Clarence Thomas is outraged that the Supreme Court refused to take up conversion therapy case

The Supreme Court refused to hear a challenge to a Washington state law banning conversion therapy for minors, and Justice Clarence Thomas wrote a blistering dissent.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” Thomas wrote in his dissent. “Yet, under S.B. 5722, licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.”

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The challenge to the Washington law known as S.B. 5722 was filed by Brian Tingley, a licensed family counselor who practices conversion therapy. He argues that the state’s ban on licensed therapists performing conversion therapy on minors violates his constitutional rights. He is represented by the anti-LGBTQ+ hate group Alliance Defending Freedom.

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Tingley’s case was dismissed by a U.S. district court in Washington in 2021, with Judge Robert Bryan ruling that the state has the authority to regulate medical practice and that the law does not target Tingley on the basis of his religion as it applies to providers of all faiths. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the Washington law last year, and the full appeals court refused to rehear the case in January.

Tingley asked the Supreme Court to hear his appeal, but six of the justices voted not to hear his case. Three — Thomas and Justices Samuel Alito and Brett Kavanaugh — dissented and said that the Court should have heard his appeal. Since the Court did not hear his appeal, the Washington law will stay in place.

The state law defined attempts to change a minor’s sexual orientation or gender identity as “unprofessional behavior” and instituted fines, suspensions, and a possible revocation of a therapist’s license as potential penalties for violating the law. Convserion therapy has been described as a form of “psychological torture” by numerous former patients as well as the Florida A & M University Law Review.

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

Conversion therapy is opposed by the American Psychological Association, which adopted a resolution saying that homosexuality “per se is a normal and positive variation of human sexual orientation.”

But Thomas doesn’t see the law as a way to regulate the conduct of state-licensed professionals but instead as a restriction on their free speech.

“Expressing any other message is forbidden — even if the counselor’s clients ask for help to accept their biological sex,” he wrote. “That is viewpoint-based and content-based discrimination in its purest form.”

“Although the court declines to take this particular case, I have no doubt that the issue it presents will come before the court again,” he concluded. “When it does, the court should do what it should have done here: grant certiorari to consider what the First Amendment requires.” 

Tingley claims that his form of conversion therapy doesn’t harm children because they come to him voluntarily, not forced by their parents, a claim that’s hard to believe considering the power that parents have over minor children. His lawyers argue that “scientific knowledge is far from complete on matters of gender identity and sexual orientation,” which is not true.

Tingley describes his conversion therapy practice in his lawsuit.

He said that he helps LGBTQ+ youth “heal from past trauma” so that they can be straight and cisgender. He claims that his underage clients come to him voluntarily, but then adds that one of the reasons they want to change is their “desire to live a life of integrity within his or her family.”

“While in most cases the minor will initially attend on the prompting of their parent or parents,” Tingley said in his complaint, he insists that the minors he tries to convert are there “voluntarily.”

Tingley describes one of his clients who came to him as a trans boy because of “the parents’ desire… to find a counselor who would assist their daughter in understanding herself and exploring the reasons for her unhappiness with her sex and identity as a girl, and hopefully enable her to return to comfort with her female body and reproductive potential.”

The lawsuit says that the parents pushed their son to see Tingley and that the boy said he was “willing” to go, which apparently didn’t set off any red flags for Tingley. He said that he provided therapy for the teen for years, sometimes with his parents present, and says that he is happy now as a cisgender woman.

Tingley also described a gay or bi teen, again saying that the teen’s parents made him go to conversion therapy. Tingley said that the teen was straight until he accidentally looked at gay porn on the internet, which “stirred up same-sex attractions in himself that he did not previously experience and would not otherwise have experienced.” He did not provide any evidence that that is how being queer works.

Tingley said that the teen feels he “is making progress towards his goals” of not being attracted to men and, instead, being attracted to women.