Amendment appeal. In a dissent, Thomas laid out an aggressively anti-transgender position.

The U.S. Supreme Court on Monday morning announced that it will not be hearing an appeal over Washington’s ban on conversion therapy for minors, a decision that means the law aimed at protecting LGBTQ children will remain in effect.

Both the district court and U.S. Court of Appeals for the Ninth Circuit had rejected Brian Tingley’s challenge to Washington’s law, dismissing his case. Under Monday’s decision denying certiorari at the Supreme Court, the Ninth Circuit decision stands — and Tingley’s case is at its end.

More than 25 states and Washington, D.C., have some statewide protections against conversion therapy for minors, according to the Movement Advancement Project. Only Indiana has a state law banning local policies banning conversion therapy.

Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh would have granted review in the case. Because only four justices need to vote to grant certiorari and hear a case on appeal, that means all of the other justices voted against hearing the case.

Thomas and Alito both wrote about why they would have heard the appeal, with both stating that there is a split among the courts of appeals on the issue and asserting that the law should be analyzed under the First Amendment as a restriction on speech.

The Ninth Circuit, on the other hand, in Tingley’s challenge, held in 2022 that the Washington law is a regulation on professional conduct. “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,” Judge Ronald Gould wrote for the court.

The claimed circuit split largely comes out of a 2020 decision from the U.S. Court of Appeals for the Eleventh Circuit. There, that court had analyzed county policies banning conversion therapy under the First Amendment, concluding, “We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.”

Both the state of Washington and Equal Rights Washington disputed the claimed existence of a circuit split, noting the difference between the policies and the state law. Specifically, they highlighted the fact that the county ordinances were not part of a comprehensive medical licensing scheme, but rather standalone provisions, and that the consequences for violations included potential criminal punishments.

We don’t know why the justices voted against granting cert, but, they did — so the law stands and conversion therapy for minors remains banned in Washington.

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Other than the effect on the law, the most interesting aspect of Monday’s decision out of the Supreme Court was the vote itself.

As discussed above, because we know that Thomas, Alito, and Kavanaugh would have granted cert, we know the three other Republican appointees — Chief Justice John Roberts, Neil Gorsuch, and Amy Coney Barrett — voted against granting cert in the Washington case. (I’d say those votes get more interesting as you go down the line, with Barrett’s vote being the most notable.)

The closely watched case had been considered repeatedly by the justices at their private conference since September, raising questions about whether there was a debate over whether to hear the case. Often those delays relate to justices writing dissents, as happened here, so it could just be that, but neither of these dissents was especially lengthy or involved, so the 10 weeks were certainly not needed for that.

Another important aspect of Monday’s decision are those dissents that were issued. We ultimately got three different decisions by the three justices who voted to grant cert.

Kavanaugh simply voted and noted; he said nothing about the case or his thoughts.

Alito filed a three-paragraph dissent, highlighting the claimed circuit split and writing, “It is beyond dispute that these laws restrict speech, and all restrictions on speech merit careful scrutiny.”

Thomas went further than Alito, however, writing that the case “strikes at the heart of the First Amendment” and laying out an aggressively anti-transgender position.

He wrote, “There is a fierce public debate over how best to help minors with gender dysphoria” — not about gender-affirming hormone therapy or surgery for minors, as we read in some other cases about anti-trans laws, but instead about any supportive responses to such minors.

The petitioner, Brian Tingley, stands on one side of the divide. He believes that a person’s sex is “a gift from God, integral to our very being.”

Thomas asserted, in other words, that the “divide” is not just over medicine and surgery but over the correctness of transgender people’s lives. (Specifically, as advocated by Tingley and repeated by Thomas, the religious correctness.)

That’s not all. Thomas also asserted that “Washington silenced one side of this debate” by passing its conversion therapy ban. This is an inverse of the conservative position in other instances, where liberals asking courts to strike down laws are said to be asking the court to “silence[] one side of [a] debate.” In those instances, we are told (see, e.g., Judge Jeff Sutton) that democracy and legislatures are the way to go. Here, however, Thomas says that going to the legislature is the problem. (Of course, unconstitutional laws are bad no matter what, but that is not the rhetorical point here — or the position judges like Sutton have taken when Republican legislatures act.)

Finally, Thomas essentially judges the case, writing, “That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional, and the state must show that it can survive strict scrutiny before enforcing it.”

No other justice joined his dissent, although Alito certainly signaled in his dissent that he is inclined to a similar conclusion.

For now, though, the pair are standing alone and statewide conversion therapy bans adopted as a part of comprehensive medical licensing schemes remain good law.