WA counselor asks US Supreme Court to protect his First Amendment freedoms

WASHINGTON – Alliance Defending Freedom attorneys asked the U.S. Supreme Court Monday to hear the case of Brian Tingley, a licensed marriage and family counselor unconstitutionally censored by a Washington state law.

The law violates Tingley’s freedom of speech and infringes on his religious faith and that of his clients by censoring and prohibiting certain private client-counselor conversations regarding sexual orientation and gender identity that the government disfavors while allowing—even encouraging—conversations the government favors. ADF attorneys are asking the Supreme Court to reverse a U.S. Court of Appeals for the 9th Circuit ruling that upheld a district court’s decision to throw out Tingley’s challenge to the law.

“The government can’t control a counselor’s speech. Washington’s counseling censorship law violates freedom of speech and harms counselors as well as clients,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “Brian has counseled all types of people for more than 20 years, and those conversations are private—certainly not open for the government to censor. The government has no business dictating what personal goals a client can pursue in counseling. We hope the Supreme Court will agree to hear this case and halt the unlawful attempt of Washington state officials to ban someone’s speech simply because they disagree with the viewpoints expressed.”

In 2018, the state of Washington adopted a law that prohibits any conversation between a counselor and a minor client in pursuit of a goal to “change” that young person’s perceived gender identity or sexual attractions. The lawsuit notes that the law censors simple conversations within a voluntary counseling relationship between a client and a counselor that are directed toward personal goals that the client chooses for himself or herself.

Significantly, the law only prohibits counsel in one direction: For example, it allows counseling conversations that aim to steer young people toward a transgender identity but prohibits conversations that aim to help that same person return to comfort with his or her sex. The law threatens fines of $5,000 per violation, suspension from practice, and even permanent revocation of a counselor’s license.

Tingley has maintained a private practice offering counseling since 2002. He works with children, adults, and couples dealing with marital and family conflicts, sexual-orientation and gender-identity struggles, depression, anger, and stress management. Tingley engages in no thing but ordinary counseling methods—listening to each client, regardless of what they are facing, and supporting them as they work through these challenges to pursue their own life goals.

As the petition ADF attorneys filed with the Supreme Court in Tingley v. Ferguson explains, “In the Ninth Circuit, counseling speech is not speech at all; it is professional conduct the government can freely regulate. But that view is indefensible after this Court [held in the ADF case NIFLA v. Becerra] that ‘[s]peech is not unprotected merely because it is uttered by “professionals….”’ It also places the Ninth Circuit in conflict with the Third and Eleventh Circuits, both of which have held that speech in a counseling context is still speech entitled to First Amendment protection…. The Court should not allow the circuit split to stand.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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