Tingley v. Ferguson 9CA Decision

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Case: 21-35815, 09/06/2022, ID: 12533380, DktEntry: 81-1, Page 1 of 66
FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
BRIAN TINGLEY, No. 21-35815

Plaintiff-Appellant,
D.C. No.
v. 3:21-cv-05359-
RJB
ROBERT W. FERGUSON, in his
official capacity as Attorney General
for the State of Washington; UMAIR
A. SHAH, in his official capacity as
Secretary of Health for the State of
Washington; KRISTIN PETERSON, in
her official capacity as Assistant
Secretary of the Health Systems
Quality Assurance division of the
Washington State Department of
Health,
Defendants-Appellees,
EQUAL RIGHTS WASHINGTON,

Intervenor-Defendant-Appellee.
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2 TINGLEY V. FERGUSON
BRIAN TINGLEY, No. 21-35856

Plaintiff-Appellee,
D.C. No.
v. 3:21-cv-05359-
RJB
ROBERT W. FERGUSON, in his
official capacity as Attorney General
for the State of Washington; UMAIR OPINION
A. SHAH, in his official capacity as
Secretary of Health for the State of
Washington; KRISTIN PETERSON, in
her official capacity as Assistant
Secretary of the Health Systems
Quality Assurance division of the
Washington State Department of
Health,
Defendants-Appellants,
and
EQUAL RIGHTS WASHINGTON,

Intervenor-Defendant.
Appeal from the United States District Court

for the Western District of Washington
Robert J. Bryan, District Judge, Presiding
Argued and Submitted May 17, 2022

Seattle, Washington
Filed September 6, 2022

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TINGLEY V. FERGUSON 3
Before: Kim McLane Wardlaw, Ronald M. Gould, and

Mark J. Bennett, Circuit Judges.
Opinion by Judge Gould;

Concurrence by Judge Bennett
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal of an

action challenging a Washington state licensing scheme that
disciplines health care providers for practicing conversion
therapy on minors.
Conversion therapy encompasses therapeutic practices

and psychological interventions that seek to change a
person’s sexual orientation or gender identity. Plaintiff
Brian Tingley, a licensed marriage and family therapist,
alleged that Washington’s ban on practicing conversion
therapy on minors violated his free speech and free exercise
rights under the First Amendment, as well as those of his
clients, and that the law was unconstitutionally vague under
the Fourteenth Amendment.
The panel held that Tingley had standing to bring his

claims in an individual capacity and the claims were
prudentially ripe. Tingley’s complaint showed a plan or
desire to violate Washington’s law; Washington confirmed
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
(4 of 73)
that it will enforce the ban on conversion therapy “as it

enforces other restrictions on unprofessional conduct;” and
Tingley alleged that the law had chilled his speech and that
he has self-censored himself out of fear of enforcement.
Tingley did not, however, have standing to bring claims on
behalf of his minor clients. Without more detail about his
current clients an opinion adjudicating the alleged rights of
these third parties would be plainly advisory.
Addressing the merits, the panel stated that in 2014, this

court upheld a substantially similar law enacted by
California that subjected its state-licensed mental health
providers to discipline for practicing conversion therapy on
minor clients. Pickup v. Brown, 740 F.3d 1208 (9th Cir.
2014). In Pickup, the court concluded that California’s
regulation of conversion therapy treatment was a regulation
of conduct and that any effect it may have on free speech
interests was merely incidental. The panel held that the
Supreme Court’s intervening decision in National Institute
of Family & Life Advocates v. Becerra, 138 S. Ct. 2361
(2018) (“NIFLA”), did not require the court to abandon the
analysis in Pickup insofar as it related to conduct. Because
NIFLA abrogated only the part of Pickup relating to the
professional speech doctrine, and not its central holding that
California’s conversion therapy law was a regulation on
conduct that incidentally burdened speech, Pickup remained
binding law and controlled the outcome of this case.
The panel held that Washington’s licensing scheme for

health care providers did not violate the First or Fourteenth
Amendments. 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.
The Washington legislature acted rationally when it decided
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to protect the “physical and psychological well-being” of its

minors by preventing state-licensed health care providers
from practicing conversion therapy on them.
In addition to being supported by circuit precedent, the

decision to uphold Washington’s law was confirmed further
by its place within the well-established tradition of
constitutional regulations on the practice of medical
treatments. There is a long (if heretofore unrecognized)
tradition of regulation governing the practice of those who
provide health care within state borders. Washington’s law
not only fell within the tradition of state regulation of the
health professions, but it also affected the health of
children—a vulnerable group in the eyes of the law.
Affirming the dismissal of Tingley’s challenge under the

Free Exercise Clause of the First Amendment, the panel held
that the law was a neutral law targeted at preventing the
harms associated with conversion therapy, and not at the
religious exercise of those who wish to practice this type of
therapy on minors.
Finally, Washington’s law was not unconstitutionally

vague. By its terms, the law gave fair notice of what conduct
was proscribed to a reasonable person, and certainly to a
license-holding provider with the specialized, technical
knowledge of the psychology profession; and contained
standards limiting the discretion of those who will enforce
it.
Concurring in part, Judge Bennett joined the majority

opinion except as to Part III pertaining to the tradition of
treatments. Judge Bennett stated that the court should not
hypothesize with dicta when the conclusion is commanded
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by binding precedent. As the panel held in Part II of the

discussion section, it was bound by Pickup as to Tingley’s
free speech claim. Part III was therefore unnecessary,
including its discussion of the “long (if heretofore
unrecognized) tradition of regulation governing the practice
of those who provide health care within state borders”—an
attempt to meet NIFLA’s exception for a category of speech
warranting lesser scrutiny.
COUNSEL
Roger G. Brooks (argued), Alliance Defending Freedom,

Scottsdale, Arizona; Kristen K. Waggoner and John J.
Bursch, Alliance Defending Freedom, Washington, D.C.;
David A. Cortman, Alliance Defending Freedom,
Lawrenceville, Georgia; Cody S. Barnett, Alliance
Defending Freedom, Lansdowne, Virginia; Gregory D. Esau
and Ellis Li McKinstry, Seattle, Washington; for Plaintiff-
Appellant/Cross-Appellee.
Cristina Sepe (argued), Jeffrey C. Grant, and Sierra

McWilliams, Assistant Attorneys General; Kristin Beneski,
First Assistant Attorney General; Robert W. Ferguson,
Attorney General; Office of the Attorney General, Seattle,
Washington; for Defendants-Appellees/Cross-Appellants.
Raegen Rasnic, Skellenger Bender P.S., Seattle,

Washington; Shannon Minter and Christopher Stoll,
National Center for Lesbian Rights, San Francisco,
California; for Intervenor-Defendant-Appellee.
Deborah J. Dewart, Hubert, North Carolina, for Amicus

Curiae Institute for Faith and Family.
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Charles LiMandri, Paul M. Jonna, and Jeffrey M. Trissell,

LiMandri & Jonna LLP, Rancho Santa Fe, California;
Thomas Brejcha and Peter Breen, Thomas More Society,
Chicago, Illinois; for Amicus Curiae Ethics and Public
Policy Center.
Paul M. Sherman, Institute for Justice, Arlington, Virginia,

for Amicus Curiae Institute for Justice.
Shireen A. Barday, Gibson Dunn & Crutcher LLP, New

York, New York; Isaac Ruiz, Ruiz & Smart PLLC, Seattle,
Washington; J. Denise Diskin, QLaw Foundation of
Washington, Seattle, Washington; for Amici Curiae The
Trevor Project Inc., American Foundation for Suicide
Prevention, and American Association of Suicidology.
Tassity Johson, Jessica Ring Amunson, and Jessica

Sawadogo, Jenner & Block LLP, Washington, D.C.;
Nathalie F.P. Gilfoyle and Deanne M. Ottaviano, American
Psychologial Association, Washington, D.C.; for Amicus
Curiae American Psychologial Association.
Daniel J. Shih, Susman Godfrey LLP, Seattle, Washington;

Yvonne Chin, Julia Mizutani, Antoinette Davis, Nancy
Talner, and Justin Abbasi, ACLU of Washington
Foundation, Seattle, Washington; for Amici Curiae
American Civil Liberties Union of Washington and Other
Organizations.
Paul F. Rugani, Orrick Herrington & Sutcliffe LLP, Seattle,

Washington, for Amici Curiae Fred T. Korematsu Center for
Law and Equality; Aoki Center for Critical Race and Nation
Studies; Center on Race, Inequality, and the Law at New
York University School of Law; and Loyola Law School
Anti-Racism Center.
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Sean M. SeLegue, Arnold & Porter Kaye Scholer LLP, San

Francisco, California, for Amicus Curiae First Amendment
Scholars.
OPINION
GOULD, Circuit Judge:
This appeal requires us to decide, again, whether a state

may prohibit health care providers operating under a state
license from practicing conversion therapy on children.
Twenty states and the District of Columbia have laws
prohibiting or restricting the practice of conversion therapy,
which seeks to change an individual’s sexual orientation or
gender identity. This appeal concerns Washington’s law that
subjects licensed health care providers to discipline if they
practice conversion therapy on patients under 18 years of
age.
In 2014, we upheld a substantially similar law enacted

by California that subjects its state-licensed mental health
providers to discipline for practicing conversion therapy on
minor clients. Pickup v. Brown, 740 F.3d 1208 (9th Cir.
2014). Finding itself bound by Pickup, the district court in
this case dismissed Plaintiff Brian Tingley’s challenge to
Washington’s nearly identical law.
We affirm. Washington’s licensing scheme for health

care providers, which disciplines them for practicing
conversion therapy on minors, does not violate the First or
Fourteenth Amendments. 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.
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BACKGROUND
Conversion therapy encompasses therapeutic practices

and psychological interventions that seek to change a
person’s sexual orientation or gender identity. The goal is to
change an individual’s sexual orientation from gay to
heterosexual or to change an individual’s gender identity
from transgender to cisgender. Within the field of
psychology, conversion therapy is also known as “reparative
therapy” or “sexual orientation and gender identity change
efforts” (“SOGICE”). 1 Conversion therapy developed in the
mid-nineteenth century to “cure” patients of homosexual
desires and gender-nonconforming behaviors, which were
viewed at that time as mental illnesses. Such views, once
held by professional organizations in the psychology and
psychiatric fields, have evolved with time and research.
The American Psychological Association (“APA”)

removed homosexuality from the Diagnostic and Statistical
Manual of Mental Disorders in 1973, and it now views
gender nonconforming behaviors as “gender dysphoria,”
rather than as a “gender identity disorder.” The APA has
twice conducted a systematic review of the research on
conversion therapy and adopted a resolution that conversion
therapy “puts individuals at a significant risk of harm” and
is not effective in changing a person’s gender identity or
sexual orientation. The APA opposes conversion therapy
“in any stage of the education of psychologists” and instead
“encourages psychologists to use an affirming,
multicultural, and evidence-based approach” that includes
1
Because the text of the Washington law uses “conversion therapy,”
that is the term we use in this opinion.
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“acceptance, support, . . . and identity exploration and

development, within a culturally competent framework.” As
of 2015, every major medical, psychiatric, psychological,
and professional mental health organization opposes the use
of conversion therapy.
II
Washington requires health care providers to be licensed

before they may practice in Washington. See Wash. Rev.
Code § 18.122.030(2). Title 18 of the Revised Code of
Washington regulates business and professions, and Chapter
130 of Title 18, Washington’s “Uniform Disciplinary Act,” 2
lists actions that are considered “unprofessional conduct” for
licensed health care providers and subjects them to
disciplinary action. Id. §§ 18.130.180, 18.130.160.
Therapists, counselors, and social workers who “work under
the auspices of a religious denomination, church, or religious
organization” are exempted from the Chapter’s
requirements. Id. § 18.225.030(4).
Washington enacted Senate Bill 5722 (“SB 5722”) in

