Exploring LGBT Diversity: A Different Perspective on Counting to Four

Tingley v. Ferguson presented the question of whether a prohibition on conversion therapy violates the Free Speech and Free Exercise Clauses. Washington law prohibits any conversations that might encourage “change [of] an individual’s sexual orientation or gender identity,” while allowing conversations that “support … identity exploration” and “do not seek to change sexual orientation or gender identity.” The Tingley petition was filed nearly a year ago in March 2023. There was a square circuit split on the issue between the Ninth and Eleventh Circuits. Yet Washington didn’t even file a BIO. A response was requested on May 5, 2023. The case was then distributed for the September 26, 2023 conference, but the Court took no action. The case was relisted seven times, and rescheduled before the December 1 conference.
Today, at long last, the Court denied the petition. Justice Kavanaugh would have granted the petition, and Justices Thomas and Alito wrote dissents from the denial of certiorari. Alito noted that given the circuit split, “this case easily satisfies our established criteria for granting certiorari.” But there was no fourth vote. Given that there were three noted votes for certiorari, we can presume one more vote would have been enough to grant the case. In most cases, where Justices Thomas and Alito complain that a case is not granted, Justice Gorsuch is right on board. But he was silent here. Should we be surprised? Nope.
After last term concluded, I drew a line across the arc of Gorsuch’s jurisprudence with respect to gay, lesbian, and transgender issues: Kastl v. Maricopa County Community College DistrictIdaho Department of Correction v. Edmo, Gloucester County School Board v. Grimm, Kincaid v. Williams. On these issues, at least, his approach is consistent: The LGBT litigant prevails. Tingley presents something of the reverse: the government prevailed, while the litigant challenging the LGBT position lost. But the outcome is the same.
Let me lay down a marker. When a case about prohibiting gender surgery for minors reaches the Court, Justice Gorsuch will rule against the government. And I suspect Justice Barrett will be with him. We’ll see if they prove me wrong.