57 F.4th 1072
9th Cir.2023Background
- Washington enacted S.B. 5722 (2018), disciplining licensed providers for performing “conversion therapy” on persons under 18; the statute defines conversion therapy as any regime that seeks to change sexual orientation or gender identity and covers therapy implemented entirely by speech.
- Brian Tingley, a licensed therapist who provides talk-based, religion-informed counseling aimed at reducing same-sex attraction and aligning clients with biological sex, sued state officials seeking to enjoin enforcement, alleging First Amendment (and related) violations.
- The district court dismissed Tingley’s claims; a Ninth Circuit three-judge panel affirmed, relying principally on Pickup v. Brown to treat therapeutic speech as professional conduct subject only to rational-basis review.
- The panel also concluded there is a longstanding tradition of regulating medical practice that supports deferential review for health-care regulations.
- Tingley petitioned for rehearing en banc; the full court denied rehearing. Judges O’Scannlain (joined by others) and Bumatay filed separate statements dissenting from the denial, arguing Pickup is inconsistent with Supreme Court precedent (notably NIFLA) and that therapeutic — particularly religion-motivated — speech warrants heightened scrutiny.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether talk-based conversion therapy is speech (First Amendment) or non-speech professional conduct | Tingley: pure verbal therapy is speech entitled to First Amendment protection (including religious speech) | Washington: the law regulates professional conduct of licensed therapists; any speech impact is incidental | Panel: followed Pickup — treated the ban as regulation of professional conduct; applied rational-basis review |
| Whether Pickup v. Brown remains controlling post-NIFLA | Tingley: Pickup was undermined by NIFLA and Supreme Court precedent; therapeutic speech should receive at least intermediate scrutiny | Washington: Pickup remains binding Ninth Circuit precedent and is not clearly irreconcilable with NIFLA | Panel: applied Pickup; decline to overrule it; rehearing en banc denied |
| Whether a longstanding tradition of regulating medical practice creates a First Amendment exception for therapeutic speech | Tingley: no narrow, historical tradition authorizing exclusion of therapeutic speech from scrutiny; new tradition not shown | Washington/panel majority: historical regulation of medical practice supports applying rational-basis review to such laws | Panel: found a (broad) tradition and treated the law as within states’ police power; dissenters said the tradition was improperly defined and unsupported |
| Whether rehearing en banc should be granted to reconsider circuit precedent and the tradition analysis | Tingley: en banc reconsideration needed to resolve circuit split and to align with Supreme Court precedent; religious-speech concerns require stricter review | Washington: earlier panel precedent governs; no call for en banc relief | En banc: petition denied; dissents argued the court should revisit Pickup and the panel’s tradition rationale |
Key Cases Cited
- Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (panel precedent treating conversion-therapy bans as regulation of professional conduct)
- Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (Supreme Court rejected treating professional speech as a free-standing exception and emphasized care in speech/conduct line-drawing)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (First Amendment protects expert advice and instruction; limits on regulation-as-conduct)
- NAACP v. Button, 371 U.S. 415 (1963) (government cannot evade First Amendment scrutiny by disguising a speech regulation as conduct regulation)
- Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (physician speech recommending marijuana protected; strict scrutiny required)
- Nat’l Ass’n for the Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) (communications during psychoanalysis characterized as protected speech)
- Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020) (conversion-therapy bans treated verbal therapy as speech; Pickup criticized)
- King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014) (therapeutic speech entitled to at least intermediate scrutiny)
- United States v. Alvarez, 567 U.S. 709 (2012) (narrowly defined historical exceptions to First Amendment protection; false speech exceptions limited)