2018, which added “[p]erforming conversion therapy on a
patient under age eighteen” to the list of unprofessional
conduct in the Uniform Disciplinary Act for licensed health
care providers. S.B. 5722, 65th Leg., Reg. Sess. (Wash.
2018), codified at Wash. Rev. Code §§ 18.130.020(4) and
18.130.180(27). SB 5722 defined conversion therapy:
(a) “Conversion therapy” means a regime

that seeks to change an individual’s
2
The Uniform Disciplinary Act “governs unlicensed practice, the
issuance and denial of licensure, and the discipline of persons licensed
under this chapter.” Wash. Rev. Code § 18.225.080.
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sexual orientation or gender identity. The

term 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. The term includes, but is not limited
to, practices commonly referred to as
“reparative therapy.”
(b) “Conversion therapy” does not include

counseling or psychotherapies that
provide acceptance, support, and
understanding of clients or the facilitation
of clients’ coping, social support, and
identity exploration and development that
do not seek to change sexual orientation
or gender identity.
Wash. Rev. Code § 18.130.020(4)(a)–(b). The legislature

expressly specified that SB 5722 may not be applied to
(1) speech by licensed health care providers that “does not
constitute performing conversion therapy,” (2) “[r]eligious
practices or counseling under the auspices of a religious
denomination, church, or organization that do not constitute
performing conversion therapy by licensed health care
providers,” and (3) “[n]onlicensed counselors acting under
the auspices of a religious denomination, church, or
organization.” 2018 Wash. Sess. Laws, ch. 300, § 2.
The legislature’s asserted intent in enacting SB 5722 was

to regulate “the professional conduct of licensed health care
providers.” Id. § 1(1). It found that it had “a compelling
interest in protecting the physical and psychological well-
being of minors, including lesbian, gay, bisexual, and
transgender youth, and in protecting its minors against
exposure to serious harms caused by conversion therapy.”
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Id. § 1(2). Health Impact Review of SB 5722, a report from

the Washington State Board of Health, accompanied SB
5722 and was presented to the Legislature. Reviewing the
available research on conversion therapy, the report found
that “conversion therapy is associated with negative health
outcomes such as depression, self-stigma, cognitive and
emotional dissonance, emotional distress, and negative self-
image.”
Washington’s law does not prevent health care providers

from communicating with the public about conversion
therapy; expressing their personal views to patients
(including minors) about conversion therapy, sexual
orientation, or gender identity; practicing conversion therapy
on patients over 18 years old; or referring minors seeking
conversion therapy to counselors practicing “under the
auspices of a religious organization” or health providers in
other states.
III
Tingley has worked as a licensed marriage and family

therapist for more than twenty years. Although he does not
work “under the auspices of a religious denomination,”
Wash. Rev. Code § 18.225.030(4), his Christian views
inform his work. Tingley believes that the sex each person
is assigned at birth is “a gift of God” that should not be
changed and trumps an individual’s “feelings,
determinations, or wishes.” He also believes that “sexual
relationships are beautiful and healthy” but only if they
occur “between one man and one woman committed to each
other through marriage.” Tingley claims that many of his
clients share his religious viewpoints and come to him
specifically because he holds himself out as a “Christian
provider[].”
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Tingley sued state officials (“Washington”) in May

2021, seeking to enjoin SB 5722. He alleged that
Washington’s ban on practicing conversion therapy on
minors violates his free speech and free exercise rights under
the First Amendment, as well as those of his clients, and that
the law is unconstitutionally vague under the Fourteenth
Amendment. Equal Rights Washington (“ERW”), the lead
organization supporting SB 5722’s passage, intervened as a
defendant. Tingley sought a preliminary injunction, which
Washington and ERW both opposed, and the defendants
filed motions to dismiss his complaint.
The district court granted Washington’s motion to

dismiss. The district court first held that Tingley had
standing to bring claims in his individual capacity but that
he lacked standing to bring claims on behalf of his minor
clients. As to the merits, the district court recognized that
Washington’s motion to dismiss hinged squarely upon
whether our decision in Pickup v. Brown remained good law.
Concluding that Pickup remained controlling, the district
court applied Pickup to reject Tingley’s constitutional
claims.
Tingley appealed, and Washington and ERW cross-

appealed, contending that the district court erred in holding
that Tingley had standing. We have jurisdiction under
28 U.S.C. § 1291 and affirm the district court’s dismissal of
Tingley’s complaint.
STANDARD OF REVIEW
We review de novo questions of standing and ripeness.

Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1093
(9th Cir. 2003). We also review de novo the district court’s
dismissal for failure to state a claim, crediting all factual
allegations in the complaint as true and construing the
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pleadings in the light most favorable to Tingley, the non-

moving party. Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d
1028, 1029–30 (9th Cir. 2009). Dismissal is proper “if there
is a ‘lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal theory.’”
Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th
Cir. 2011) (citation omitted).
We review for abuse of discretion a district court’s

decision to deny a preliminary injunction. Pimentel v.
Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012).
DISCUSSION
Tingley has standing to bring his claims in an individual

capacity but does not have standing to bring claims on behalf
of his minor clients. Because Article III limits our
jurisdiction to cases and controversies, the “irreducible
constitutional minimum of standing” requires a plaintiff to
have suffered an injury in fact, caused by the defendant’s
conduct, that can be redressed by a favorable result. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). At
the motion to dismiss stage, “general factual allegations of
injury” suffice to meet the plaintiff’s burden. Id. at 561.
Where, as here, the plaintiff alleges a future injury, the
threatened injury must be “certainly impending” or there
must be a “substantial risk” of the harm occurring. Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citation
omitted).
Washington contends that the district court improperly

relaxed the standing inquiry because Tingley brought First
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Amendment claims. But the district court did not err on

standing. The “unique standing considerations” in the First
Amendment context “tilt dramatically toward a finding of
standing” when a plaintiff brings a pre-enforcement
challenge. Lopez v. Candaele, 630 F.3d 775, 781 (9th Cir.
2010) (cleaned up). “[T]he Supreme Court has dispensed
with rigid standing requirements” for First Amendment
protected speech claims and has instead endorsed a “hold
your tongue and challenge now” approach. Cal. Pro-Life
Council, 328 F.3d at 1094 (citation omitted). We have held
that “a chilling of the exercise of First Amendment rights is,
itself, a constitutionally sufficient injury.” Libertarian Party
of Los Angeles Cnty. v. Bowen, 709 F.3d 867, 870 (9th Cir.
2013). Washington argues that the district court erred in
applying a relaxed standing analysis “to First Amendment
claims given its correct conclusion that the First Amendment
does not apply to Tingley’s claims” and that under our
precedent, “there is no viable argument that such conduct is
protected by the First Amendment.” Tingley’s standing to
bring First Amendment claims, however, “in no way
depends on the merits” of those claims. See Arizona v.
Yellen, 34 F.4th 841, 849 (9th Cir. 2022) (quoting Warth v.
Seldin, 422 U.S. 490, 500 (1975)). The district court
followed the law as declared by the Supreme Court and did
not improperly relax the standing inquiry.
Washington also contends that Tingley does not have

standing to bring a facial challenge to the constitutionality of
a law not yet enforced against him. A “recurring issue” for
federal courts is determining when the threat of enforcement
creates a sufficient injury for a party to have standing to
bring a pre-enforcement challenge to a law. Driehaus,
573 U.S. at 158. Driehaus set the general standard for pre-
enforcement standing: a plaintiff must allege “an intention
to engage in a course of conduct arguably affected with a
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constitutional interest, but proscribed by a statute, and there

exists a credible threat of prosecution thereunder.” Id. at 159
(quoting Babbitt v. Farm Workers, 442 U.S. 289, 298
(1979)).
We rely on a three-factor inquiry to help determine

whether a threat of enforcement is genuine enough to confer
an Article III injury. We consider (1) whether the plaintiff
has a “concrete plan” to violate the law, (2) whether the
enforcement authorities have “communicated a specific
warning or threat to initiate proceedings,” and (3) whether
there is a “history of past prosecution or enforcement.”
Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,
1139 (9th Cir. 2000) (en banc). “Neither the mere existence
of a proscriptive statute nor a generalized threat of
prosecution” satisfies this test. Id.
The first factor is satisfied by Tingley’s complaint. It

specifically alleged Tingley’s past work with clients and
expectations for future work with clients that show a plan or
desire to violate Washington’s law. Tingley claims that he
has worked with several minors in recent years who have
“sought his help in reducing same-sex attractions,” and
others “who have expressed discomfort with their biological
sex.” He details a few examples. In one instance, “parents
brought to [Tingley’s] clinic their teenage minor daughter
who had . . . begun expressing unhappiness with her female
gender identity, and . . . asserting a male gender identity.”
The parents sought a counselor who would “hopefully
enable her to return to comfort with her female body.” The
client, after a few sessions with Tingley, “expressed a desire
to become more comfortable with her biological sex,” and
Tingley “worked with her toward that goal.”
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In another example, Tingley described working with a

teen who sought his help with “unwanted same-sex
attractions” and “attraction to pornography.” Tingley
“supports this client as he works toward the change he
desires to see in his own life.” Given Tingley’s “visible
identity as a licensed counselor who is a Christian,” Tingley
expects that “parents and minors will continue to come to
him for counseling with a goal of” helping children “return
to comfort with a gender identity aligned with [their]
biological sex” or lessen same-sex attractions. Tingley
“currently works with and will continue to work with clients
to these ends.”
Relying upon our language in Thomas, Washington

asserts that Tingley has failed to specify “when, to whom,
where, or under what circumstances” he plans to violate the
law. 220 F.3d at 1139. But we do not require plaintiffs to
specify “when, to whom, where, or under what
circumstances” they plan to violate the law when they have
already violated the law in the past. See, e.g., Oklevueha
Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829,
836 (9th Cir. 2012) (explaining that “plaintiffs had more than
a concrete plan to violate the laws at issue because they
actually did violate them on a number of occasions”)
(internal quotation marks and citations omitted). In
Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009), we
determined that pharmacists challenging state rules
requiring them to sell Plan B emergency contraceptives
could not “control when a patient requesting Plan B will visit
their pharmacy” but nevertheless satisfied Article III’s
requirements because they “can point to specific past
instances when they have refused to sell Plan B” as “direct
violations of the challenged rules.” Id. at 1123. Similarly,
Tingley cannot control when clients will come to him for
help changing their sexual orientation or gender identity, but
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his complaint describes “specific past instances” of working

with minors in a way that would violate the law.
The second prong of the Thomas inquiry into the

credibility of the threat of enforcement is whether the
authorities in charge of enforcing the challenged law “have
communicated a specific warning or threat to initiate
proceedings.” 220 F.3d at 1139. Washington has not issued
a warning or threat of enforcement to Tingley. We have,
however, interpreted the government’s failure to disavow
enforcement of the law as weighing in favor of standing.
See, e.g., Cal. Trucking Ass’n v. Bonta, 996 F.3d 644, 653
(9th Cir. 2021) (explaining that “the state’s refusal to
disavow enforcement of [the challenged law] against motor
carriers during this litigation is strong evidence that the state
intends to enforce the law and that [plaintiffs] face a credible
threat” of enforcement). Washington has not disavowed
enforcement and instead has confirmed that it will enforce
the ban on conversion therapy “as it enforces other
restrictions on unprofessional conduct.”
And in the context of pre-enforcement challenges to laws

on First Amendment grounds, a plaintiff “need only
demonstrate that a threat of potential enforcement will cause
him to self-censor.” Protectmarriage.com-Yes on 8 v.
Bowen, 752 F.3d 827, 839 (9th Cir. 2014). Tingley has
alleged that the law has chilled his speech and that he has
self-censored himself out of fear of enforcement. He claims
to be unable “to freely and without fear speak what he
believes to be true” and contends that his conversations with
new clients are “more guarded and cautious” and that he is
afraid to “publiciz[e] . . . that he offers to counsel minors on
these issues.” Washington’s general warning of
enforcement coupled with Tingley’s self-censorship in the
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face of the law satisfy the second prong of the Thomas

inquiry for standing.
The third factor, concerning the history of enforcement,

carries “‘little weight’ when the challenged law is ‘relatively
new’ and the record contains little information as to
enforcement.” Cal. Trucking, 996 F.3d at 653 (quoting
Wolfson v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010)).
SB 5722 was enacted in 2018, and Washington apprised us
before argument that it had just received its first complaint
alleging that a licensed mental health provider performed
conversion therapy on minors. The sparse enforcement
history weighs against standing but “is not dispositive.”
Libertarian Party, 709 F.3d at 872; see also Italian Colors
Rest. v. Becerra, 878 F.3d 1165, 1174 (9th Cir. 2018);
Wolfson, 616 F.3d at 1060. Because the first two factors are
satisfied by the “general factual allegations of injury”
contained in Tingley’s complaint, which we must take to be
true at this early juncture, we hold that Tingley has standing
to bring the First and Fourth Amendment challenges to
SB 5722 on behalf of himself.
Tingley does not, however, have standing to bring claims

on behalf of his minor clients. The ordinary rule of standing
is that a party “must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or
interests of third parties.” Warth, 422 U.S. at 499. Courts
may allow plaintiffs to assert the rights of third parties in
cases where the rights of those parties would be indirectly
violated if the challenged law is enforced against the
plaintiff. June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103,
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2118–19 (2020), overruled on other grounds by Dobbs v.

Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
Plaintiffs must satisfy two additional elements to

establish third-party standing. First, a plaintiff must have a
“‘close’ relationship” to the third parties whose rights he
claims will be indirectly violated by the law. Kowalski v.
Tesmer, 543 U.S. 125, 130 (2004) (quoting Powers v. Ohio,
499 U.S. 400, 411 (1991)). Second, a plaintiff must show
that the third parties are hindered from protecting their own
interests by bringing a lawsuit of their own. Id.
Tingley has alleged a sufficiently close relationship with

his current clients to meet this standard. But Tingley makes
generalized statements about the rights of his clients that are
purportedly violated by this law, claiming that the law denies
clients “access to ideas that they wish to hear, and to
counseling that is consistent with their own personal faith,
life goals and motivations.” Tingley does not explain how a
law that allows minors to seek conversion therapy from
counselors practicing under the “auspices of a religious
denomination,” Wash. Rev. Code § 18.225.030(4), denies
his clients “access to ideas that they wish to hear, and to
counseling that is consistent with their own personal faith.”
Without more detail about his current clients, their desired
information, or how the law has specifically deprived them
of access to this information, an opinion adjudicating the
alleged rights of these third parties would be plainly
advisory. See United Pub. Workers v. Mitchell, 330 U.S. 75,
89, (1947).
Further, Tingley’s allegations of the asserted hindrances

his clients face in bringing their own claims are speculative.
Minors seeking conversion therapy have brought their own
lawsuits challenging conversion therapy bans in other states.
See, e.g., Pickup, 740 F.3d at 1224; Doe v. Christie, 33 F.
(21 of 73)
Supp. 3d 518 (D.N.J. 2014), aff’d, 783 F.3d 150 (3d Cir.
2015) (citation omitted). Pseudonymous filing would be
appropriate in this context to “preserve privacy in a matter
of sensitive and highly personal nature.” Does I thru XXIII
v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir.
2000). Tingley does not engage with why pseudonymous
filing would not ease the alleged stigma and emotional
hardship he claims is preventing his clients from being able
to assert their own rights, or why his minor clients are
different from those in other states who brought their own
lawsuits.
Tingley emphasizes that the bar to third-party standing is

lowered in the First Amendment context. While this is true,
it is because “‘society’s interest in having the statute
challenged’ may outweigh the prudential considerations that
normally counsel against third-party standing.” Mothershed
v. Justices of the Supreme Court, 410 F.3d 602, 610 (9th Cir.
2005) (quoting Sec’y of State v. Joseph H. Munson Co.,
467 U.S. 947, 956 (1984)). Because we conclude that
Tingley has standing to bring claims in his individual
capacity, this societal interest is already met. We will not
strain the limitations imposed on us by Article III to reach
undeveloped claims brought on behalf of third-party minors.
Washington claims that Tingley’s lawsuit is also

nonjusticiable because his claims are prudentially unripe.
The two guiding considerations for prudential ripeness are
“the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration.”
Thomas, 220 F.3d at 1141 (quoting Abbott Labs. v. Gardner,
387 U.S. 136, 149 (1967)). Both are satisfied here.
(22 of 73)
The fitness prong is met when “the issues raised are

primarily legal, do not require further factual development,
and the challenged action is final.” Stormans, 586 F.3d
at 1126 (citation omitted). We consider whether the action
“has a direct and immediate effect on the complaining
parties; whether the action has the status of law; and whether
the action requires immediate compliance with its terms.”
Id. (citation omitted). Here, the law Tingley challenges is
final, with the “status of law.” Id. The law represents
Washington’s final decision with respect to prohibiting
licensed health care providers from performing conversion
therapy on minors, and it is binding on providers like
Tingley who must immediately comply with its terms. The
issues Tingley raises with respect to the law are purely legal,
on First and Fourteenth Amendment grounds. See Driehaus,
573 U.S. 167.
Of course, bringing a First Amendment challenge to a

law does not necessarily mean that the issues presented are
“purely legal.” Thomas, 220 F.3d at 1142. Although the
plaintiffs in Thomas challenged a law on First Amendment
grounds, we held that the challenge did not present “purely
legal” issues because the claim “rest[ed] upon hypothetical
situations with hypothetical tenants” and was “devoid of any
specific factual context.” 220 F.3d at 1141–42. Tingley’s
claims concerning future clients rest upon hypothetical
situations with hypothetical clients, but he also described the
current clients who he “continues to work with to these
ends.” Tingley has provided enough of a specific factual
context for the legal issues he raises, and his claims do not
leave “incomplete hypotheticals or open factual questions
akin to those in Thomas.” Stormans, 586 F.3d at 1126.
Evaluating whether withholding judicial review presents

a hardship requires looking at whether the challenged law
(23 of 73)
“requires an immediate and significant change in the

plaintiffs’ conduct of their affairs with serious penalties
attached to noncompliance.” Id. (citation omitted). Tingley
claims that SB 5722 required an “immediate and significant
change” in his conduct, forcing him to choose between
refraining from desired speech or engaging in that speech
and risking costly sanctions. And the law imposes “serious
penalties,” upon therapists who do not comply: fines up to
$5,000 for each violation, censure, probation, suspension
from practice, or even revocation of their license to practice.
See Wash. Rev. Code § 18.130.160. Washington’s
contention that Tingley is not actually forced to choose
between refraining from protected speech or risking
enforcement because the law regulates his conduct, not his
speech, again invites us to peek impermissibly at the merits
in determining questions of justiciability. Twitter, Inc. v.
Paxton, 26 F.4th 1119, 1124 (9th Cir. 2022) (“Prudential
ripeness is a non-merits threshold issue.”). Satisfying both
prongs of our ripeness inquiry, the claims Tingley brings on
behalf of himself are prudentially ripe.
II
After holding that Tingley’s claims are justiciable, we

now consider the merits of his claims. We begin by
analyzing Tingley’s primary challenge to Washington’s law:
that it violates his right to free speech by regulating what he,
as a licensed health care provider in Washington, can say and
do to minor clients within the confines of the counselor-
client relationship.
On this question, we do not write on a clean slate. In our

2014 decision in Pickup v. Brown, we upheld a nearly
identical law enacted by California that prohibited licensed
mental health providers from performing any “sexual
orientation change efforts” on minors. 740 F.3d at 1221.
(24 of 73)
Our full court declined to rehear the case en banc. Id.

at 1214. Accordingly, resolving Tingley’s free speech
challenge appears straightforward. But Tingley claims that
the Supreme Court’s intervening decision in National
Institute of Family & Life Advocates v. Becerra, 138 S. Ct.
2361 (2018) (“NIFLA”), abrogated Pickup to the point that
it is no longer binding on us.
We proceed to analyze Tingley’s free speech challenge

in several steps. We first compare Washington’s law
banning conversion therapy to California’s law in Pickup.
The two laws are nearly identical. We then examine our
decision in Pickup and whether we are bound by it. We are.
Because Tingley, in his briefing, attempts to distinguish

the law we examined in Pickup from the one he challenges
here, we compare the two laws. Both Washington and
California amended their code of professional conduct for
licensed mental health providers to specify that practicing
conversion therapy on minors would be considered
unprofessional conduct subject to discipline. California
prohibited “[a]ny sexual orientation change efforts
attempted on a patient under 18 years of age,” Cal. Bus. &
Prof. Code § 865.2, while Washington prohibited
“[p]erforming conversion therapy on a patient under age
eighteen,” Wash. Rev. Code § 18.130.180(27). Washington
and California use substantially similar language to describe
what conduct is encompassed by their respective laws:
[A]ny practices by mental health providers

that seek to change an individual’s sexual
orientation. This includes efforts to change
behaviors or gender expressions, or to
eliminate or reduce sexual or romantic
(25 of 73)
attractions or feelings toward individuals of

the same sex.
Cal. Bus. & Prof. Code § 865(b)(1).
[A] regime that seeks to change an

individual’s sexual orientation or gender
identity. The term 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.
Wash. Rev. Code § 18.130.020(4)(a). The two laws also use

almost identical language to describe what conduct is not
encompassed by their bans on conversion therapy:
[P]sychotherapies that: (A) provide

acceptance, support, and understanding of
clients or the facilitation of clients’ coping,
social support, and identity exploration and
development, including sexual orientation-
neutral interventions to prevent or address
unlawful conduct or unsafe sexual practices;
and (B) do not seek to change sexual
orientation.
Cal. Bus. & Prof. Code § 865(b)(2).
[C]ounseling or psychotherapies that provide

acceptance, support, and understanding of
clients or the facilitation of clients’ coping,
social support, and identity exploration and
development that do not seek to change
sexual orientation or gender identity.
(26 of 73)
Wash. Rev. Code § 18.130.020(4)(b). And the two

legislatures use identical language to describe their purpose
in enacting the laws: “protecting the physical and
psychological well-being of minors, including lesbian, gay,
bisexual, and transgender youth, and in protecting its minors
against exposure to serious harms caused by conversion
therapy.” 2018 Wash. Sess. Laws, ch. 300, § 1; see also
2012 Cal. Legis. Serv. ch. 835, § 1(n) (using same language
with “sexual orientation change efforts” in place of
“conversion therapy”). Tingley’s attempts to distinguish the
two laws are without merit, and are contradicted by his
concession to the district court that the two laws are
“substantively similar” and that Pickup “is binding . . . if it
is still good law.” This is the question that we next address.
Pickup involved an appeal of consolidated cases

challenging California’s licensing scheme that disciplined
mental health providers from performing any “sexual
orientation change efforts” on minors. 740 F.3d at 1221. We
looked to our earlier precedents to distill principles about
whether, and when, a state can regulate the conduct and
speech of health care providers without running afoul of the
First Amendment. We examined National Ass’n of the
Advancement of Psychoanalysis v. California Board of
Psychology, 228 F.3d 1043 (9th Cir. 2000) (“NAAP”), in
which we upheld California’s licensing scheme for mental
health providers. Id. at 1056. There, we rejected the idea
that therapists are entitled to special First Amendment
protection simply because they “employ speech to treat their
clients.” 228 F.3d at 1054. We held that while
communication during therapy “is entitled to constitutional
protection,” it is “not immune from regulation.” Id.
(27 of 73)
We also considered Conant v. Walters, 309 F.3d 629 (9th

Cir. 2002), in which we invalidated a federal policy that
allowed doctor’s licenses to be revoked if they
recommended medical marijuana to a patient. Id. at 638–39.
We distinguished prohibiting doctors from treating patients
with marijuana—which the government could do—from
prohibiting doctors from simply recommending marijuana.
Id. at 634–37. A prohibition on the latter is based on the
content and viewpoint of speech, while the former is a
regulation based on conduct. Id.
Noting that the line between conduct and speech can be

difficult to discern, we drew upon principles from NAAP and
Conant to develop a continuum approach in Pickup for
determining whether a law regulates the speech or conduct
of professionals. 740 F.3d at 1227. We held that “public
dialogue” by a professional is at one end of the continuum
and receives the greatest First Amendment protection. Id.
To illustrate, we explained that even though a state can
regulate the practice of medicine, a doctor who publicly
advocates for a position that the medical establishment
considers outside the mainstream would still receive “robust
protection” from the First Amendment. Id.
At the midpoint of the continuum is professional speech

“within the confines of a professional relationship,” which
we held, as a category, received “somewhat diminished”
protection under the First Amendment. Id. at 1228. We
provided the example of truthful informed consent
disclosures as falling into this category, as well as laws
giving rise to liability for negligent medical advice. 740 F.3d
at 1228.
At the other end of the continuum is where the regulation

of professional conduct falls. Id. at 1229. At this end, the
state’s power to regulate is “great” even though this type of
(28 of 73)
regulation “may have an incidental effect on speech.” Id.

