Tingley v. Ferguson ( 2023 )

Cite as: 601 U. S. ____ (2023) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
BRIAN TINGLEY v. ROBERT W. FERGUSON, ATTORNEY
GENERAL OF WASHINGTON, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 22–942. Decided December 11, 2023
The petition for a writ of certiorari is denied. JUSTICE
KAVANAUGH would grant the petition for a writ of certio-
rari.
JUSTICE THOMAS, dissenting from the denial of certiorari.
This petition asks us to consider whether Washington can
censor counselors who help minors accept their biological
sex. Because this question has divided the Courts of Ap-
peals and strikes at the heart of the First Amendment, I
would grant review.
I
There is a fierce public debate over how best to help mi-
nors with gender dysphoria. 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.” Pet. for
Cert. 7. As a licensed marriage and family counselor, Tin-
gley seeks to assist minors who suffer from gender dyspho-
ria but “want to become comfortable with their biological
sex.” Ibid. Tingley does so through “talk therapy”—i.e.,
therapy conducted solely through speech. The State of
Washington is on the other side of the divide. Its view is
that the State should “protec[t] its minors against exposure
to serious harms caused by” counseling to change a minor’s
gender identity, Note, Wash. Rev. Code §18.130.180 (2018),
and, as a result, that counselors should only affirm a mi-
nor’s chosen gender identity.
Washington silenced one side of this debate by enacting
S.B. 5722, 65th Leg., Reg. Sess. (2018) (SB 5722). SB 5722
2 TINGLEY v. FERGUSON
THOMAS, J., dissenting
prohibits licensed healthcare providers from “[p]erforming
conversion therapy on a patient under age eighteen.”
§18.130.180(26). According to Washington, “[c]onversion
therapy” is “a regime that seeks to change an individual’s
sexual orientation or gender identity.” §18.130.020(4)(a).
Washington excludes from the definition of “[c]onversion
therapy” counseling “that provide[s] acceptance, support,
and understanding of clients or the facilitation of clients’
coping, social support, and identity exploration and devel-
opment that do[es] not seek to change sexual orientation or
gender identity.” §18.130.020(4)(b). In other words, help-
ing a minor become comfortable with his biological sex is
prohibited “conversion therapy,” while encouraging a minor
to change his “outward, physical traits” to “alig[n] . . . with
[his] gender identity” is not. Dept. of Health and Human
Services, Office of Population Affairs, Gender-Affirming
Care and Young People 1 (Aug. 2023). Violations of SB
5722 are punishable by fines up to $5,000, “remedial edu-
cation,” suspension from practice, and license revocation.
Wash. Rev. Code §18.130.160.
After Washington enacted SB 5722, Tingley filed suit, ar-
guing that SB 5722 violates the First Amendment by re-
stricting his speech based on its viewpoint and content. The
Ninth Circuit, however, held that SB 5722 does not regulate
speech at all. It reasoned that counseling is a type of med-
ical treatment and qualifies as only professional conduct.
47 F. 4th 1055, 1080 (2022). In the alternative, the Ninth
Circuit held that counseling is unprotected by the First
Amendment because there is a “tradition of regulation gov-
erning the practice of those who provide health care within
state borders.” Ibid. The Ninth Circuit denied rehearing
en banc over the statement of Judge O’Scannlain, joined by
three others, and Judge Bumatay’s dissent. See 57 F. 4th
1072 (2023).
The Ninth Circuit’s opinion created a Circuit split. Two
years earlier, the Eleventh Circuit concluded that near-
Cite as: 601 U. S. ____ (2023) 3
THOMAS, J., dissenting
identical Florida municipal ordinances did regulate speech.
Otto v. Boca Raton, 981 F. 3d 854, 859, 865 (2020). The
Eleventh Circuit held the ordinances unconstitutional be-
cause they prohibited speech based on content and view-
point, and could not satisfy strict scrutiny. Id., at 864–870.
The Third Circuit has also held that laws restricting talk
therapy designed to change a client’s sexual orientation reg-
ulate speech, not conduct. King v. Governor of New Jersey,
767 F. 3d 216, 224 (2014), abrogated on other grounds by
National Institute of Family and Life Advocates v. Becerra,
585 U. S. 755 (2018). Tingley asks us to resolve this Circuit
split and review whether SB 5722 violates the First Amend-
ment. We should have.
II
There is little question that SB 5722 regulates speech and
therefore implicates the First Amendment. True, counsel-
ing is a form of therapy, but it is conducted solely through
speech. “If speaking to clients is not speech, the world is
truly upside down. [SB 5722] sanction[s] speech directly,
not incidentally—the only ‘conduct’ at issue is speech.”
Otto, 981 F. 3d, at 866; see King, 767 F. 3d, at 228 (noting
that “it would be strange indeed to conclude” talk therapy
is conduct when “the same words, spoken with the same in-
tent” by a student is speech).
