Today by a vote of 6-3, the U.S. Supreme Court denied review in Tingley v. Ferguson, (Docket No. 22-942, certiorari denied 12/11/2023). In the case the U.S. 9th Circuit Court of Appeals rejected free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. (See prior posting.) Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:
Under SB 5722, licensed counselors can speak with minors 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 accept their biological sex. 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.
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....
This case is not the first instance of the Ninth Circuit restricting medical professionals’ First Amendment rights, and without the Court’s review, I doubt it will be the last.
Justice Alito filed a brief opinion dissenting from the denial of review. Justice Kavanaugh also indicated that he would grant the petition for certiorari.