Most medical treatments require speech, we explained, but a
state may still ban a particular treatment it finds harmful;
otherwise, any prohibition of a medical treatment would
implicate the First Amendment and unduly limit the states’
“power to regulate licensed professions.” Id.
We applied this continuum to California’s conversion

therapy law and held that it was a regulation of conduct.
Unlike the law at issue in Conant that prohibited doctors
from recommending the use of marijuana to patients,
California’s ban on practicing conversion therapy on minor
patients still allowed therapists to discuss conversion therapy
with patients, recommend that patients obtain it (from
unlicensed counselors, from religious leaders, or from out-
of-state providers, or after they turn 18), and express their
opinions about conversion therapy or homosexuality more
generally. Id. at 1229. California’s conversion therapy ban
“regulate[d] only treatment” and “any effect it may have on
free speech interests is merely incidental.” Id. at 1231. We
further held that California’s regulation of conversion
therapy treatment, because it was a regulation of conduct,
did not require content and viewpoint analysis. Id. at 1231.
Under rational basis review, we upheld California’s
conversion therapy law, holding that it was “rationally
related to the legitimate government interest of protecting
the well-being of minors.” Id. at 1232.
The Supreme Court’s intervening decision in NIFLA

does not require us to abandon our analysis in Pickup insofar
as it related to conduct. NIFLA abrogated only the
“professional speech” doctrine—the part of Pickup in which
we determined that speech within the confines of a
(29 of 73)
professional relationship (the “midpoint” of the continuum)

categorically receives lesser scrutiny. 138 S. Ct. at 2372.
NIFLA involved a challenge to a California law that

required licensed pregnancy clinics to inform clients that
California provides free or low-cost family planning
services, including abortion. 138 S. Ct. at 2368. The district
court denied the plaintiffs’ motion for injunctive relief, and
we affirmed. See Nat’l Inst. of Family & Life Advoc. v.
Harris, 839 F.3d 823, 830 (9th Cir. 2016). We applied the
continuum framework from Pickup, concluded that the law
fell at the midpoint and regulated professional speech, and
upheld the law as satisfying intermediate scrutiny. Id.
at 838–42.
The Supreme Court granted certiorari and reversed our

decision. It expressly rejected the professional speech
doctrine. NIFLA, 138 S. Ct. at 2371–72. On this point, the
Court criticized Pickup by name, along with decisions by
other circuit courts embracing the doctrine. Explaining that
it had never “recognized ‘professional speech’ as a separate
category of speech,” the Supreme Court concluded that
speech is “not unprotected merely because it is uttered by
‘professionals.’” Id. at 2371–72. The Court, however, did
not “foreclose the possibility” that there might be some
reason in the future to treat professional speech as a unique
category. Id. at 2375.
Despite abrogating the professional speech doctrine, the

Court nevertheless affirmed that there are some situations in
which speech by professionals is afforded less protection
under the First Amendment. Id. at 2372. The first exception
is for commercial speech or compelled disclosures, in which
professionals are required to “disclose factual,
noncontroversial information,” such as the terms under
which professional services are offered. Id. (citing Zauderer
(30 of 73)
v. Office of Disciplinary Couns. of Supreme Court of Ohio,

471 U.S. 626, 651 (1985)). The second exception, which
corresponds to the holding in Pickup, is that “States may
regulate professional conduct, even though that conduct
incidentally involves speech.” Id. As support, the Court
described regulations on professional conduct it had
previously upheld, such as state rules limiting lawyers’
communication with potential clients, Ohralik v. Ohio State
Bar Ass’n, 436 U.S. 447, 449 (1978); state regulation of
malpractice by professionals, NAACP v. Button, 371 U.S.
415, 438 (1963); and the right of states to compel doctors
performing abortions to provide information “in a manner
mandated by the State” about the risks of this medical
treatment, Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 884 (1992), overruled on other grounds by Dobbs v.
Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).
But the Court concluded that the notice requirement for

licensed clinics at issue in NIFLA did not meet any exception
for lessened scrutiny. It was not limited to factual,
noncontroversial information about the terms of services. Id.
at 2372 (citing Zauderer, 471 U.S. at 651). Nor was it an
“informed-consent requirement or any other regulation of
professional conduct.” Id. at 2373. The notice requirement
was “not tied to a procedure” and applied to all interactions
a client has with a clinic, “regardless of whether a medical
procedure is ever sought, offered, or performed.” Id.
NIFLA did not abrogate Pickup to the extent that Tingley

contends it did. All parties agree that NIFLA abrogated the
part of Pickup in which we stated that professional speech,
as a category, receives less protection under the First
Amendment. There is no question that NIFLA abrogated the
professional speech doctrine, and its treatment of all
(31 of 73)
professional speech per se as being subject to intermediate

scrutiny. But Tingley instead contends that NIFLA
abrogated Pickup in full, and that Pickup and NIFLA are
irreconcilable to the point where Pickup is no longer binding
law. We do not agree.
The presumption in this Court is that three-judge panels

are bound by prior precedent. Miller v. Gammie, 335 F.3d
889, 899 (9th Cir. 2003) (en banc). The only exception to
that general rule is that when a prior case is “clearly
irreconcilable” with an intervening decision by a higher
authority, a panel is “bound by the later and controlling
authority” instead of the prior circuit authority, which it
should consider “effectively overruled.” Id. at 893.
The “clearly irreconcilable” requirement from Miller is

a “high standard” to meet. Murray v. Mayo Clinic, 934 F.3d
1101, 1105 (9th Cir. 2019) (citation omitted). It is not
enough for there to be “some tension” between the cases or
for the intervening authority to “cast doubt” on this Court’s
prior authority. Lair v. Bullock, 697 F.3d 1200, 1207 (9th
Cir. 2012) (citations omitted). As long as we can apply prior
circuit precedent “consistently with” or “without ‘running
afoul’” of the intervening authority, we must do so. Id.
(quoting United States v. Orm Hieng, 679 F.3d 1131 1140
(9th Cir. 2012)); FTC v. Consumer Def., LLC, 926 F.3d
1208, 1213 (9th Cir. 2019) (“[I]f we can apply our precedent
consistently with that of the higher authority, we must do
so.”).
Miller’s high standard is not met here. Pickup “can be

reasonably harmonized” with NIFLA, and we can apply
Pickup to the facts of this case “without ‘running afoul’” of
NIFLA. Lair, 697 F.3d at 1206–07. In Pickup, we held that
California’s law banning conversion therapy regulated
professional conduct, and we described a continuum
(32 of 73)
approach to regulating the speech of professionals. 740 F.3d

at 1227–29 (citation omitted). In NIFLA, we applied
Pickup’s continuum and held that the notice requirement at
issue in that case fell at the midpoint and regulated
“professional speech.” 839 F.3d at 839. We held that
professional speech, as a category, is subject to intermediate
scrutiny (a question left unanswered by Pickup), and that the
notice requirement for licensed clinics in NIFLA satisfied
this level of scrutiny. Id. at 840–41. The Supreme Court
reversed, holding that our application of the First
Amendment to professional speech, as its own category, was
improper, and that professional speech is not categorically
subject to lesser scrutiny. NIFLA, 138 S. Ct. at 2371–72.
But the Court affirmed that two exceptions exist in which
professional speech is afforded less protection. Id. at 2371–
75. One of those exceptions the Court recognized is the
regulation of professional conduct, even if it “incidentally
burden[s] speech.” Id. at 2373. Because Pickup’s holding
rests upon that exception, it survives NIFLA.
NIFLA only abrogated the theoretical “midpoint” of

Pickup’s continuum—which we did not apply to the
conversion therapy law in Pickup—and the idea that
professional speech per se receives less protection. The two
cases can be applied consistently: Pickup’s approach
survives for regulations of professional conduct.
Tingley is wrong to claim that we have twice recognized

that NIFLA fully abrogated Pickup. We have not. Neither
case provides the support he ascribes to it.
American Beverage Ass’n v. City & County of San

Francisco, 916 F.3d 749 (9th Cir. 2019) (en banc), involved
a challenge to an ordinance that required health warnings on
(33 of 73)
advertisements for certain sugary drinks. We clarified, in

light of NIFLA, how we approach a First Amendment claim
concerning compelled truthful disclosures. Id. at 755–56.
Specifically, we reexamined our decision in CTIA–The
Wireless Ass’n v. City of Berkeley, 854 F.3d 1105 (9th Cir.
2017) (“CTIA I”), a case about compelled commercial
speech that predated NIFLA. In American Beverage, we
“reaffirm[ed] our reasoning and conclusion” in CTIA I.
916 F.3d at 756. We concluded that “nothing in NIFLA
suggests that CTIA [I] was wrongly decided” and, “[t]o the
contrary, NIFLA preserved the exception to heightened
scrutiny” for compelled disclosures, including “health and
safety warnings.” Id. Because the required health warnings
for sugary drinks was a compelled truthful disclosure and
one of the exceptions NIFLA recognized, we applied the
Zauderer test the Court described in NIFLA and held that the
plaintiffs met the requirements for a preliminary injunction.
Id. at 756–58.
Even though NIFLA abrogated the professional speech

doctrine, we have twice upheld a pre-NIFLA case expressly
because NIFLA affirmed that exceptions exist for speech by
professionals that is subject to less scrutiny. Am. Bev. Ass’n,
916 F.3d at 756; see also CTIA–The Wireless Ass’n v. City
of Berkeley, 928 F.3d 832, 837, 844 (9th Cir. 2019) (“CTIA
II”) (“In light of our en banc decision in American Beverage,
and having considered the parties’ supplemental briefing on
NIFLA, we again affirm the district court’s decision.”).
Under our reasoning in these cases, Pickup, which concerns
the other exception preserved in NIFLA, must also be
reaffirmed along those lines.
Our decision in Pacific Coast Horseshoeing School, Inc.

v. Kirchmeyer, 961 F.3d 1062 (9th Cir. 2020), also indicates
that the conduct-versus-speech distinction from Pickup
(34 of 73)
remains intact. There, we heard a challenge to a California

licensing restriction requiring a private school to reject
students’ applications if they did not have a high school
diploma or GED or had not passed a certain federal exam.
Id. at 1067. We analyzed whether the licensing restriction
was a regulation of conduct, as the district court had found,
demonstrating that the exception for regulations on
professional conduct survives NIFLA. Id. at 1069–73. We
ultimately reversed the district court’s holding that
California’s law regulated conduct and instead concluded
that it was a content-based regulation on speech. Id. at 1073.
We remanded to the district court to decide if the exception
recognized in NIFLA for commercial speech applied and
what level of scrutiny to apply. Id. at 1074. Both American
Beverage and Pacific Coast Horseshoeing School confirm
that Pickup’s treatment of regulations of professional
conduct incidentally affecting speech survives NIFLA.
Tingley also contends that “other circuits have likewise

recognized that NIFLA is irreconcilable with Pickup.” But
the decisions Tingley cites do not suggest that NIFLA fully
abrogated Pickup.
In Capital Associated Industries, Inc. v. Stein, 922 F.3d

198 (4th Cir. 2019), the Fourth Circuit recognized that the
Supreme Court “disapproved of” the “so-called
‘professional speech doctrine” in Pickup. Id. at 207. The
Fourth Circuit, however, held that the law before it, which
prohibited the practice of law by corporations, “fits within
NIFLA’s exception for professional regulations” of conduct
“that incidentally affect speech.” Id. The Fourth Circuit
explained that NIFLA “recognize[d] two situations in which
states have broader authority to regulate the speech of
professionals than that of nonprofessionals.” Id. Although
“[m]any laws that regulate the conduct of a profession or
(35 of 73)
business place incidental burdens on speech . . . the Supreme

Court has treated them differently than restrictions on
speech.” Id. at 207–08. Instead of supporting Tingley’s
argument, the Fourth Circuit’s decision in Capital
Associated Industries shows the opposite: Pickup was
abrogated only in part by NIFLA.
So does the Fifth Circuit decision in Vizaline, L.L.C. v.

Tracy, 949 F.3d 927, 934 (5th Cir. 2020), which involved a
First Amendment challenge to state surveyor-licensing
requirements. Id. at 928–29. The Fifth Circuit clarified that
“to the extent Hines [v. Alldredge, 783 F.3d 197 (5th Cir.
2015), the Fifth Circuit equivalent of Pickup] relied on the
professional speech doctrine, its reasoning has been
abrogated by NIFLA,” but the Fifth Circuit “reiterate[d]
NIFLA’s insistence on the conduct-speech analysis.” Id.
at 934. Because the district court did not conduct the
requisite conduct-speech analysis and erred by
“categorically exempting occupational-licensing
requirements from First Amendment scrutiny,” the Fifth
Circuit remanded for the district court to determine whether
the plaintiff’s practice “constitutes speech or conduct.” Id.
The Sixth Circuit decision similarly recognizes only a

partial abrogation of Pickup. EMW Women’s Surgical
Center, P.S.C. v. Beshear, 920 F.3d 421 (6th Cir. 2019),
concerned a state statute that compelled doctors to, among
other things, “describe the ultrasound images to the patient”
before performing the abortion the patient requested. Id. at
423. The Sixth Circuit noted that heightened scrutiny under
the First Amendment “generally applies to content-based
regulation of any speaker, including a physician or other
professional,” but that “the Supreme Court noted in NIFLA
[that] there is ‘less protection for professional speech in two
circumstances,’” including the “regulation of ‘professional
(36 of 73)
conduct.’” Id. at 426 (quoting NIFLA, 138 S. Ct. at 2372).

