A licensed marriage and family counselor is asking the Supreme Court to strike down a Washington state law that prohibits counseling against gender transitions.
Counselor Brian Tingley, who is a practicing Christian, says the state’s counseling censorship law violates his freedom of speech and infringes on his religious faith and that of his clients by prohibiting certain private client-counselor conversations regarding sexual orientation and gender identity that are disfavored by the state government, while allowing and encouraging conversations the government favors.
The case is Tingley v. Ferguson, court file 22-942. Bob Ferguson, a Democrat, is Washington’s attorney general, who is responsible for defending the state’s laws in court.
Washington has also enacted separate laws that the state government says “ensure medically necessary gender-affirming treatments are covered by health insurers.”
Tingley has been in private practice providing counseling services since 2002. He works with children, adults, and couples dealing with marital and family conflicts, sexual orientation and gender identity issues, depression, anger, and stress management. He uses ordinary counseling methods, listening to clients and supporting them as they work through these challenges to pursue their own life goals, according to the Alliance Defending Freedom (ADF), which is representing Tingley.
“Tingley grounds human identity in God’s design rather than a person’s feelings or wishes. Many of his clients agree and seek his counsel precisely because they want to align their identity with their faith. But Washington censors Tingley from speaking with clients in that way,” Tingley states in his court petition.
The state’s 2018 law prohibits any conversation between a counselor and a minor client in pursuit of a goal to “change” that young person’s perceived gender identity or sexual attractions, ADF says.
The law censors simple conversations within a voluntary counseling relationship between a client and a counselor that are aimed at achieving personal goals that the client chooses for himself or herself.
But the law only prohibits counseling in one direction, ADF says. For example, the law permits counseling conversations that seek to steer young people toward a transgender identity but prohibits conversations to help that same person return to comfort with his or her sex.
The law imposes fines of $5,000 per violation, suspension from practice and, in some cases, permanent revocation of a counselor’s license.
“The government can’t control a counselor’s speech,” said John Bursch, ADF’s senior counsel and vice president of appellate advocacy.
“Washington’s counseling censorship law violates freedom of speech and harms counselors as well as clients.
“Brian has counseled all types of people for more than 20 years, and those conversations are private—certainly not open for the government to censor. The government has no business dictating what personal goals a client can pursue in counseling,” he said.
“We hope the Supreme Court will agree to hear this case and halt the unlawful attempt of Washington state officials to ban someone’s speech simply because they disagree with the viewpoints expressed.”
In a petition (pdf) filed on March 27, ADF attorneys are asking the high court to overturn a U.S. Court of Appeals for the 9th Circuit ruling that upheld a federal district court’s decision to dismiss Tingley’s challenge to the law.
Tingley’s attorneys argue in the petition that the 9th Circuit was wrong to allow the law that censors his conversations with his clients, ruling that it was prohibiting his conduct and not his speech.
The 9th Circuit decision rejected Tingley’s claim that his First Amendment right to free exercise of religion was violated and created a split with the 3rd and 11th Circuits, “which do not treat counseling—i.e., mere talking—as conduct, and exacerbated a larger split over professional speech regulation,” the petition states.
This view that counseling speech is professional conduct subject to government regulation runs afoul of the Supreme Court’s June 2018 ruling in National Institute of Family and Life Advocates (NIFLA) v. Becerra, according to the petition. In NIFLA, the high court struck down a California law that compelled pro-life pregnancy counseling centers to provide free advertising for the abortion industry and stated that the government can’t force Americans to communicate messages with which they disagree.
Speech given in the context of counseling is still constitutionally protected, ADF says.
It’s unclear when the Supreme Court will decide whether to hear the case.
Ferguson’s office didn’t respond by press time to a request by The Epoch Times for comment. The court has directed Ferguson to file a response to Tingley’s petition by April 27.
This article by Matthew Vadum appeared March 29, 2023, in The Epoch Times.