Opinion
21-35856 21-35815
09-06-2022
Brian Tingley, Plaintiff-Appellant, v. Robert W. Ferguson, in his official capacity as Attorney General for the State of Washington; Umair A. Shah, in his official capacity as Secretary of Health for the State of Washington; Kristin Peterson, in her official capacity as Assistant Secretary of the Health Systems Quality Assurance division of the Washington State Department of Health, Defendants-Appellees, Equal Rights Washington, Intervenor-Defendant-Appellee. Brian Tingley, Plaintiff-Appellee, v. Robert W. Ferguson, in his official capacity as Attorney General for the State of Washington; Umair A. Shah, in his official capacity as Secretary of Health for the State of Washington; Kristin Peterson, in her official capacity as Assistant Secretary of the Health Systems Quality Assurance division of the Washington State Department of Health, Defendants-Appellants, and Equal Rights Washington, Intervenor-Defendant.
Roger G. Brooks (argued), Alliance Defending Freedom, Scottsdale, Arizona; Kristen K. Waggoner and John J. Bursch, Alliance Defending Freedom, Washington, D.C.; David A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia; Cody S. Barnett, Alliance Defending Freedom, Lansdowne, Virginia; Gregory D. Esau and Ellis Li McKinstry, Seattle, Washington; for Plaintiff-Appellant/Cross-Appellee. Cristina Sepe (argued), Jeffrey C. Grant, and Sierra McWilliams, Assistant Attorneys General; Kristin Beneski, First Assistant Attorney General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; for Defendants-Appellees/Cross-Appellants. Raegen Rasnic, Skellenger Bender P.S., Seattle, Washington; Shannon Minter and Christopher Stoll, National Center for Lesbian Rights, San Francisco, California; for Intervenor-Defendant-Appellee. Deborah J. Dewart, Hubert, North Carolina, for Amicus Curiae Institute for Faith and Family. Charles LiMandri, Paul M. Jonna, and Jeffrey M. Trissell, LiMandri & Jonna LLP, Rancho Santa Fe, California; Thomas Brejcha and Peter Breen, Thomas More Society, Chicago, Illinois; for Amicus Curiae Ethics and Public Policy Center. Paul M. Sherman, Institute for Justice, Arlington, Virginia, for Amicus Curiae Institute for Justice. Shireen A. Barday, Gibson Dunn & Crutcher LLP, New York, New York; Isaac Ruiz, Ruiz & Smart PLLC, Seattle, Washington; J. Denise Diskin, QLaw Foundation of Washington, Seattle, Washington; for Amici Curiae The Trevor Project Inc., American Foundation for Suicide Prevention, and American Association of Suicidology. Tassity Johson, Jessica Ring Amunson, and Jessica Sawadogo, Jenner & Block LLP, Washington, D.C.; Nathalie F.P. Gilfoyle and Deanne M. Ottaviano, American Psychologial Association, Washington, D.C.; for Amicus Curiae American Psychologial Association. Daniel J. Shih, Susman Godfrey LLP, Seattle, Washington; Yvonne Chin, Julia Mizutani, Antoinette Davis, Nancy Talner, and Justin Abbasi, ACLU of Washington Foundation, Seattle, Washington; for Amici Curiae American Civil Liberties Union of Washington and Other Organizations. Paul F. Rugani, Orrick Herrington & Sutcliffe LLP, Seattle, Washington, for Amici Curiae Fred T. Korematsu Center for Law and Equality; Aoki Center for Critical Race and Nation Studies; Center on Race, Inequality, and the Law at New York University School of Law; and Loyola Law School Anti-Racism Center. Sean M. SeLegue, Arnold & Porter Kaye Scholer LLP, San Francisco, California, for Amicus Curiae First Amendment Scholars.
Argued and Submitted May 17, 2022 Seattle, Washington
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding D.C. No. 3:21-cv-05359-RJB
COUNSEL
Roger G. Brooks (argued), Alliance Defending Freedom, Scottsdale, Arizona; Kristen K. Waggoner and John J. Bursch, Alliance Defending Freedom, Washington, D.C.; David A. Cortman, Alliance Defending Freedom, Lawrenceville, Georgia; Cody S. Barnett, Alliance Defending Freedom, Lansdowne, Virginia; Gregory D. Esau and Ellis Li McKinstry, Seattle, Washington; for Plaintiff-Appellant/Cross-Appellee.
Cristina Sepe (argued), Jeffrey C. Grant, and Sierra McWilliams, Assistant Attorneys General; Kristin Beneski, First Assistant Attorney General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; for Defendants-Appellees/Cross-Appellants.