Examining the compelled informed-consent statute for
doctors performing abortions, the Sixth Circuit held that
even though the law controlled the doctors’ speech, it did not
violate the First Amendment “because the required
disclosures are incidental to the Commonwealth’s regulation
of doctors’ professional conduct.” Id. at 432.
Nor does the Eleventh Circuit’s decision in Otto v. City

of Boca Raton, 981 F.3d 854 (11th Cir. 2020), show that
Pickup has been abrogated in full by NIFLA. There, the
Eleventh Circuit examined conversion therapy bans
instituted by a city and county in Florida. Id. at 859.
Although it rejected the argument that the conversion
therapy bans regulated professional conduct, creating a split
with our circuit, it recognized that “certain types of speech
receive either less protection or no protection under the First
Amendment.” Id. at 865. The Eleventh Circuit explained
that NIFLA “refused to recognize professional speech as a
new speech category,” but that the Court recognized two
exceptions: “commercial speech, as well as incidental
speech swept up in the regulation of professional conduct.”
Id. at 865, 867. Even though the Eleventh Circuit did not
agree that the conversion therapy ordinances regulated
conduct, it confirmed that “there is no doubt that ‘States may
regulate professional conduct,’” id. at 865 (quoting NIFLA,
138 S. Ct. at 2372), because “words can in some
circumstances violate laws directed not against speech but
against conduct,” id. (quoting R.A.V. v. City of St. Paul,
505 U.S. 377, 389 (1992)).
Every decision by our sister circuits that Tingley relies

upon shows that NIFLA did not fully abrogate Pickup. The
exception to heightened scrutiny for regulations of
professional conduct survives NIFLA. Tingley, and some of
(37 of 73)
our sister circuits, may disagree with whether laws

prohibiting licensed therapists from practicing conversion
therapy on minors regulate conduct, but disagreement with
our ultimate conclusion on the merits does not mean that
Pickup, or the exception for regulations of professional
conduct, is abrogated by NIFLA. Because NIFLA abrogated
only the part of Pickup relating to the professional speech
doctrine, and not its central holding that California’s
conversion therapy law is a regulation on conduct that
incidentally burdens speech, Pickup remains binding law
and controls the outcome of this case.
We now apply Pickup to Washington’s law.

Washington’s law is, for all intents and purposes, identical
to California’s law that we held satisfied rational basis
review. States carry a “light burden” under this review.
Erotic Serv. Provider Legal Educ. & Rsch. Project v.
Gascon, 880 F.3d 450, 457 (9th Cir. 2018), amended,
881 F.3d 792 (9th Cir. 2018). A law is “presumed to be valid
and will be sustained” under rational basis review if it is
“rationally related to a legitimate state interest. Id. (quoting
Cleburne v. Cleburne Living Ctr. Inc., 473 U.S. 432, 440
(1985)); see also Dobbs, 142 S. Ct. at 2284 (stating that
health and welfare laws are entitled to a “strong presumption
of validity”) (quoting Heller v. Doe, 509 U.S. 312, 319
(1993)).
Washington’s law satisfies rational basis review for the

same reason that California’s law satisfied this level of
review in Pickup. The Washington Legislature’s stated
purpose in enacting SB 5722 is identical (besides using
“conversion therapy” instead of “SOCE”) to the California
Legislature’s stated purpose in enacting SB 1172:
“protecting the physical and psychological well-being of
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minors, including lesbian, gay, bisexual, and transgender

youth, and . . . protecting its minors against exposure to
serious harms caused by conversion therapy.” 2018 Wash.
Sess. Laws, ch. 300, § 1. This is, “[w]ithout a doubt,” a
legitimate state interest. Pickup, 740 F.3d at 1231.
Washington also has a “compelling interest in the practice of
professions within [its] boundaries,” Goldfarb v. Va. State
Bar, 421 U.S. 773, 792 (1975), “regulating mental health,”
NAAP, 228 F.3d at 1054, and affirming the equal “dignity
and worth” of LGBT people, Fulton v. City of Philadelphia,
Pa., 141 S. Ct. 1868, 1882 (2021) (citation omitted).
The Washington legislature acted rationally when it

decided to protect the “physical and psychological well-
being” of its minors by preventing state-licensed health care
providers from practicing conversion therapy on them. It
considered evidence that demonstrated a “scientifically
credible proof of harm” to minors from conversion therapy.
Pickup, 740 F.3d at 1232. The APA, whose task force
systematically reviewed the scientific research on
conversion therapy and adopted a resolution against it in
2009, confirmed in its amicus brief that the research
presented to Washington showed harm from both aversive
practices and non-aversive practices, such as talk therapy.
The report accompanying Washington’s law concluded that
there is a “fair amount of evidence that conversion therapy
is associated with negative health outcomes such as
depression, self-stigma, cognitive and emotional dissonance,
emotional distress, and negative self-image” and that “the
literature indicates that large proportions of surveyed
individuals who have been a part of conversion therapy
report adverse health effects associated with these efforts.”
The report acknowledged that “[r]esearch ethics make it
difficult to rigorously study a practice associated with
harm.” In other words, ethical review boards are unlikely to
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approve double-blind research studies subjecting children to

a practice for which there is already a fair amount of
evidence indicating it is harmful.
Further, Washington legislators relied on the fact that

“[e]very major medical and mental health organization” has
uniformly rejected aversive and non-aversive conversion
therapy as unsafe and inefficacious. State legislators also
considered qualitative evidence of harm from Washington
residents who were exposed to non-aversive conversion
“talk” therapy and urged them to enact legislation
prohibiting the practice. See, e.g., Senate Floor Debate,
TVW (Jan. 19, 2018 10:00 AM),
https://tvw.org/video/senate-floor-debate-2018011151/?eve
ntID=2018011151 at 1:18:00–1:20:20.
In relying on the body of evidence before it as well as the

medical recommendations of expert organizations, the
Washington Legislature rationally acted by amending its
regulatory scheme for licensed health care providers to add
“[p]erforming conversion therapy on a patient under age
eighteen” to the list of unprofessional conduct for the health
professions. Wash. Rev. Code § 18.130.180(27). As in
Pickup, we hold that Washington’s law satisfies rational
basis review.
III
In addition to following our precedent in Pickup, we

have an additional reason for reaching the conclusion that
we reach today. The Supreme Court has recognized that
laws regulating categories of speech belonging to a “long . . .
tradition” of restriction are subject to lesser scrutiny.
NIFLA, 138 S. Ct. at 2372 (citation omitted). Washington’s
law regulates a category of speech belonging to such a
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tradition, and it satisfies the lesser scrutiny imposed on such

laws.
In NIFLA, the Court rejected that professional speech, as

a category, is subject to lesser scrutiny under the First
Amendment. This is because a category that would exempt
all speech uttered by individuals in professional capacities as
varied as accounting, consulting, law, dentistry, architecture,
investment banking, and contracting could entirely swallow
the protection for free speech that the Founders enshrined in
our Constitution.
Even so, the Court has repeatedly recognized that there

may be categories of speech warranting lesser scrutiny under
the First Amendment that, while appearing novel, belong to
a “long (if heretofore unrecognized) tradition” of restriction.
Id. (citation omitted). To impose content-based restrictions
on such categories, States must have “persuasive evidence”
of a “tradition to that effect.” Id. (internal quotation marks
and citation omitted).
The Court first left open the door to new categories of

speech in United States v. Stevens, 559 U.S. 460 (2010).
There, it declined to carve out a “novel exception” from the
First Amendment for speech depicting extreme animal
cruelty. Id. at 472. The Court reasoned that there was no
evidence that this type of speech has historically been
unprotected, yet it declined to “foreclose the future
recognition of such additional categories.” Id. Instead, it
invalidated the law as unconstitutionally overbroad. Id.
at 482.
In Brown v. Entertainment Merchants Ass’n, 564 U.S.

786, 792 (2011), the Court rejected the government’s
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attempt to “create new categories of unprotected speech” for

restrictions on the labeling and sale of violent video games.
The Court affirmed that States could not create new
categories of speech “without persuasive evidence that a
novel restriction on content is part of a long (if heretofore
unrecognized) tradition of proscription.” Id. Instead of a
long tradition of proscription, the Court characterized the
State’s attempt to restrict the sale of violent video games as
an “attempt to shoehorn speech about violence into
obscenity.” Id. at 793.
In United States v. Alvarez, 567 U.S. 709, 730 (2012),

the Court affirmed our determination that the Stolen Valor
Act, which made it a crime to lie about receiving a military
award, violated the First Amendment. The Court stated that
there may exist “some categories of speech that have been
historically unprotected . . . but have not yet been
specifically identified or discussed . . . in our case law.” Id.
at 722 (citation omitted). It declined, however, to recognize
a new, broad category encompassing all false statements
“made to any person, at any time, in any context.” Id. at 720.
Drawing upon this line of cases in NIFLA, the Court held

that there was not “‘persuasive evidence . . . of a long (if
heretofore unrecognized) tradition’” of exempting speech by
professionals from First Amendment protection. NIFLA,
138 S. Ct. at 2372 (quoting Alvarez, 567 U.S. at 722). A
category encompassing all words spoken by individuals in
their professional capacity, in the Court’s eyes, was too
broad and lacked “such a tradition.” Id. But, as described
supra, the Court recognized that some subcategories of
speech by professionals are, in fact, excepted from
heightened scrutiny and instead subject to less scrutiny. Id.
What follows from this line of cases is that in some

circumstances, a seemingly novel restriction on speech, even
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if content-based, may be tolerated, but only if there is a “long

(if heretofore unrecognized) tradition” of that type of
regulation, id., and the category is not too broad. Whether
we view Washington’s law as falling into the exception from
heightened scrutiny for regulations on professional conduct
that incidentally involve speech, see Part II, supra, or,
alternatively, as discussed below, as falling into the tradition
of regulations on the practice of medical treatments, the law
satisfies the requisite scrutiny.
There is a long (if heretofore unrecognized) tradition of

regulation governing the practice of those who provide
health care within state borders. See Dent v. West Virginia,
9 S. Ct. 231, 232 (1889) (upholding medical licensing
requirements, including a prohibition on “swear[ing] falsely
to any question which may be propounded to him on his
examination”) (citation omitted); see also Hawker v. People
of New York, 170 U.S. 189, 191 (1898) (allowing state, as
part of its police power, to deem who possesses a “sufficient
good character” to practice medicine).
And such regulation of the health professions has applied

to all health care providers, not just those prescribing drugs.
In Collins v. Texas, 223 U.S. 288 (1912), for instance, the
Court affirmed the conviction of a man practicing osteopathy
without a license, reasoning that “[i]t is true that he does not
administer drugs, but he practises what at least purports to
be the healing art.” Id. at 296. Texas, and all other states,
“constitutionally may prescribe conditions to such practice,
considered by it to be necessary or useful to secure
competence in those who follow it.” Id. The Court provided
a long list of cases from state courts similarly establishing
“the right of the state to adopt a policy even upon medical
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matters concerning which there is difference of opinion and

dispute.” Id. at 297–98.
Conversion therapy, as the briefing here has highlighted,

involves a difference of opinion and dispute. Tingley
contends that “change in gender identity and sexual
orientation” is “possible with God’s help” and wants to
practice conversion therapy on minor clients who seek it.
Equal Rights Washington, in turn, cites studies in the record
documenting that “youth who underwent conversion therapy
were ‘more than twice as likely to report having attempted
suicide’” and that the medical community has rejected the
practice as “unnecessary, ineffective, and unsafe.” Tingley
responds that states, and courts in reviewing their laws,
cannot rely upon the positions of expert medical
organizations because “it is not uncommon for professional
organizations to do an about-face in response to new
evidence or new attitudes.”
But the Court has upheld substantive regulations on

medical treatments based upon differences of opinion and,
in doing so, has relied upon the positions of the professional
organizations Tingley criticizes, even when those positions
have changed over time. In Lambert v. Yellowley, 272 U.S.
581 (1926), the Court upheld the constitutionality of the
National Prohibition Act’s limit on the prescription of spirit
liquor for medical treatment. Under that Act, only a licensed
physician could prescribe liquor, and no more than a pint of
liquor could be prescribed for medical treatment. Id. at 587.
The evidence presented to Congress showed that “practicing
physicians differ about the value of malt, vinous, and
spiritous liquors for medicinal purposes, but that the
preponderating opinion is against their use for such
purposes.” Id. at 590. The Court relied upon a resolution
adopted by the American Medical Association declaring that
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“the use of alcoholic liquor as a thereapeutic [sic] agent was

without ‘scientific basis’ and ‘should be discouraged.’” Id.
at 591.
Nearly 100 years later, we are faced with a similar

