Counseling ban promotes gender identity as religion, censors science, diverse critics tell SCOTUS

By reclassifying talk therapy as regulated conduct, 9th Circuit circumvented SCOTUS ruling against California law that compelled pro-life centers to promote abortion, legal briefs argue.

Published: May 1, 2023 11:18pm

First Amendment speech protections may be circumscribed for therapists and medical professionals in the American West, critics warn, unless the Supreme Court scrutinizes a Washington law prohibiting any "regime that seeks to change" a minor's sexual orientation or gender identity.

Christian doctors, pro-life pregnancy centers, pediatricians, gender-critical feminists and a dozen states led by Idaho filed friend-of-the-court briefs last week urging the justices to review the so-called conversion law, warning it prevents providers from sharing research on the harms of hormonal and surgical procedures for gender-confused minors.

"Comprehensive literature reviews are driving an international pushback against [gender transition procedures] in favor of intensive psychological evaluation and support, and the lawsuits over the harms of transition-affirming interventions have begun," according to the American College of Pediatricians. "GTPs are out of step with evidence-based care for gender dysphoric youth."

The group is a competitor to the American Academy of Pediatrics, which promotes "gender affirming care": puberty blockers, cross-sex hormones and surgical removal of healthy breasts and genitals. AAP published a study seeking to discredit the "social contagion" explanation for the explosion in gender-confused adolescent girls that was challenged by its own allies.

A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld Washington's law last fall, citing its 2014 Pickup ruling upholding California's similar law. "States do not 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," it said.

The decision was internally controversial. Five judges unsuccessfully sought a rehearing before the full 29-judge appeals court, which has jurisdiction over Washington, Oregon, California, Montana, Idaho, Nevada, Arizona, Alaska and Hawaii.

The panel "perpetuated a circuit split that many had thought resolved" by the high court when it deemed a California law that compelled pro-life pregnancy centers to promote abortion resources likely unconstitutional, according to the four-judge dissent written by Judge Diarmuid O'Scannlain. 

In that 2018 ruling, SCOTUS rejected Pickup "by name" without explicitly overruling it, the dissent noted, calling for the 9th Circuit to overrule itself.

"No matter our feelings on the matter, the sweep of Washington's law limits speech motivated by the teachings of several of the world's major religions," Judge Patrick Bumatay wrote in his own dissent, faulting the deferential "rational basis" test the panel used. Catholic and Jewish groups filed briefs against the law.

"There are no legal consequences" if Christian marriage and family counselor Brian Tingley, who filed a pre-enforcement challenge to the law, "tells his neighbor about the emerging international medical consensus to treat gender dysphoria with watchful waiting instead of affirmation," his lawyers wrote in a petition seeking SCOTUS review in March. 

"But if he discusses that same topic in the same way with a counseling client, the State of Washington can strip his license," the Alliance Defending Freedom wrote.

The dozen states led by Idaho told the justices the 9th Circuit ruling was already infecting other circuits, noting the 10th Circuit cited it to reject a First Amendment challenge to Colorado's conversion law.

The panel decision compared talk therapy to treat unwanted sexual orientation or gender identity to "torture," the brief says, even though "the First Amendment's very purpose is to protect speech from being treated like physical assault. Tortured better describes the panel's historical analysis."

The law resembles the foreign examples of state-manipulated "doctor-patient discourse" SCOTUS has frowned upon, such as when "Romanian Communists prohibited doctors from providing their patients with information about birth control to increase the country's birth rate," the states said.

While Washington's law on its face only applies to licensed counselors, "the Ninth Circuit's reasoning on 'medical speech' encourages the state to expand its censorship of speech to doctors as well," the Christian Medical and Dental Association wrote.

"Contrary to the narrative pushed by supporters of gender transition procedures, rates of self-harm do not improve while on puberty blockers, puberty blockers are not proven fully reversible, and long-term complications are known," it said.

Heartbeat International, which calls itself the largest affiliate network of pro-life pregnancy centers, told the high court the Evergreen State was trying to circumvent its ruling against California's compelled abortion resources law.

"If states are allowed to relabel speech as professional conduct and restrict it on that basis, states will predictably aim similar laws at pregnancy resource centers," the brief says. The group urged the justices not to worsen the wave of "threats and acts of violence" against pro-life centers and legislative restrictions on their activities spurred by the Dobbs ruling overturning constitutional protection for abortion.

The pro-choice Women's Liberation Front, which opposes gender ideology, said the law unconstitutionally imposes "a faith-based belief system" on Washington residents that forces "non-believers to express affirmation" of a "quasi-religious concept that relies on the belief of an internal, gendered spirit or soul."

By prioritizing superstition over "the material reality of human sexual dimorphism or uncertain medical outcomes ... the state has tacitly endorsed science denialism and implied disapproval of anyone who prefers to acknowledge reality," the brief says.

"Across the globe, gender specialists and whistleblowers have raised alarm over the scant evidence supporting gender-affirming protocols and the mounting evidence that gender affirmation causes harm to minors," the Ethics and Public Policy Center told the high court.

"Gender affirmation has a domino effect" that is "psychologically difficult to reverse" apart from the physical changes caused by hormone therapy, the brief says. The so-called Dutch protocol that underlies gender affirming care worldwide "never supported social transition for pre-pubertal children over concerns that it would bias outcomes toward persistence in transgender identification."

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