Last winter, the Supreme Court made a grave mistake. It chose not to intervene and overrule a case from the Ninth Circuit Court of Appeals called Tingley v. Ferguson. This case ruled in favor of a Washington state law prohibiting “conversion therapy” for minors. The law, Senate Bill 5722, defined conversion therapy as any “therapeutic practices and psychological interventions that seek to change a person’s sexual orientation or gender identity.”

When you mention conversion therapy, most people think of antiquated, barbaric, and discredited therapeutic techniques like aversion (shock) therapy or the coercive, repressive, and shaming techniques that are still happening in some unlicensed “Christian” residential programs. If the law banned obviously harmful and dangerous practices like these, no one would object. Because today, as even proponents of conversion therapy bans admit, such practices either died out long ago or are not regulated by mental health licensing laws in the first place. Very few therapists, even Christian therapists, seek to change sexual orientation anymore. 

The problem is that the law is vague and overbroad, causing it to infringe not only on client self-determination but also on the Free Speech Clause of the First Amendment and America’s broad tradition of religious liberty. The next sentence in the Washington law is especially problematic, which states that the definition of ‘conversion therapy’ includes “efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex” (emphasis added). The Washington law effectively states that therapists must affirm whatever behaviors or gender expressions the client currently engages in, even if the client themselves may want to stop. If the therapist helps the client stop a behavior or reduce the intensity of their conflicted feelings, they will face discipline. Twenty other states have enacted similar bans on “conversion therapy,” defined in an overbroad way.

The plaintiff in the Washington case, Brian Tingley, is a Christian therapist who “faces fines of up to $5,000 per violation, suspension from practice, and losing his license and livelihood” (Alliance Defending Freedom). The Court “[rejected] Tingley’s free speech challenge” and dismissed his free-exercise concerns. The Supreme Court had the opportunity to decide if there should be religious exemptions for so-called conversion therapy specifically for professional therapists, and they chose not to, at least for now. As Justice Thomas said in his dissenting opinion, “[They] should have.”

The Bill of Rights states that “Congress shall make no law… abridging the freedom of speech.” Most bans on “conversion therapy” violate the freedom of speech by defining conversion therapy so broadly. In another Supreme Court case, 303 Creative LLC v. Elenis (2023), a website designer did not want to be forced to design websites for gay weddings. The Supreme Court ruled that the creation of websites is “pure speech” (communication through written or spoken words), and forcing her to say something she did not believe in violated the core of freedom of speech. Because almost all therapy is done through verbal dialogue, not allowing a therapist to speak with a client about homosexuality in a non-affirming way is also a direct violation of free speech.

The opposing argument was that the bans do not violate free speech because they prohibit “conduct,” and the kind of speech therapists engage in is a form of conduct that can be regulated by the state. However, in NIFLA v. Becerra, decided in 2018, the Supreme Court said that “this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’” And as Justice Thomas stated, quoting a similar case out of Florida, “If speaking to clients is not speech, the world is truly upside down.”

The Tingley case also undermines our country’s history of protecting freedom of conscience and religious pluralism. Though America has often fallen short of our ideals, our history includes a robust tradition of accommodating religious differences. During the Revolutionary War, the Quakers, for religious reasons, did not want to fight, and they were granted religious exemptions in many colonies. This exception survives today under the rubric of “conscientious objectors.” Our tradition of allowing religious liberty for all permits a variety of beliefs to coexist without requiring conformity to any specific religious belief. Courts and legislators should protect religiously motivated counselors and their beliefs from being trampled under the excuse of ridding the country of homophobia.

Washington argued that the government has a compelling interest in protecting homosexual minors from harm by clearly dangerous practices. If this was their real motivation, they could easily have defined conversion therapy more narrowly and more specifically. By upholding such a broad definition, the Ninth Circuit and the Supreme Court are penalizing religious beliefs held by professional therapists who do not want to affirm homosexual behavior. This is the opposite of religious freedom in which such differences are allowed, and matters of belief and conscience may not be compelled.

The fundamental disagreement is over what constitutes “harm” in this context. It is argued that therapists occupy a position of power relative to their clients, many of whom are in an emotionally vulnerable state. Many therapists believe that anything less than full acceptance of LGBT+ identities and behaviors is harmful, even if the clients themselves do not want affirmation. Within this perspective, the person is defined (in significant part) by their experienced sexual desires and gender identity. Any accommodation of traditional views about sexuality or gender is harmful because it could prevent people from living authentically according to their “true selves.” 

But as Carl Trueman and others have shown, this understanding of the “true self” is a relatively recent invention. It is not obviously true, as many of its supporters suggest. Reasonable people of good will can disagree about the extent to which certain desires or experiences should inform our understanding of who we are and how we should live.

Even recent legislation and court decisions by Democrats and Democratic-appointed judges clearly show that traditional views about sexuality and marriage need not be based in ignorance or bigotry. In Obergefell v. Hodges (2015), the case that required all states to recognize same-sex marriages, the Court stated that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.” Further, Congress recently passed the Respect for Marriage Act. This law provided federal recognition of state-sanctioned same-sex marriage while also recognizing that “diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises.” This clearly includes believers in traditional marriage. Professional counselors who do not abuse their clients physically or psychologically and instead help them reconcile their religious and moral values with their sexuality should be allowed to help such individuals, even if they are minors. It should not be criminal to disagree with LGBTQ-affirming beliefs or for clients to seek therapeutic support in reconciling their faith with their attractions. LGBTQ individuals who want therapy that affirms their identity and behavior should be able to find it. 

Too often, we make this more complicated than it needs to be. LGBT+ individuals who want therapy that affirms their identity and behavior should be able to find it. LGBT+ individuals who want therapy that affirms other aspects of their identity, such as their religious faith, should also be able to find it. Instead, the course chosen by the Ninth Circuit Court of Appeals holds, in the words of Justice Thomas, that “expressing any other message [besides LGBT+ affirmation] is forbidden—even if the counselor’s clients ask for help to accept their biological sex.” Why should individuals not be able to access the therapy they actually want?

However, it does not seem that this issue will be resolved anytime soon. In a more recent case in Michigan, Catholic Charities v. Whitmer, a Catholic woman challenged a Michigan law that requires therapists to affirm their client’s sexual orientation and gender identity. If therapists do not comply, they face a large fine and the revocation of their license. This issue is also not only a governmental issue. Therapists also face pressure from state licensing boards. In Arizona, for example, “conversion therapy” is not banned by the state legislature, but the state licensing board considers it “unprofessional conduct,” which can lead to a therapist’s license being revoked.  

Though the Supreme Court declined to hear Tingley v. Ferguson, the Court should take the next available opportunity to rule on this important issue. Therapists and clients should be free to discuss issues related to gender identity and sexual orientation without fearing punishment from the state. Whereas it was once the case that homosexuals were treated as sick and subjected to dubious “treatments,” the pendulum has swung too far in the other direction. Those who wish to live a traditional moral code have largely been abandoned by therapists, legislatures, and now even the Supreme Court of the United States. Freedom to explore these issues should not mean the empty freedom to agree with the government. For years, gay activists demanded that the government “get out of our bedroom.” Government should also get out of the therapy room.

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