U.S. appeals court upholds Washington state’s conversion therapy ban

A three-judge panel of the Ninth Circuit unanimously affirmed that Washington state’s law protecting minors from conversion therapy is constitutional and may be enforced.

In its ruling the ninth circuit wrote: “In relying on the body of evidence before it as well as the medical recommendations of expert organizations, the Washington Legislature rationally acted by amending its regulatory scheme for licensed health care providers to add ‘performing conversion therapy on a patient under age eighteen’ to the list of unprofessional conduct for the health professions.”

Washington prohibited licensed mental health professionals from subjecting minors to conversion therapy in 2018, as more than 20 other states have also done.

In a lawsuit filed last year in the U.S. District Court of the Western District of Washington, a family therapist is claiming that a law banning the practice of applying conversion therapy techniques on minors and signed by Democratic Governor Jay Inslee in 2018 is a violation of his First and Fourteenth Amendment rights.

Brian Tingley, who is represented by the Scottsdale, Arizona-based anti-LGBTQ Alliance Defending Freedom, (ADF), identifies himself as a “Christian licensed marriage and family therapist” and alleges in the court filings that the provided definition of “conversion therapy” is “vague, content-biased, and biased against one perspective or point of view.”

Represented by the National Center for Lesbian Rights (NCLR), Equal Rights Washington intervened in the case to help the Washington Attorney General defend the law.

“We are thrilled by today’s decision, which ensures that Washington’s lifesaving law can continue to be enforced and that LGBTQ children in Washington will not be subjected to these discredited practices, which have been rejected as unsafe by every major medical organization in this country,” said Shannon Minter, NCLR legal director. Minter argued on behalf of intervenor Equal Rights Washington before the federal district court in Tacoma last year.

“Laws like Washington’s are critical to protecting minors and parents from being harmed by unethical therapists who falsely claim to be able to prevent a child from being gay or transgender,” said Mathew Shurka, co-founder of Born Perfect, NCLR’s campaign to end conversion therapy. “As a survivor of more than five years of conversion therapy, I know firsthand how damaging these practices are to young people and their families. The medical community has rejected these practices because they are harmful, ineffective, and unnecessary. Being LGBTQ is not a mental health disorder. Trying to change such a fundamental aspect of a person’s identity is not only impossible, it is profoundly dangerous and causes serious, lasting harm.”

In September 2021, a federal district court rejected Tingley’s challenge and upheld Washington’s law. The court relied on Pickup v. Brown, a 2014 decision in which the Ninth Circuit rejected a similar challenge to a virtually identical California law. The court rejected Tingley’s argument that the U.S. Supreme Court had implicitly overruled Pickup in its 2018 decision in National Institute of Family & Life Advocates v. Becerra, which struck down California laws regulating pregnancy clinics.

In today’s decision, the Ninth Circuit held that its prior ruling in Pickup is correct and that laws barring conversion therapy regulate professional conduct, not speech. The court held that the Washington legislature “acted rationally when it decided to protect the physical and psychological well-being of its minors by preventing state-licensed health care providers from practicing conversion therapy on them.” The Ninth Circuit noted that Washington legislators also “relied on the fact that ‘[e]very major medical and mental health organization’ has uniformly rejected aversive and non-aversive conversion therapy as unsafe and inefficacious.”

Two of the judges – Kim Wardlaw and Ronald Gould – also held that Washington’s law is valid for the additional reason that states have a long tradition of regulating health care providers to protect public health and safety.

Judge Mark Bennett declined to join that part of the opinion, stating that it was unnecessary since the court’s prior holding in Pickup was binding.

Since California enacted the first statewide law protecting minors from conversion therapy in 2011, 20 other states and more than 100 municipalities have enacted similar laws. These laws have been upheld by the Ninth and Third Circuits and by federal district courts in Maryland, Florida, and Illinois.

The sole exception is a split decision in 2020 by a three-judge panel of the Eleventh Circuit in Otto v. Boca Raton, which reversed a federal district court opinion upholding two Florida municipal ordinances that protected minors from conversion therapy. The Eleventh Circuit declined to rehear the case en banc earlier this year, despite strong dissenting opinions noting that the panel’s decision improperly disregarded the district court’s factual findings and misapplied First Amendment law.