Counselor Challenged Washington State Law That Threatens Free Speech, Harms Clients

Counselors often develop strong, trusting relationships with their clients. After all, their jobs involve discussing their clients’ personal thoughts, feelings, and experiences in a confidential setting.

But imagine this scenario: you sit down in your counselor’s office for your monthly appointment. Over the years, you've grown to trust your counselor and have gradually opened up to him more and more.

This appointment is different. Today, there's a third person in the room. It's a representative of the state government. Reluctantly, you start talking with your counselor. But every time the conversation turns to a particular topic, the representative interrupts, saying, “This conversation is prohibited!” And all that trust that you've built with your counselor over the years is suddenly on thin ice.

This may seem like a radical hypothetical. But it is essentially what could happen under a law in Washington. The law permits the government to intrude on confidential counseling sessions and dictate what counselors and clients can discuss.

This didn’t sit well with one counselor, who challenged the law in court.

A caring counselor

Brian Tingley has been a marriage and family counselor for over 20 years in the state of Washington. He counsels married couples, individual adults, teens, and families through the struggles they are facing in their relationships and lives. Brian cares deeply about his clients and wishes to help them in any way he can.

Brian is diligent in helping his clients achieve the goals they personally set for themselves. He carefully listens to and reasons with his clients, providing feedback and guidance.

Like many of his clients, Brian is a Christian. And his Christian beliefs inform his understanding of human nature. But Brian never tries to force his own beliefs on his clients.

Many of Brian’s clients share his Christian faith and come to Brian for counseling about issues of sexuality, gender, and family from a Christian perspective. But a Washington law prevents Brian from providing this counseling.

Washington’s viewpoint discrimination

In 2018, Washington passed a law that allows government officials to decide what can be said within the confidential conversations between counselors and their clients.

Under the Washington law, Brian can’t mention or discuss anything related to gender, sexual orientation, sexual behaviors, or gender identity that is not in line with the state’s views.

If he does—even if it relates to goals that clients set for themselves—Brian would face fines up to $5,000 per violation, and even permanent loss of his license. In other words, he could lose the ability to support his family.

Brian knew this law was unjust and wasn’t in the best interest of his clients. So he decided to take a stand. And he reached out to Alliance Defending Freedom for help.

Unfortunately, a federal district court and then an appellate court dismissed his case, and the U.S. Supreme Court declined to review this decision. But that does not mean the Supreme Court will never address the issue of counseling censorship. ADF is currently representing another counselor from Colorado in federal court, and we will continue to defend the freedom of counselors to have conversations with their clients without government interference.

Major implications

For government officials to insert themselves into confidential counseling sessions—and determine which goals counselors and their clients can pursue and which topics they can discuss—is a radical violation of free speech.

It’s the client’s choice to pursue a specific goal through counseling, not the government’s. Similarly, it’s up to counselors like Brian to determine how best to help their clients achieve their counseling goals during their sessions. The government has no business telling counselors what topics they can and cannot discuss during these private conversations.

In addition, the ideology being pushed by Washington officials has already harmed children. A study published by gender dysphoria expert Dr. Lisa Littman in October 2021 showed that many young people—especially girls—are encouraged to identify as transgender without receiving adequate psychological evaluation and counseling. Even two leading surgeons who identify as transgender have expressed concerns about the “sloppy” practices of some providers who seemingly encourage transgender identification before doing the proper research.

The government has no right to require counselors like Brian to advocate for transgender identification. Despite the unfortunate rulings in this case, ADF will continue to defend counselors from government censorship.

Case timeline

• May 2021: ADF filed a lawsuit against the state of Washington on Brian’s behalf.
• August 2021: A federal district court dismissed Brian’s case. ADF attorneys representing Brian appealed to the U.S Court of Appeals for the 9th Circuit.
• May 2022: The 9th Circuit held oral argument in Brian’s case.
• September 2022: The 9th Circuit affirmed the dismissal, denying Brian the opportunity to prove his case.
• January 2023: The 9th Circuit denied Brian's request to rehear his appeal en banc. Two judges filed strongly worded opinions objecting to that refusal.
• March 2023: ADF attorneys asked the U.S. Supreme Court to hear Brian's case.
• December 2023: The Supreme Court declined to hear the case.