Raegen Rasnic, Skellenger Bender P.S., Seattle, Washington; Shannon Minter and Christopher Stoll, National Center for Lesbian Rights, San Francisco, California; for Intervenor-Defendant-Appellee.
Deborah J. Dewart, Hubert, North Carolina, for Amicus Curiae Institute for Faith and Family.
Charles LiMandri, Paul M. Jonna, and Jeffrey M. Trissell, LiMandri & Jonna LLP, Rancho Santa Fe, California; Thomas Brejcha and Peter Breen, Thomas More Society, Chicago, Illinois; for Amicus Curiae Ethics and Public Policy Center.
Paul M. Sherman, Institute for Justice, Arlington, Virginia, for Amicus Curiae Institute for Justice.
Shireen A. Barday, Gibson Dunn & Crutcher LLP, New York, New York; Isaac Ruiz, Ruiz & Smart PLLC, Seattle, Washington; J. Denise Diskin, QLaw Foundation of Washington, Seattle, Washington; for Amici Curiae The Trevor Project Inc., American Foundation for Suicide Prevention, and American Association of Suicidology.
Tassity Johson, Jessica Ring Amunson, and Jessica Sawadogo, Jenner & Block LLP, Washington, D.C.; Nathalie F.P. Gilfoyle and Deanne M. Ottaviano, American Psychologial Association, Washington, D.C.; for Amicus Curiae American Psychologial Association.
Daniel J. Shih, Susman Godfrey LLP, Seattle, Washington; Yvonne Chin, Julia Mizutani, Antoinette Davis, Nancy Talner, and Justin Abbasi, ACLU of Washington Foundation, Seattle, Washington; for Amici Curiae American Civil Liberties Union of Washington and Other Organizations.
Paul F. Rugani, Orrick Herrington & Sutcliffe LLP, Seattle, Washington, for Amici Curiae Fred T. Korematsu Center for Law and Equality; Aoki Center for Critical Race and Nation Studies; Center on Race, Inequality, and the Law at New York University School of Law; and Loyola Law School Anti-Racism Center.
Sean M. SeLegue, Arnold & Porter Kaye Scholer LLP, San Francisco, California, for Amicus Curiae First Amendment Scholars.
Before: Kim McLane Wardlaw, Ronald M. Gould, and Mark J. Bennett, Circuit Judges.
SUMMARY [*]
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 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 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 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.
OPINION
GOULD, Circuit Judge:
This appeal requires us to decide, again, whether a state may prohibit health care providers operating under a state license from practicing conversion therapy on children. Twenty states and the District of Columbia have laws prohibiting or restricting the practice of conversion therapy, which seeks to change an individual's sexual orientation or gender identity. This appeal concerns Washington's law that subjects licensed health care providers to discipline if they practice conversion therapy on patients under 18 years of age.
In 2014, we upheld a substantially similar law enacted by California that subjects 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). Finding itself bound by Pickup, the district court in this case dismissed Plaintiff Brian Tingley's challenge to Washington's nearly identical law.
We affirm. Washington's licensing scheme for health care providers, which disciplines them for practicing conversion therapy on minors, does 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.
BACKGROUND
I
Conversion therapy encompasses therapeutic practices and psychological interventions that seek to change a person's sexual orientation or gender identity. The goal is to change an individual's sexual orientation from gay to heterosexual or to change an individual's gender identity from transgender to cisgender. Within the field of psychology, conversion therapy is also known as "reparative therapy" or "sexual orientation and gender identity change efforts" ("SOGICE"). Conversion therapy developed in the mid-nineteenth century to "cure" patients of homosexual desires and gender-nonconforming behaviors, which were viewed at that time as mental illnesses. Such views, once held by professional organizations in the psychology and psychiatric fields, have evolved with time and research.
The American Psychological Association ("APA") removed homosexuality from the Diagnostic and Statistical Manual of Mental Disorders in 1973, and it now views gender nonconforming behaviors as "gender dysphoria," rather than as a "gender identity disorder." The APA has twice conducted a systematic review of the research on conversion therapy and adopted a resolution that conversion therapy "puts individuals at a significant risk of harm" and is not effective in changing a person's gender identity or sexual orientation. The APA opposes conversion therapy "in any stage of the education of psychologists" and instead "encourages psychologists to use an affirming, multicultural, and evidence-based approach" that includes "acceptance, support, . . . and identity exploration and development, within a culturally competent framework." As of 2015, every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.
II
Washington requires health care providers to be licensed before they may practice in Washington. See Wash. Rev. Code § 18.122.030(2). Title 18 of the Revised Code of Washington regulates business and professions, and Chapter 130 of Title 18, Washington's "Uniform Disciplinary Act,"