The Supreme Court denied certiorari yesterday in Tingley v. Ferguson, the case in which the Ninth Circuit rejected a First Amendment challenge to Washington’s ban on “conversion” or “talk” therapy for minors suffering from gender dysphoria. The lower court had treated therapeutic speech as non-speech conduct and discovered a “long (if heretofore unrecognized) tradition of regulation” to justify applying deferential rational basis review to laws that burden therapeutic speech.
Three justices—Clarence Thomas, Samuel Alito, and Brett Kavanaugh—dissented from the denial, so the Court was just one vote shy of the margin needed to grant certiorari. Dissenting opinions came from Justices Thomas and Alito, both of whom noted that there is a circuit split that calls for resolution on what were clearly speech restrictions. Justice Thomas’ opinion noted that the therapy involved “is conducted solely through speech.” Washington allowed licensed counselors to “speak with minors about gender dysphoria, but only if they convey the state-approved message of encouraging minors to explore their gender identities. Expressing any other message is forbidden—even if the counselor’s clients ask for help to accept their biological sex. That is viewpoint-based and content-based discrimination in its purest form.”
As a rule, I do not draw conclusions from cert denials as to where a majority of justices stand on a particular issue. It is especially difficult to discern the precise reasons for denial when we hear only from the dissenters. Would another case be a more fitting vehicle to decide this question? I don’t know. But I do know that this issue is not going away, and the lingering circuit split must be resolved sooner or later. States like Washington should not get away with their thinly veiled censorship.