situation. As in Lambert, the evidence presented shows
some difference in opinion about the efficacy and harm of
conversion therapy, but the “preponderating opinion” in the
medical community is against its use. Id. at 590.
Washington relied upon a resolution adopted by the
American Psychological Association that the use of
conversion therapy “should be discouraged.” Id. at 591. Just
as Tingley claims his minor clients want conversion therapy,
in 1926, some patients likely wanted their doctor to treat
their condition with more than a pint of liquor. That
purported desire, and a patient’s right to choose, nevertheless
did not overcome the right of the government to regulate
what medical treatments its licensed health care providers
could practice on their patients according to the applicable
standard of care and governing consensus at the time (even
if not unanimous).
That expert medical organizations have changed their

view over time, with additional research, is a good thing.
Science, and the medical practices used to treat human
conditions, evolve over time. But we still trust doctors, and
the professional organizations representing them, to treat our
ailments and update their recommendations on the
governing standard of care. That doctors prescribed whiskey
in 1922, and thought of homosexuality as a disease in 1962,
does not mean that we stop trusting the consensus of the
medical community in 2022 or allow the individual desires
of patients to overcome the government’s power to regulate
medical treatments.
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Washington, understandably, rests its case upon our

precedent in Pickup. But the long tradition of this type of
regulation provides further support for our decision today.
Otherwise, this would endanger other regulations on the

practice of medicine where speech is part of the treatment.
Aside from prohibiting practicing conversion therapy on
minors, Washington’s Uniform Disciplinary Act contains
other limitations on speech uttered by licensed health care
professionals. Wash. Rev. Code § 18.130.180(16), for
instance, prohibits the “[p]romotion for personal gain of any
unnecessary or inefficacious drug, device, treatment,
procedure, or service.” Similarly, § 18.130.180(4) precludes
“[i]ncompetence, negligence, or malpractice which results in
injury to a patient or which creates an unreasonable risk that
a patient may be harmed.” Section 18.130.180(19) subjects
to discipline the offering “to cure or treat diseases by a secret
method.” And § 18.130.180(3) prohibits all advertising by
health care professionals that is “false, fraudulent, or
misleading.”
Because the Uniform Disciplinary Act applies to

licensed marriage and family therapists like Tingley, and
because Tingley claims his treatments “consist entirely of
speech,” all these limitations impose restrictions on his
speech based on the content of his words. If Washington’s
prohibition on licensed health care providers practicing
conversion therapy on minors (§ 18.130.180(27)) is an
unconstitutional content-based restriction on the speech of
licensed health care professionals, then this would preclude
other reasonable “health and welfare laws,” Dobbs, 142 S.
Ct. at 2284, that apply to health care professionals and
impact their speech. It would also, as amici warn, endanger
centuries-old medical malpractice laws that restrict
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treatment and the speech of health care providers. See also

Robert Post, Informed Consent to Abortion: A First
Amendment Analysis of Compelled Physician Speech, 2007
U. Ill. L. Rev. 939, 950 (2007) (contending that “doctors are
routinely held liable for malpractice for speaking or for
failing to speak” without First Amendment concern, such as
by “failing to inform patients in a timely way of an accurate
diagnosis” or by “failing to give patients proper
instructions”).
The practice of psychotherapy is not different from the

practice of other forms of medicine simply because it uses
words to treat ailments. Tingley is not immune from
regulation on the practice of medicine because he claims that
all he does “is sit and talk” with his clients. Washington law
defines psychotherapy as more than just talking. It is the
“practice of counseling using diagnosis of mental disorders
according to the fourth edition of the diagnostic and
statistical manual of mental disorders, published in 1994,
and the development of treatment plans for counseling based
on diagnosis of mental disorders in accordance with
established practice standards.” Wash. Rev. Code
§ 18.19.020.
Marriage and family therapy, more specifically, is the

“diagnosis and treatment of mental and emotional disorders,
whether cognitive, affective, or behavioral, within the
context of relationships, including marriage and family
systems.” Id § 18.225.010(8). This type of therapy
“involves the professional application of psychotherapeutic
and family systems theories and techniques in the delivery
of services to individuals, couples, and families for the
purpose of treating such diagnosed nervous and mental
disorders.” Id. And Washington defines mental health
counseling as “the application of principles . . . for the
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purpose of treatment of mental disorders” which “includes,

but is not limited to, the assessment, diagnosis, and treatment
of mental and emotional disorders.” Id. § 18.225.010(9).
If Washington’s law is upheld and conversion therapy is

considered conduct, Tingley contends, then “protesting,”
“debating,” and “book clubs” could be next. This misses the
mark. What licensed mental health providers do during their
appointments with patients for compensation under the
authority of a state license is treatment. The work that
Tingley does is different than a conversation about the
weather, even if he claims that all he does is “sit and talk.”
When a health care provider acts or speaks about treatment
with the authority of a state license, that license is an
“imprimatur of a certain level of competence.” Otto v. City
of Boca Raton, No. 19-10604, 2022 WL 2824907, at *19
(11th Cir. July 20, 2022) (Rosenbaum, J., joined by Pryor, J.
J., dissenting in the denial of rehearing en banc). Comparing
the work that licensed mental health providers do to book
club discussions or conversations among friends minimizes
the rigorous training, certification, and post-secondary
education that licensed mental health providers endure to be
able to treat other humans for compensation.
The health professions differ from other licensed

professions because they treat other humans, and their
treatment can result in physical and psychological harm to
their patients. This is why there is a historical tradition of
states restricting the medical practices health care providers
can use, while not, for instance, forbidding architects from
“propos[ing] buildings in the style of I.M. Pei” or preventing
accountants from “discuss[ing] legal tax avoidance
techniques.” Otto, 981 F.3d at 867. The expressive conduct
of other professions, even when involving the speech of
professionals within the confines of a client relationship,
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does not run the same risk of harm. From “time

immemorial,” we have recognized “[t]he power of the state
to provide for the general welfare of its people authorizes it
to prescribe all such regulations as in its judgment will
secure or tend to secure them against the consequences of
ignorance and incapacity, as well as of deception and fraud.”
Dent, 129 U.S. at 122. And “[f]ew professions require more
careful” scrutiny than “that of medicine.” Id.; see also Shea
v. Bd. of Med. Examiners, 146 Cal. Rptr. 653, 661 (Ct. App.
1978) (“The Legislature . . . has the right to require that those
licensed to practice medicine be of good moral character,
reliable, trustworthy, and not given to deception of the public
or to the practice of imposing upon credulous or ignorant
persons.”).
Tingley’s minor patients come to him for his help in

treating a mental health condition, such as anxiety or
depression. Washington law defines Tingley’s practice as
“the diagnosis and treatment of mental and emotional
disorders,” Wash. Rev. Code § 18.225.010(8), even if he
only uses speech in that treatment. Whether children with a
mental health condition go to a primary care physician and
seek anti-depressant pills, or a therapist and seek
psychotherapy, or a psychiatrist and seek both, the State may
regulate the licensed provider’s treatment of those health
conditions. That some of the health providers falling under
the sweep of Wash. Rev. Code § 18.130 use speech to treat
those conditions is “incidental[].” NIFLA, 138 S. Ct.
at 2372. The treatment can be regulated all the same.
Washington, like other states, has concluded that health

care providers should not be able to treat a child by such
means as telling him that he is “the abomination we had
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heard about in Sunday school.” 3 Washington’s law not only

falls within the tradition of state regulation of the health
professions, but it also affects the health of children—a
vulnerable group in the eyes of the law.
Tingley claims that he has minor patients who want to

receive conversion therapy. Perhaps he does. But a review
of his complaint reveals examples of children who claim to
want conversion therapy only after their parents bring them
to Tingley for it. He describes working with a teenage girl
whose parents brought her to Tingley with a belief that “God
had created their daughter female” and “sought [his]
professional expertise as a counselor to work with their
daughter towards” a goal of “return[ing] to comfort with her
female body and reproductive potential, and with a gender
identity as a female.” Only “[a]fter several counseling
sessions” with Tingley did this child “express[] a desire to
become more comfortable with her biological sex,
notwithstanding her previous claims of a male gender
identity.” As for counseling minors on sexual orientation,
Tingley provided the example of counseling a teen whose
“parents first brought him to my office.” And then, only
“over time” like the other client he described, did this client
seek Tingley’s “counsel on a number of topics including
attraction to pornography and unwanted same-sex
attractions.” These examples highlight the difficulty in
assessing whether there has been knowing, informed, and
voluntary consent, c.f. Schneckloth v. Bustamonte, 412 U.S.
218, 228 (1973), when it comes to children receiving
3
See John J. Lapin, Note, The Legal Status of Conversion Therapy,
22 Geo. J. Gender & L. 251, 251 (2021) (quoting Sam Brinton, I Was
Tortured in Gay Conversion Therapy. And It's Still Legal in 41 States,
N.Y. Times (Jan. 24, 2018), https://www.nytimes.com/2018/01/24/opin
ion/gay-conversion-therapy-torture.html.
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medical treatment. This is particularly so when that

treatment is encouraged by the sincerely held religious
beliefs of their parents, from whom children rely on for
shelter, food, and financial support.
The difficulties in having therapists, legislators, and

judges assess whether a minor is consenting, without
coercion, to a therapeutic practice that every major medical
organization has opposed, demonstrates why Washington’s
law is appropriately tailored to its interest in “protecting the
physical and psychological well-being of minors, including
lesbian, gay, bisexual, and transgender youth.” 2018 Wash.
Sess. Laws, ch. 300, § 1. Washington cannot easily draw
lines between children who want conversion therapy
because of their own free will and religious beliefs, children
who want conversion therapy because of internalized
homophobia and transphobia, and children who want
conversion therapy because their parents want them to have
conversion therapy. Instead, Washington reasonably relied
on scientific evidence and the consensus of every major
medical organization to prohibit the practice on all children,
regardless of the religious beliefs of the child, and regardless
of the religious beliefs of the health care provider.
Children may identify as gay, straight, cisgender, or

transgender. These identities “must be honored out of ‘that
respect for the individual which is the lifeblood of the law.’”
Faretta v. California, 422 U.S. 806, 834 (1975). We uphold
Washington’s law and reject Tingley’s free speech challenge
because the Washington law permissibly honors individual
identity.
IV
Tingley also appeals the district court’s dismissal of his

free exercise challenge to Washington’s law. The Free
(51 of 73)
Exercise Clause of the First Amendment prevents Congress

from making a law “prohibiting the free exercise” of religion
and applies to the States through the Fourteenth
Amendment. Church of the Lukumi Babalu Aye, Inc., v. City
of Hialeah, 508 U.S. 520, 531 (1993). But this right “does
not relieve an individual of the obligation to comply with a
valid and neutral law of general applicability.” Emp. Div.,
Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 879 (1990)
(internal quotation marks and citation omitted). We apply
strict scrutiny only when a law fails to be neutral and
generally applicable, even if the law incidentally burdens
religious practice. Church of the Lukumi, 508 U.S. at 531.
Otherwise, we apply rational basis review. Stormans, Inc. v.
Wiesman, 794 F.3d 1064, 1076 (9th Cir. 2015) (“Stormans
II”).
Washington’s law satisfies neutrality. Tingley has failed

to “discharge[] his burdens” at the first step of our Free
Exercise Clause inquiry. Kennedy v. Bremerton Sch. Dist.,
142 S. Ct. 2407, 2422 (2022).
To start, we evaluate the object of the law. If the purpose

of the law is to restrict practices because of the religious
motivations of those performing the practices, the law is not
neutral. Parents for Priv. v. Barr, 949 F.3d 1210, 1235 (9th
Cir. 2020), cert. denied, 141 S. Ct. 894. The object of
Washington’s law is not to target religion. In Welch v.
Brown, 834 F.3d 1041 (9th Cir. 2016), we considered and
rejected a free exercise challenge to California’s nearly
(52 of 73)
identical conversion therapy law. 4 Here, as in Welch, the

object of the State’s ban on conversion therapy is “the
prevention of harm to minors, regardless of the motivations
for seeking” or providing conversion therapy. Welch,
834 F.3d at 1047; see also 2018 Wash. Sess. Laws, ch. 300,
§ 1. Washington’s exemption for counselors practicing in a
religious capacity, Wash. Rev. Code § 18.225.030(4), shows
that it intended to regulate health care providers only to the
extent they act in a licensed and non-religious capacity,
“only within the confines of the counselor-client
relationship.” Welch, 834 F.3d at 1045. Washington
restricted licensed providers from performing conversion
therapy on minors because of the demonstrated harm that
results from these practices, and not to target the religious
exercise of health care providers. This is unlike the situation
in Kennedy, in which the school district admitted that it
“sought to restrict [the coach’s] actions at least in part
because of their religious character.” 142 S. Ct. at 2422.
The next step in evaluating a law for neutrality is to

examine the text of the law to determine if it is neutral on its
face. Church of the Lukumi, 508 U.S. at 533. A law fails to
be neutral if “it refers to a religious practice without a secular
meaning discernible from the language or context.” Id.
Washington’s law prohibits therapists from practicing
conversion therapy on minors. It makes no reference to
religion, except to clarify that the law does not apply to
practice by religious counselors. See 2018 Wash. Sess.
4
After our decision in Pickup, one of the two consolidated cases
came back to us after the district court denied the plaintiffs’ request for
a preliminary injunction based on free exercise grounds. We affirmed.
Welch, 834 F.3d at 1044.
(53 of 73)
Laws, ch. 300, § 2. The law’s express protection for the

practice of conversion therapy in a religious capacity is at
odds with Tingley’s assertion that the law inhibits religion.
Tingley all but concedes the law is facially neutral, instead
arguing that facial neutrality is “not determinative” and
advocating what he sees as “subtle departures from
neutrality,” Church of the Lukumi, 508 U.S. at 534 (citation
omitted), which we discuss below.
The circumstances surrounding the enactment of SB

