The US Supreme Court turned down hearing a legal challenge against state laws that ban counsellors from helping minors feel more comfortable in their biological sex.California was the first state to make such counsel illegal, followed by more than 20 states. A ban in Washington state was challenged by family counsellor Brian Tingley and taken all the way to the US Supreme Court. On December 11, the court declined to review the law, letting stand a Ninth Circuit Court of Appeals ruling approving it.Tingly said the law violated his First Amendment free speech rights since the law prohibited him from assisting minors who “want to become comfortable with their biological sex” through talk therapy. Tingley said that a person’s sex is determined at birth as “a gift from God, integral to our very being.”The Ninth Circuit first upheld the California law and stated “parents do not have a fundamental right to choose for children medical or mental health treatment that the state has deemed harmful.” The Ninth Circuit subsequently approved the Washington state law.However, the Eleventh Circuit ruled similar laws passed in some Florida cities are unconstitutional, but this divergence of court opinion was not enough to convince the Supreme Court to weigh in.Last year, a letter from the Department of Justice to all state attorney generals asserted minors have a constitutional right to “gender affirming care” which meant counselling, hormones and surgeries to mimic the biological sex of the patient’s declared gender.“All persons should be free to access the services, programs and activities supported by federal financial assistance without fear that they might face unlawful discrimination for doing so.” However, the letter did not call for this same freedom for contrary therapies.Supreme Court Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh indicated they would have accepted Tingley’s case, while the other three Republican-appointed ones would not.In Washington, “licenced counselors can speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities," Justice Clarence Thomas wrote in his dissent. "Expressing any other message is forbidden — even if the counsellor’s clients ask for help to accept their biological sex.“That is viewpoint-based and content-based discrimination in its purest form. As a result, SB 5722 is presumptively unconstitutional and the state must show that it can survive strict scrutiny before enforcing it.”Justice Alito wrote in his dissent that the case “presents a question of national importance.”“Laws prohibiting or restricting the practice of conversion therapy restrict speech and all restrictions on speech merit careful scrutiny.”The Alliance Defending Freedom defended Tingley. Senior counsel John Bursch said his firm was “disappointed that Washington’s counselling censorship law will continue to prevent many people from getting the help they need.”“The law clearly violates the First Amendment by censoring counsellors like Brian and that ultimately hurts his clients. Washington forces counsellors to tell their clients that there is no path to affirming their biological sex,” he said.“This issue is not going away. We urge the Supreme Court to take a similar case when the time comes.”