It is a “fundamental principle that governments have ‘no
power to restrict expression because of its message, its
ideas, its subject matter, or its content.’ ” National Institute
of Family and Life Advocates, 585 U. S., at 766 (quoting
Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015); some in-
ternal quotation marks omitted)). A law that restricts
speech based on its content or viewpoint is presumptively
unconstitutional and may be upheld only if the state can
prove that the law is narrowly tailored to serve compelling
state interests. Ibid.
4 TINGLEY v. FERGUSON
THOMAS, J., dissenting
Under SB 5722, licensed counselors can speak with mi-
nors about gender dysphoria, but only if they convey the
state-approved message of encouraging minors to explore
their gender identities. Expressing any other message is
forbidden—even if the counselor’s clients ask for help to ac-
cept their biological sex. That is viewpoint-based and con-
tent-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 enforc-
ing it.
The Ninth Circuit attempted to sidestep this framework
by concluding that counseling is unprotected by the First
Amendment because States have traditionally regulated
the practice of medicine. See 47 F. 4th, at 1080. The Court
has already made clear its “reluctan[ce] to ‘exemp[t] a cate-
gory of speech from the normal prohibition on content-
based restrictions.’ ” National Institute of Family and Life
Advocates, 585 U. S., at 767 (quoting United States v. Alva-
rez, 567 U. S. 709, 722 (2012) (plurality opinion)). Accord-
ingly, the Court has instructed that states may not “impose
content-based restrictions on speech without ‘persuasive
evidence . . . of a long (if heretofore unrecognized) tradition’
to that effect.” 585 U. S., at 767 (quoting Brown v. Enter-
tainment Merchants Assn., 564 U. S. 786, 792 (2011); some
internal quotation marks omitted). Despite this instruc-
tion, the Ninth Circuit did not offer a single example of a
historical regulation analogous to SB 5722, which targets
treatments conducted solely through speech. See 57 F. 4th,
at 1082 (O’Scannlain, J., statement respecting denial of re-
hearing en banc) (explaining the panel’s “citations are not
merely insufficient evidence—they are not even relevant
evidence”).
This case is not the first instance of the Ninth Circuit re-
stricting medical professionals’ First Amendment rights,
and without the Court’s review, I doubt it will be the last.
This Court recently reversed the Ninth Circuit’s decision to
Cite as: 601 U. S. ____ (2023) 5
THOMAS, J., dissenting
uphold a law compelling crisis pregnancy centers to dissem-
inate government-drafted notices. National Institute of
Family and Life Advocates, 585 U. S., at 765–66. The Ninth
Circuit declined to apply strict scrutiny because it con-
cluded that the law regulated only “professional speech.”
Id., at 767. As we explained, however, “[s]peech is not un-
protected merely because it is uttered by ‘professionals.’ ”
Ibid. And, we warned that “regulating the content of pro-
fessionals’ speech ‘pose[s] the inherent risk that the Gov-
ernment seeks not to advance a legitimate regulatory goal,
but to suppress unpopular ideas or information.’ ” Id., at
771 (quoting Turner Broadcasting System, Inc. v. FCC, 512
U. S. 622, 641 (1994)). That warning has proved prescient.
* * *
“If there is any fixed star in our constitutional constella-
tion, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act
their faith therein.” West Virginia Bd. of Ed. v. Barnette,
319 U. S. 624, 642 (1943). Yet, under SB 5722, licensed
counselors cannot voice anything other than the state-ap-
proved opinion on minors with gender dysphoria without
facing punishment. The Ninth Circuit set a troubling prec-
edent by condoning this regime. Although the Court de-
clines to take this particular case, I have no doubt that the
issue it presents will come before the Court again. When it
does, the Court should do what it should have done here:
grant certiorari to consider what the First Amendment re-
quires.
Cite as: 601 U. S. ____ (2023) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
BRIAN TINGLEY v. ROBERT W. FERGUSON, ATTORNEY
GENERAL OF WASHINGTON, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 22–942. Decided December 11, 2023
JUSTICE ALITO, dissenting from the denial of certiorari.
Like JUSTICE THOMAS, I would grant the petition for a
writ of certiorari. This case presents a question of national
importance. In recent years, 20 States and the District of
Columbia have adopted laws prohibiting or restricting the
practice of conversion therapy. It is beyond dispute that
these laws restrict speech, and all restrictions on speech
merit careful scrutiny.
There is a conflict in the Circuits about the constitution-
ality of such laws. Compare, 47 F. 4th 1055 (CA9 2022),
with Otto v. Boca Raton, 981 F. 3d 854 (CA11 2020). And
the Ninth Circuit’s holding is based on the highly debatable
view that its prior decision in Pickup v. Brown, 740 F. 3d
1208 (2014), survived at least in part our decision in Na-
tional Institute of Family and Life Advocates v. Becerra, 585
U. S. ___, ___ (2018) (slip op., at ___) which singled out
Pickup for disapproval.
For these reasons, this case easily satisfies our estab-
lished criteria for granting certiorari, see this Court’s Rule
10(a), and I would grant review.