5722 do not undermine its facial neutrality. Beyond
examining a law’s neutrality on its face, we also look at the
circumstances of the law’s enactment, including the
historical background, precipitating events, and legislative
history. Church of the Lukumi, 508 U.S. at 540; see also
Kennedy, 142 S. Ct. at 2422 n.1.
Tingley’s primary mode of distinguishing this case from

Welch is by pointing to comments made by Washington
legislators that, to him, show the law is “tainted with anti-
religious animus.” He analogizes to Masterpiece Cakeshop,
Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719
(2018), in which the Court found that comments by members
of the Colorado Civil Rights Commission evinced a lack of
neutrality under the Free Exercise Clause. Id. at 1723–24.
For several reasons, Tingley’s comparison fails.
First, the comments to which Tingley refers do not show

a hostility toward religion. Washington State Senator Liias’s
comment, in which he “speak[s] for [him]self,” that the bill
is directed against “barbaric practices,” goes toward the
mode of treatment that constituents described to him—such
as using electroshock therapy or inducing vomiting—and
not toward the religious belief Tingley and others hold
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against homosexuality. Senate Floor Debate, TVW (Jan. 19,

2018 10:00 AM), https://tvw.org/video/senate-floor-debate-
2018011151/?eventID=2018011151 at 1:16:48–1:20:23.
Tingley also claims that another sponsor of the bill,

Republican State Senator Maureen Walsh, denounced those
who try to “pray the gay away,” which implicitly suggests
that the law has an object of inhibiting religion. Tingley
takes Senator Walsh’s comments out of context. Walsh,
whose daughter is gay, was speaking to her personal
experience as a parent. She shared the story of a friend’s
experience of conversion therapy and used her friend’s
words that he thought he could “pray the gay away” but
instead found the conversion therapy to be ineffective.
Senate Floor Debate, TVW (Jan. 19, 2018 10:00 AM),
https://tvw.org/video/senate-floor-debate-2018011151/?eve
ntID=2018011151 at 1:20:30–1:23:50. Soon after that
comment, Senator Walsh invoked her own Christian beliefs,
that “God put us all on the Earth to be here and function as
we do.” She acknowledged that this issue is complicated and
said that she understood why some of her colleagues would
not vote for the bill. Viewed in context, these comments do
not establish the anti-religious bias that Tingley claims.
We reject Tingley’s contention that these stray, out-of-

context comments by Washington legislators are “more
overtly hostile” than the statements in Masterpiece.
Masterpiece involved a free exercise challenge brought by a
cake shop owner who refused to bake wedding cakes for
same-sex couples. 138 S. Ct. at 1723. Public, on-the-record
comments by Colorado Civil Rights Commission members
compared the plaintiff’s invocation of his religious beliefs to
“defenses of slavery and the Holocaust,” and individual
commissioners disparaged his religious invocation as
“despicable.” Id. at 1729. The stray comments from
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Washington legislators speaking for themselves about the

experiences of friends and constituents who underwent
conversion therapy come nowhere close to the hostility
contained in the comments at issue in Masterpiece.
Masterpiece also examined public comments by

government officials in a different context. The
commissioners’ statements about the plaintiff and his
religious beliefs were made during the adjudication of the
plaintiff’s specific case before the commission. Id. at 1729–
30. Here, in comparison, the stray comments were made as
part of a voluminous legislative history that does not show a
hostility toward religion, nor an object of targeting religious
practice. The Court in Masterpiece acknowledged the
distinction between hostile comments made by an
adjudicatory body when deciding a case in front of it, and
comments made by a legislative body when debating a bill.
Id. at 1730. In Masterpiece, the Court could not “avoid the
conclusion that these statements cast doubt on the fairness
and impartiality of the Commission’s adjudication of [the
plaintiff’s] case.” Id. at 1730.
Stray remarks of individual legislators are among the

weakest evidence of legislative intent. The Court has “long
disfavored arguments based on alleged legislative motives”
because such inquiries are a “hazardous matter.” Dobbs,
142 S. Ct. at 2255–56 (quoting United States v. O’Brien,
391 U.S. 367, 383 (1968)). The Court has “been reluctant to
attribute those motives to the legislative body as a whole”
because “[w]hat motivates one legislator to make a speech
about a statute is not necessarily what motivates scores of
others to enact it.” Id. at 2256 (quoting O’Brien, 391 U.S.
at 384).
The allegedly hostile comments cited by Tingley do not

establish a free exercise violation. Viewed in context, the
(56 of 73)
stray comments are not hostile toward religious practice,

they did not take place in an adjudicative context like
Masterpiece, and, as the Court recently made clear, they are
weak evidence of the intent of the entire legislature in
enacting the challenged law.
In addition to the object, text, and legislative history, we

also consider the real-world operation of a law to determine
if it is neutral. Church of the Lukumi, 508 U.S. at 535. In
Church of the Lukumi, a city’s ordinances against animal
sacrifices contained so many exemptions that in practice, the
city effectively accomplished a “religious gerrymander”
targeting the petitioners’ religious exercise. Id. (citation
omitted). Tingley contends that Washington’s law is not
operationally neutral because the Washington Legislature
knew the law would prohibit counseling “almost
exclusively” “sought ‘for religious reasons’ and provided by
those who believe in ‘Christian faith-based methods.’” But
the legislative history and evidence before the Washington
legislature show that the legislators understood that people
seek conversion therapy for religious and secular reasons,
such as “social stigma, family rejection, and societal
intolerance for sexual minorities,” Welch, 834 F.3d at 1046,
and that the harm from conversion therapy is present
regardless of why people seek it.
SB 5722 evenhandedly prohibits health care providers

from performing conversion therapy on minors, whether
those minors seek it for religious or non-religious reasons:
“[t]he same conduct is outlawed for all.” Stormans II,
794 F.3d at 1077 (quoting Am. Life League, Inc. v. Reno,
47 F.3d 642, 656 (4th Cir. 1995)). The law prohibits, or
more accurately deems “unprofessional,” the practice of
conversion therapy by all licensed providers (regardless of
(57 of 73)
their religious or secular motivations) on clients who are

under the age of 18 (regardless of their religious or secular
motivations). If SB 5722 was aimed only at therapists
wanting to practice conversion therapy on minors for
religious reasons, this would be cause for concern. But that
“a particular group, motivated by religion, may be more
likely to engage in the proscribed conduct” does not amount
to a free exercise violation. Welch, 834 F.3d at 1047
(quoting Stormans II, 794 F.3d at 1077).
SB 5722 is a neutral law targeted at preventing the harms

associated with conversion therapy, and not at the religious
exercise of those who wish to practice this type of therapy
on minors.
Tingley also does not carry his burden of showing that

Washington’s law is not a law of general applicability.
Broadly speaking, there are two ways a law is not generally
applicable. Fulton v. City of Philadelphia, 141 S. Ct. 1868,
1877 (2021). The first is if there is a “formal mechanism for
granting exceptions” that “invite[s] the government to
consider the particular reasons for a person’s conduct.” Id.
at 1879 (internal quotation marks and citation omitted). The
second is if the law “prohibits religious conduct while
permitting secular conduct” that also works against the
government’s interest in enacting the law. Id. at 1878.
Neither applies here.
SB 5722 does not provide a formal and discretionary

mechanism for individual exceptions. Tingley contends that
the vague terms in Washington’s law will lead to a
discretionary system of individual exemptions. Specifically,
(58 of 73)
he suggests that the hostile comments made by individual

legislators indicate that “these officials” (even though they
are not the ones who will enforce the law) “will likely
exempt secular, ‘value-neutral’ counseling” as not violative
of the law “while punishing counseling . . . informed or
motivated by faith-based convictions.” This speculative and
conclusory “possibility” is not sufficient to meet Tingley’s
burden.
The Supreme Court in Fulton described a “formal

mechanism” for granting individual exceptions that vests
discretion with the enforcing officers. 141 S. Ct. at 1879.
There, Philadelphia stopped referring children to a Catholic
adoption agency that refused to recognize same-sex parents.
Id. at 1875. The city relied upon a contractual provision that
prohibited adoption agencies from discriminating against
prospective adoptive parents based upon their sexual
orientation “unless an exception is granted by the
Commissioner . . . in his/her sole discretion.” Id. at 1878.
The Court found that this provision (1) was a formal
mechanism, (2) creating a system of individual exceptions,
(3) that would be exercised at the discretion of a government
official. Id. at 1878–79. There is no provision in the
Washington law for individual exceptions that would allow
secular exemptions but not religious ones. In fact, there is
no exemption system whatsoever, not even one that affords
“some minimal governmental discretion.” Stormans II,
794 F.3d at 1082.
Nor does the Washington law “treat any comparable

secular activity more favorably than religious exercise.”
Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021); see also
Stormans II, 794 F.3d at 1079 (“A law is not generally
applicable if its prohibitions substantially underinclude non-
(59 of 73)
religiously motivated conduct that might endanger the same

governmental interest that the law is designed to protect.”).
In Tandon, the Supreme Court granted an application for
emergency injunctive relief requested by plaintiffs who
wished to gather for religious exercise in violation of
California’s pandemic restrictions. 141 S. Ct. at 1297.
Because California permitted hair salons, retail stores, movie
theaters, and indoor restaurants to bring more than three
households together, but it did not permit the same for
people who wanted to gather for at-home religious exercise,
the Court concluded the State’s policy was not generally
applicable. Id.
Tingley is unable to identify comparable secular activity

that undermines Washington’s interest in enacting SB 5722
but is permitted under the law. Whether secular and
religious activity are “comparable” is evaluated “against the
asserted government interest that justifies the regulation at
issue” and requires looking at the risks posed, not the reasons
for the conduct. Id. at 1298.
We do not accept Tingley’s contention that gender-

affirming therapy “can lead to the very types of
psychological harms” Washington says it wants to eliminate
by prohibiting conversion therapy. SB 5722 is not targeted
toward anecdotal reports of “regret” from “sex reassignment
surgery” or the prescription of “puberty blocking drugs”
about which Tingley’s complaint warns. Instead, the law is
targeted toward the scientifically documented increased risk
of suicide and depression from having a licensed mental
health provider try to change you. These harms are not the
same. See Tandon, 141 S. Ct. at 1298 (Kagan, J., dissenting)
(“[T]he law does not require that the State equally treat
apples and watermelons.”). Tingley is unable to show that
Washington’s law permits secular conduct that undermines
(60 of 73)
the same interest Washington asserted in enacting SB 5722.

