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Federal appeals court rules against hate group’s claim that ex-gay therapy is “free speech”

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A federal appeals court has upheld a lower court ruling affirming that Washington state can legally ban conversion therapy, the widely debunked form of psychological torture that falsely claims to change people’s sexual orientations and gender identities.

A three-judge panel on the U.S. Court of Appeals for the Ninth Circuit ruled against Brian Tingley, a licensed marriage counselor represented by the anti-LGBTQ hate group Alliance Defending Freedom (ADF). ADF says its plans to appeal the court’s decision.

Tingley and his ADF lawyers sued the state in 2021, alleging that its 2018 law banning conversion therapy for minors violated his freedom of speech and religion. A federal judge threw Tingley’s case out in August 2021, saying that the state had the authority to regulate professional conduct. In response, ADF attorneys appealed to the Ninth Circuit court.

ADF attorneys argued that Tingley used “nothing but ordinary counseling methods” when addressing children’s “sexual-orientation and gender-identity struggles.” His attorneys also said that he didn’t conspire with parents to turn their kids straight. Instead, he said only worked with children who wished not to be LGBTQ, regardless of their parents’ wishes.

Despite their claims, the appeals court’s recent ruling noted that every major medical, psychiatric, psychological, and professional mental health organization opposes conversion therapy, Bloomberg Law reported.

The court wrote, “In relying on the body of evidence before it as well as the medical recommendations of expert organizations, the Washington Legislature rationally acted by amending its regulatory scheme for licensed health care providers to add ‘performing conversion therapy on a patient under age eighteen’ to the list of unprofessional conduct for the health professions.”

The court decided that Washington’s ban is “rationally related” to the state’s goal of protecting minors’ psychological well-being. As such, the court wrote, the state ban “does not unduly burden” Tingley’s First Amendment rights to free speech.

“[States don’t] lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel,” the court added. “[Tingley] is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.”

Washington Attorney General Bob Ferguson, who defended the state ban, applauded the court’s ruling, stating, “Conversion therapy does not work and can be particularly harmful to minors.”

The National Center for Lesbian Rights (NCLR), an LGBTQ advocacy group that intervened in the case, also celebrated the ruling.

“We are thrilled by today’s decision, which ensures that Washington’s lifesaving law can continue to be enforced and that LGBTQ children in Washington will not be subjected to these discredited practices, which have been rejected as unsafe by every major medical organization in this country,” said NCLR legal director Shannon Minter.

ADF lead counsel Roger Greenwood Brooks told Law and Crime that his group plans on appealing.

“The government has no business censoring conversations between clients and counselors,” Brooks said. “When this happens, it is the clients who are robbed of the freedom to pursue the lives they want.”

Washington’s law penalizes conversion therapists with possible fines and license suspensions or revocations. Twenty-nine states have either passed full or partial bans on conversion therapy for minors. In three of those states — Alabama, Georgia, and Florida — court injunctions have stopped the bans from going into effect while legal challenges to the bans proceed in court.

The methods of so-called conversion therapists include encouraging queer people not to masturbate, redirecting their sexual energy into exercise, “covert aversion” (a fancy name for imagining possible negative consequences of being queer), Bible study, directing same-sex sexual desire onto opposite-sex partners, inflicting pain and humiliation anytime LGBTQ feelings arise, and forcing people to act out stereotypical gender roles in behavior and personal appearance.

A 2013 survey showed that 84 percent of former patients of ex-gay therapy said it inflicted lasting shame and emotional harm including depression, anxiety, and suicidal thoughts. Numerous conversion therapy advocates have later come out as still gay and apologized for the harm that conversion therapy causes.

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