Introduction and Overview
To what extent are mental health providers restricted from counseling patients and clients about sexual orientation matters? Under Illinois law, specific limits apply to certain licensed professionals, but not expressly to clergy.
On August 20, 2015, former Illinois Governor Bruce Rauner signed into law the “Youth Mental Health Protection Act”, the stated purpose of which is to "protect lesbian, gay, bisexual, and transgender youth from sexual orientation change efforts [SOCE], also known as conversion therapy.” The law, now codified at 405 ILCS 48/1, et seq. “Act”, provides that “[u]nder no circumstances shall a mental health provider engage in sexual orientation change efforts with a person under the age of 18.” The fact that a provider may believe that such efforts are therapeutic, helpful to a patient, and otherwise good is of no legal consequence.
The Act forbids “sexual orientation change efforts,” which is defined to expressly include “efforts to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex.” This phrase expressly excludes “counseling or mental health services that provide acceptance, support, and understanding of a person without seeking to change sexual orientation or mental health services that facilitate a person's coping, social support, and identity exploration and development.” In other words, providers are not to help patients or clients change their actions or beliefs; the providers must instead affirm and accept them as immutable. Under the Act, “mental health providers” are defined to include clinical psychologists, school psychologists, psychiatrists, social workers, marriage and family therapists, and licensed professional counselors.
Illinois is not alone in enacting bans on conversion therapy. According to the Movement Advancement Project, eighteen states plus the District of Columbia currently have laws banning conversion therapy for minors. Numerous counties and municipalities have enacted similar laws. The laws generally provide that a practitioner who engages in the banned practice be considered to have engaged in unprofessional conduct and “be subject to discipline by the licensing entity or disciplinary review board with competent jurisdiction.” (405 ILCS 48/30). A violation of the ban thus could result in loss, or a threat of loss, of a provider’s professional licensing as determined within the licensing agency’s discretion.
Particularly given the professional stakes involved, these legal bans create complicated legal, ethical, and practical issues for faith-based counselors, counseling center workers, and other mental health providers. Why? Christians, Muslims, Jewish persons, and other religious adherents may follow religious teachings about sexual orientation and gender identity that affirm sexual orientation change efforts (SOCE). Consequently, they may seek to provide or receive counseling banned by these statutes, leading to a clash between their religious beliefs and applicable legal requirements. Still others may have non-religious conscience objections to complying with such requirements. This article explores the legal issues surrounding SOCE legislative bans and provides related recommendations for those who may wish to engage in SOCE-related therapeutic practices.
Legal Framework
Brief Primer on Legal Standards of Review
When it comes to questions of fundamental and constitutional rights as raised by the SOCE ban, the outcome may be determined at least in part by the courts’ standard of review. For laws regulating conduct that incidentally affects speech, courts are inclined to apply “rational basis” review. Under this highly deferential standard, a law will be upheld if it bears a rational relationship to a legitimate state interest. Next on the spectrum is “intermediate scrutiny” which courts apply to laws affecting specific kinds of speech including “commercial speech” (such as advertising) and certain other types of “professional speech.” Under this standard, speech prohibitions are permissible when they directly advance a substantial government interest and are no more extensive than necessary. The least deferential standard of review and the most difficult for the government to meet is strict scrutiny. Strict scrutiny applies to traditional First Amendment freedom of speech questions that do not involve special categories of speech.
Survey of Recent Conversion Therapy Ban Legal Challenges
Several lawsuits have been filed to challenge conversion therapy bans, with varying outcomes depending significantly on the specific court and its chosen level of legal review.
Pickup v. Brown is a 2014 decision by the federal Ninth Circuit Court of Appeals involving SOCE practitioners’ challenge to California’s ban on SOCE with patients under eighteen years of age. In Pickup, the court held that California’s ban on SOCE counseling regulated conduct, not speech, and applied rational-basis review to the ban. Finding that the law bore a rational relationship to a legitimate state interest (protecting the well-being of minors), the court denied a preliminary injunction seeking to preclude enforcement.
In King v. Governor of New Jersey, another 2014 decision but in the federal Third Circuit Court of Appeals, a challenge was raised against New Jersey’s law banning SOCE and was brought by counselors and organizations (on behalf of themselves and their patients) who provide or seek to provide SOCE counseling to reduce or eliminate same-sex attractions. The court in King disagreed with Pickup. The appellate court held instead that SOCE counseling was speech, not conduct, and thus it was entitled to greater First Amendment protection. But then the court qualified its ruling by characterizing the speech in question as “professional speech” and therefore subject to only intermediate scrutiny. The court held that the law satisfied this standard based on evidence that the State Legislature relied on substantial evidence when passing the ban, as well as its finding that the plaintiffs provided no viable alternatives for how the state could protect the minor patients.