Washington’s law is neutral and generally applicable, and
survives rational basis review, for the reasons described in
Part II. 5
Aside from his First Amendment claims, Tingley also

challenges Washington’s law as unconstitutionally vague
under the Fourteenth Amendment’s Due Process Clause. A
law is unconstitutionally vague if it does not give “a person
of ordinary intelligence fair notice of what is prohibited” or
if it is “so standardless that it authorizes or encourages
seriously discriminatory enforcement.” United States v.
Williams, 553 U.S. 285, 304 (9th Cir. 2008). Tingley raises
a vagueness challenge under both the fair notice and the
arbitrary enforcement theories.
The operative question under the fair notice theory is

whether a reasonable person would know what is prohibited
by the law. The terms of a law cannot require “wholly
subjective judgments without statutory definitions,
narrowing context, or settled legal meanings.” Holder v.
Humanitarian L. Project, 561 U.S. 1, 20 (2010) (quoting
5
We decline Tingley’s demand to apply strict scrutiny under the
“hybrid rights exception,” which stems from dicta in Smith, 494 U.S.
at 881–82. We have cast doubt on whether this exception exists, and we
have not applied strict scrutiny to a challenged law on this basis. See
Parents for Privacy v. Barr, 949 F.3d 1210, 1236–37 (9th Cir. 2020)
(doubting whether exception exists and whether strict scrutiny would be
required if it does); see also Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d
419, 440 n.45 (9th Cir. 2008) (describing widespread criticism and
declining to adopt the exception).
(61 of 73)
United States v. Williams, 553 U.S. 285, 306 (2008)). For

facial vagueness challenges, we tolerate uncertainty at the
margins; the law just needs to be clear “in the vast majority
of its intended applications.” Cal. Teachers Ass’n v. State
Bd. of Educ., 271 F.3d 1141, 1151 (9th Cir. 2001) (quoting
Hill v. Colorado, 530 U.S. 703, 733 (2000). Here,
Washington’s law gives fair notice to a reasonable person of
what conduct is prohibited in the “vast majority of its
intended applications.”
Tingley claims that “sexual orientation” and “gender

identity” are vague terms without consistent definitions.
Neither term is unconstitutionally vague. We previously
rejected a challenge on vagueness grounds to “sexual
orientation” in California’s nearly identical law, foreclosing
Tingley’s challenge to this term. Pickup, 740 F.3d at 1234.
Sexual orientation has only become more commonly
understood in society since we decided Pickup in 2014, see
Obergefell v. Hodges, 576 U.S. 644, 661 (2015), as has
gender identity. “Gender identity” and “gender expression”
are common legal terms that appear in multiple provisions
of Washington law, federal statutes, and caselaw. See, e.g.,
Wash. Rev. Code § 48.43.072 (defining terms); 18 U.S.C.
§ 249(c)(4) (including “gender identity” as a protected
characteristic under the federal hate crimes act); see also
Bostock v. Clayton County, 140 S. Ct. 1731, 1737 (2020)
(holding that an employer violates Title VII by
discriminating against someone because of their sexual
orientation or “gender identity”).
“Sexual orientation” and “gender identity” have

common meanings that are clear to a reasonable person—let
alone a licensed mental health provider. Usually, we look to
a term’s common meaning, but if the law regulates the
“conduct of a select group of persons having specialized
(62 of 73)
knowledge,” then the “standard is lowered” for terms with a

“technical” or “special meaning.” United States v.
Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1993) (citation
omitted). Here, Washington’s law proscribes the conduct of
licensed mental health providers—a “select group of persons
having specialized knowledge”—so we must also consider
the specialized knowledge of this group and its familiarity
with these terms. Id. Washington’s expert, who chaired the
APA Task Force surveying the scientific literature about
conversion therapy, stated in a declaration that “sexual
orientation” and “gender identity” are well-established
concepts in the psychology field. Tingley himself holds
himself out as having counseled minors on “gender identity”
issues, making it difficult to believe that he, a licensed
mental health provider in Washington, does not understand
what this term means.
We also reject Tingley’s argument that a reasonable

person could not understand what conduct is proscribed by
Washington’s law because the line between permissible
counseling involving “identity exploration and
development” and impermissible counseling seeking to
“change” a minor’s identity may be hard to discern. But the
terms of the statute provide a clear, dividing line: whether
change is the object. See Wash. Rev. Code
§ 18.130.020(4)(b) (“‘Conversion therapy’ does not include
counseling or psychotherapies that provide . . . identity
exploration and development that do not seek to change
sexual orientation or gender identity.”) (emphasis added);
Wash. Rev. Code § 18.130.020(4)(a) (“‘Conversion
therapy’ means a regime that seeks to change an individual’s
sexual orientation or gender identity.” The term includes
“efforts to change behaviors or gender expressions . . . .”)
(emphasis added). As Washington explains, what matters is
not whether change occurs, but whether the therapeutic
(63 of 73)
interventions have a “fixed outcome” or an “a priori goal of

an externally-chosen identity.” Tingley ignores that “identity
exploration” and “identity development” are technical
psychological terms that are “well enough known” by those
in the industry “to correctly apply them.” Weitzenhoff,
35 F.3d at 1289 (citation omitted). Tingley’s “speculation
about possible vagueness in hypothetical situations not
before the Court will not support a facial attack.” Hill,
530 U.S. at 733.
Tingley’s arbitrary enforcement theory for

unconstitutional vagueness also fails. A law is void for
vagueness if it “lack[s] any ascertainable standard for
inclusion and exclusion.” Kashem v. Barr, 941 F.3d 358,
374 (9th Cir. 2019) (internal quotation marks and citation
omitted). Here, the law provides ascertainable standards to
determine what is conversion therapy and what is not
conversion therapy. Psychotherapy practices that seek to
“change behaviors or gender expressions, or to eliminate or
reduce sexual or romantic attractions or feelings toward
individuals of the same sex” constitute conversion therapy.
Wash. Rev. Code § 18.130.020(4)(a). Psychotherapy
practices, however, that “provide acceptance, support, and
understanding of clients” do not constitute prohibited
conversion therapy, nor do practices that facilitate “clients’
coping, social support, and identity exploration and
development that do not seek to change sexual orientation or
gender identity.” Id. § 18.130.020(4)(b). The statute
effectively provides a checklist of practices for “inclusion
and exclusion.” Kashem, 941 F.3d at 374 (citation omitted).
That the law’s injunctive relief provision, Wash. Rev.

Code § 18.30.185, allows “any . . . person” to initiate an
action to enjoin the licensed therapist from practicing
(64 of 73)
conversion therapy does not render the licensing scheme

unconstitutionally vague. The “any . . . person” provision
applies only to injunctive relief. The disciplinary sanctions
are instead governed by § 18.130.080 and § 18.130.165,
which vest the Washington Department of Health, not “any”
person, with responsibilities for enforcement. See also id.
§ 18.130.040 (designating the Department of Health
Secretary as the disciplining authority). Section 18.130.080
provides standards for the Washington Department of Health
to use in determining whether a complaint “merits
investigation.” Section 18.130.160 vests the Department of
Health with the authority to issue an order sanctioning a
license holder, but only after making “a finding, after [a]
hearing.” This provision also tells the Department of Health
what information it may properly consider and what
sanctions are permissible. Wash. Rev. Code § 18.130.160.
Tingley’s contention that § 18.30.185 gives “unconstrained
discretion” to “activists . . . who ideologically oppose [his]
faith and viewpoint” in a way that “multiplies the threat” of
arbitrary enforcement is speculative and contradicted by the
standards provided by the licensing scheme. And even
though section 18.30.185 permits “any” person to initiate an
action for injunctive relief, such a person would still need to
prove the traditional factors for injunctive relief to enjoin a
license holder’s purported conduct; mere disagreement with
someone’s “faith and viewpoint” will not carry this burden.
Washington’s law prohibiting licensed mental health

providers from practicing conversion therapy on minors is
not unconstitutionally vague. By its terms, the law gives fair
notice of what conduct is proscribed to a reasonable person,
and certainly to a license-holding provider with the
specialized, technical knowledge of the psychology
profession. The law contains standards limiting the
discretion of those who will enforce it, and it does not matter
(65 of 73)
that the law allows individuals to initiate actions for

injunctive relief. Because the law “provides both sufficient
notice as to what is prohibited and sufficient guidance to
prevent against arbitrary enforcement,” United States v.
Kuzma, 967 F.3d 959, 970 (9th Cir. 2020), the district court
did not err in dismissing Tingley’s vagueness challenge.
CONCLUSION
Our decision today is controlled by our precedent and

ample reasoning. Tingley has standing to bring his free
speech and free exercise challenges to Washington’s law,
but they cannot proceed under Pickup and Welch. In
addition to being supported by circuit precedent, our
decision to uphold Washington’s law is confirmed further by
its place within the well-established tradition of
treatments. Finally, Washington’s law is not void for
vagueness. We thus affirm the district court’s dismissal of
Tingley’s claims.
AFFIRMED.
BENNETT, Circuit Judge, concurring in part:
I join the majority opinion except as to Part III of the

Discussion section and those portions of the Conclusion that
refer to Part III’s reasoning. Respectfully, I believe that we
should not hypothesize with dicta when our conclusion is
commanded by binding precedent. “As a three-judge panel
of this circuit, we are bound by prior panel decisions . . . and
can only reexamine them when their ‘reasoning or theory’ of
that authority is ‘clearly irreconcilable’ with the reasoning or
theory of intervening higher authority.” Rodriguez v. AT &
(66 of 73)
T Mobility Servs., LLC, 728 F.3d 975, 979 (9th Cir. 2013)
(quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.
2003) (en banc), overruled on other grounds by Sanchez v.
Mayorkas, 141 S. Ct. 1809 (2021)). As we hold in Part II of
the Discussion section, we are bound by Pickup v. Brown,
740 F.3d 1208 (9th Cir. 2014), as to Tingley’s free speech
claim. Part III is therefore unnecessary, including its
discussion of the “long (if heretofore unrecognized) tradition
of regulation governing the practice of those who provide
health care within state borders”—an attempt to meet
NIFLA’s exception for a category of speech warranting
lesser scrutiny. Nat’l Inst. of Fam. & Life Advocs. v.
Becerra, 138 S. Ct. 2361, 2372 (2018). “The ‘cardinal
principle of judicial restraint’ is that ‘if it is not necessary to
decide more, it is necessary not to decide more.’” Midbrook
Flowerbulbs Holland B.V. v. Holland Am. Bulb Farms, Inc.,
874 F.3d 604, 617 n.13 (9th Cir. 2017) (quoting PDK Lab’ys
Inc. v. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir.
2004) (Roberts, J., concurring in part and in the judgment)).
Opinion | I Was Tortured in Gay Conversion Therapy. And It’s Still Lega... https://www.nytimes.com/2018/01/24/opinion/gay-conversion-therapy-t...
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Case: 21-35815, 09/06/2022, ID: 12533380, DktEntry: 81-1, Page 1 of 66

UNITED STATES COURT OF APPEALS

BRIAN TINGLEY, No. 21-35815

EQUAL RIGHTS WASHINGTON,

BRIAN TINGLEY, No. 21-35856

EQUAL RIGHTS WASHINGTON,

Appeal from the United States District Court

Argued and Submitted May 17, 2022

Filed September 6, 2022

Before: Kim McLane Wardlaw, Ronald M. Gould, and

Opinion by Judge Gould;

The panel affirmed the district court’s dismissal of an

Conversion therapy encompasses therapeutic practices

The panel held that Tingley had standing to bring his

that it will enforce the ban on conversion therapy “as it

Addressing the merits, the panel stated that in 2014, this

The panel held that Washington’s licensing scheme for

to protect the “physical and psychological well-being” of its

In addition to being supported by circuit precedent, the

Affirming the dismissal of Tingley’s challenge under the

Finally, Washington’s law was not unconstitutionally

Concurring in part, Judge Bennett joined the majority

by binding precedent. As the panel held in Part II of the

Roger G. Brooks (argued), Alliance Defending Freedom,

Cristina Sepe (argued), Jeffrey C. Grant, and Sierra

Raegen Rasnic, Skellenger Bender P.S., Seattle,

Deborah J. Dewart, Hubert, North Carolina, for Amicus

Charles LiMandri, Paul M. Jonna, and Jeffrey M. Trissell,

Paul M. Sherman, Institute for Justice, Arlington, Virginia,

Shireen A. Barday, Gibson Dunn & Crutcher LLP, New

Tassity Johson, Jessica Ring Amunson, and Jessica

Daniel J. Shih, Susman Godfrey LLP, Seattle, Washington;

Paul F. Rugani, Orrick Herrington & Sutcliffe LLP, Seattle,

Sean M. SeLegue, Arnold & Porter Kaye Scholer LLP, San

GOULD, Circuit Judge:

This appeal requires us to decide, again, whether a state

In 2014, we upheld a substantially similar law enacted

We affirm. Washington’s licensing scheme for health

Conversion therapy encompasses therapeutic practices

The American Psychological Association (“APA”)

“acceptance, support, . . . and identity exploration and

Washington requires health care providers to be licensed

Washington enacted Senate Bill 5722 (“SB 5722”) in

(a) “Conversion therapy” means a regime

sexual orientation or gender identity. The

(b) “Conversion therapy” does not include

Wash. Rev. Code § 18.130.020(4)(a)–(b). The legislature

The legislature’s asserted intent in enacting SB 5722 was

Id. § 1(2). Health Impact Review of SB 5722, a report from

Washington’s law does not prevent health care providers

Tingley has worked as a licensed marriage and family

Tingley sued state officials (“Washington”) in May

The district court granted Washington’s motion to

Tingley appealed, and Washington and ERW cross-

We review de novo questions of standing and ripeness.

pleadings in the light most favorable to Tingley, the non-

We review for abuse of discretion a district court’s

Tingley has standing to bring his claims in an individual

Washington contends that the district court improperly

Amendment claims. But the district court did not err on

Washington also contends that Tingley does not have

constitutional interest, but proscribed by a statute, and there