Tingley v. Ferguson, 144 S.Ct. 33

Background:

Washington enacted S.B. 5722, banning licensed health‑care providers from "performing conversion therapy" on patients under 18 and defining conversion therapy as efforts to change sexual orientation or gender identity.
The statute excludes counseling that "provides acceptance, support, and understanding" or that facilitates identity exploration; it permits gender‑affirming approaches but bars counseling that helps minors accept their biological sex.
Penalties for violation include fines, remedial education, suspension, and license revocation.
Brian Tingley, a licensed marriage and family counselor who provides talk therapy to help minors accept their biological sex, sued claiming the statute violates the First Amendment by regulating speech based on content and viewpoint.
The Ninth Circuit held SB 5722 regulates professional conduct (medical treatment), not protected speech, and alternatively that regulation of healthcare practice is traditional and thus may be subject to lower scrutiny; the Supreme Court denied certiorari.
Justices Thomas and Alito dissented from the denial, arguing the question is nationally important, creates a circuit split, and that the statute plainly restricts viewpoint‑based speech and should be reviewed.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does SB 5722 regulate speech or conduct?	Tingley: "Talk therapy" is speech; the law directly targets speech.	Washington: It regulates professional medical treatment/conduct, not speech.	Ninth Circuit: regulation of professional conduct (not speech); Supreme Court denied cert; dissenters say it regulates speech.
Is the law content‑ or viewpoint‑based and thus presumptively unconstitutional?	Tingley: The law permits only the state‑approved, affirming message and bans opposing viewpoints.	Washington: The law advances minors' health and protects from harmful practices, not viewpoint suppression.	Ninth Circuit avoided strict scrutiny by treating the rule as conduct regulation; dissenters say it is viewpoint‑based and requires strict scrutiny.
Does the "professional speech" doctrine remove First Amendment protection from counseling?	Tingley: Professional status does not strip speech of protection; talk therapy is protected speech.	Washington: States have a tradition of regulating healthcare practice, so professional regulation may limit speech.	Ninth Circuit: relied on tradition of medical regulation to treat counseling as unprotected professional conduct; dissenters reject that historical basis.
Should the Supreme Court grant review to resolve the circuit split and constitutional question?	Tingley: Yes—there is a split and important First Amendment implications.	Washington: (implicit) deny review because lower‑court resolution is appropriate.	Supreme Court: denied certiorari; Justices Thomas and Alito would have granted review.

Key Cases Cited

Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content‑based speech restrictions are presumptively unconstitutional)
United States v. Alvarez, 567 U.S. 709 (2012) (speech restrictions require careful scrutiny)
Brown v. Entertainment Merchants Assn., 564 U.S. 786 (2011) (need persuasive historical tradition to justify content restrictions on particular categories of speech)
West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) (government may not prescribe orthodoxy of opinion)
Otto v. Boca Raton, 981 F.3d 854 (11th Cir. 2020) (ordinances restricting conversion‑therapy speech held to regulate speech and struck down)
King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014) (talk therapy restrictions treated as speech regulation)
Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (prior Ninth Circuit decision on conversion therapy and professional regulation)