Vazzo v. City of Tampa was filed on behalf of a Christian counseling center in Tampa Bay, Florida, to challenge the City’s SOCE ban. In January 2019, a court magistrate recommended granting a partial preliminary injunction in the counseling center’s favor, enjoining enforcement of the City of Tampa’s ordinance. Applying a strict scrutiny standard, the magistrate judge determined that the City of Tampa has a compelling interest, namely, to protect the psychological well-being of minors, but that the ordinance was not narrowly tailored to achieve that interest, as strict scrutiny requires. Specifically, the City failed to consider reasonable alternatives such as a ban only on involuntary counseling or a requirement of informed consent.[1] The ordinance was therefore ruled unconstitutional. The case is now pending before Judge William Jung on the U.S. District Court for the Middle District of Florida.
Vazzo relied on the U.S. Supreme Court’s 2018 decision, National Institute of Family and Life Advocates (NIFLA) v. Becerra, which recognized professional speech as a separate category of speech subject to intermediate scrutiny only in certain, narrow contexts. NIFLA is an important constitutional free speech case. In NIFLA, the U.S. Supreme Court held unconstitutional a California law requiring pregnancy centers to post a notice advising patients of the State’s free or low-cost provision of abortions. NIFLA held that professional speech was subject to intermediate scrutiny only in the very limited contexts of commercial speech and professional conduct that incidentally involves speech. As such, NIFLA abrogated Pickup and King to the extent those cases held that “professional speech” may generally be subject to greater government regulation than “non-professional speech,” which receives the highest level of First Amendment protection. However, NIFLA left unanswered whether the conversion therapy bans implicated in Pickup and King were regulations of “conduct” that perhaps have an incidental effect on speech (and hence subject to intermediate scrutiny), or regulations of speech deserving full First Amendment protection.
Finally, in Schwartz v. City of New York, a counselor and psychotherapist challenged New York City’s total ban on SOCE counseling for patients of all ages. A New York City Councilman who supports the ban and is himself gay introduced a bill in mid-September to repeal the ordinance. This is likely in recognition of New York City’s ordinance’s significant weakness, in limiting adult rights. The full City Council is expected to vote on and approve the repeal in the coming weeks.[2]
On Police Powers and Public Welfare
These cases share some similarity with numerous lawsuits seeking to protect the freedom of expression of cake-bakers, wedding photographers, and other artists and service providers. They all involve objections to being required to provide services in a manner that conflicts with their religious beliefs, resulting in infringement of their First Amendment freedom of speech, expression, and free exercise of religion rights. Additionally, the conversion therapy bans and the cases challenging them raise legal issues regarding the extent of the state’s permissible “police powers” and parents’ rights with respect to their own minor children.
In the realm of municipal law, “police powers” do not necessarily involve the police. Rather, they involve government regulation of public activity for the promotion of general safety and welfare. For example, states can (and do) require doctors and lawyers to be licensed and can (and do) censure those who practice without one. Similarly, states can regulate the actual practice of medicine, law, and other professions for the sake of general welfare. In the medical and mental health fields, states have the right to regulate the types of treatment patients can receive when the treatments in question may endanger the public welfare. The extent of this right and the extent to which courts should defer to a state’s judgment are sources of a great deal of debate and litigation. As a general principle, the more a state or municipality’s exercise of its police powers infringes the fundamental and constitutional rights of citizens, the more courts will question the exercise of those powers.
With respect to SOCE bans, both supporters and critics of conversion therapy unsurprisingly view its effect on the public welfare differently, with supporters highlighting the dangers and opponents pointing to the lack of supporting evidence. Also unsurprising is that the more progressive western and northeastern states have led the way in outlawing SOCE, with the more traditionally conservative southern and midwestern states being slower to adopt the bans.[3] States adopting the bans rely heavily on statements and reports by professional groups such as the American Psychological Association, the American Psychiatric Association, and the American Medical Association, all of which oppose SOCE. The views of these groups are strongly contested, as illustrated in recent lawsuits.
Legal Issues
Against this legal framework and status of various lawsuits, here are some legal issues with which faith-based counselors and other mental health providers might be confronted.
Is psychotherapy, and gender-conversion therapy in particular,“speech” or “conduct”? For now, the legal answer is, “It depends on where you live.” If you live in the Ninth Circuit (encompassing all of the Pacific Time Zone plus a few states), SOCE therapy is considered conduct, rather than speech, and hence subject only to rational basis review. If you live in the Third Circuit (encompassing Pennsylvania, New Jersey, and Delaware), it is considered speech, and thus more likely to be protected. If you live in the Eleventh Circuit (encompassing Florida, Alabama, and Georgia), it is probably also deemed speech.
If it is “speech”, what kind of speech is it and what level of protection will it receive? Again, for now, the answer is, “It depends on where you live.” If you live in the Third Circuit, it is deemed professional speech and intermediate scrutiny applies. If you live in the Eleventh Circuit, at least one judge believes it is not the type of speech to which intermediate scrutiny applies, therefore strict scrutiny applies.
How much room do states and municipalities have under their “police powers” to regulate what they perceive to be harmful counseling practices such as SOCE? This is a very difficult question, on which courts will likely disagree. Much also depends on the specific recitations in a state’s law. Most state laws will likely meet the standard for rational basis review. Courts applying intermediate scrutiny to the review of SOCE bans could likely reach different results. Courts applying strict scrutiny will likely strike down the laws as content-based regulations on speech which are not narrowly tailored to meet a compelling governmental interest. Unfortunately, this array of possibilities creates significant uncertainty for counselors who need to know what is in and out of bounds.
To what extent can mental health providers assert the rights of their patients? Generally, one can assert the rights of another in court only when the one on whose behalf rights are asserted is unable to assert their own rights. In King v. Governor, the court held that the plaintiffs had shown no reason why their patients, who included minors, were unable to assert their own rights and challenge the New Jersey law directly, rather than through their counselors. Other courts might rule differently, but this could prove a difficult argument to win.
To what extent do SOCE bans violate the rights of parents? Of the cases litigated so far, only Pickup v. Brown addressed the rights of parents. In that case which applied rational basis review, the Court stated, “the ban did not infringe on the fundamental rights of parents because parents do not have the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.” Other courts applying a different standard of review might rule differently or attach greater weight to the rights of parents. However, it is hard to predict how a court might rule, again creating uncertainty for parents who might seek this counseling for their children.
Following Through
Taking these legal issues into account, here are recommended steps for counselors, other mental health providers, clients, and their families who may be interested in practicing or receiving SOCE.
Step 1: Know the Law! It is essential that providers be aware of laws that might proscribe such counseling, if they want to engage in therapy that seeks to affirm an individual in his or her biological sex. For example, the counseling in question is illegal in Illinois. However, it is not illegal in the neighboring states of Indiana and Wisconsin (except in municipalities in those states that have enacted their own laws). Parents must also be aware of the laws in the states where they live if they seek to obtain SOCE counseling for their children, or the children seek it themselves.[4]
Step 2: Creative Compliance. In some states, if a counselor or other mental health provider is confronted with a client or patient who asks for help aligning with their biological sex, the best approach might be to refer the patient (or the patient’s parents) to a pastor or clergy member who generally do not fall under the bans. Parents or counselors could also seek, or refer patients to, counselors in a neighboring state or municipality where the counseling is not prohibited.
Step 3: Proceed Carefully with Appropriate Counsel. If a provider or patient feels a law to which they are subject violates their rights or their patient’s needs and wishes to challenge it, they should proceed very carefully. There is a good deal of uncertainty on the legal front at this point, which may require a U.S. Supreme Court decision to resolve.[5] Furthermore, as long as the laws remain in force, that they might be unjust, unequitable, or even unconstitutional will not stop a counselor who violates an enacted law from being fined or potentially losing his or her license. All actions to challenge laws already in place should be taken very carefully and with legal counsel close at hand. Nevertheless, there are reasonable arguments why the bans on SOCE are unconstitutional and violate the rights of counselors, clients, and the parents of minor clients, illustrated by the above cases currently working their way through the courts. These cases warrant close watching.
Conclusion
Current SOCE bans that are in effect in many states and municipalities present complicated legal, ethical, and practical issues for mental health professionals, their clients, and the parents of minor clients. Leaders of faith-based counseling centers, counselors, and others seeking to engage in SOCE-related therapy should know the laws in their jurisdiction. To the extent they seek to provide or receive such counseling in jurisdictions where the law prohibits it, they should proceed very carefully, with guidance from legal counsel, and mindful of significant professional disciplinary risks for noncompliance.
[1] Liberty Counsel filed another case on behalf of a Christian licensed professional counselor challenging Maryland’s ban on SOCE counseling. (Doyle v. Hogan, 19 CV00190, District of Maryland). The Court granted the State’s Motion to Dismiss on September 23, 2019. Liberty Counsel has stated its intention to appeal to the Fourth Circuit Court of Appeals. (See https://lc.org/newsroom/details/092319-judge-ignores-scotus-in-md-counseling-ban-opinion-1
[2] The New York State law prohibiting SOCE counseling for minors remains in effect.
[3] A map of states that have enacted SOCE bans is identical to the map of states that voted Democratic in the 2016 Presidential election with the exception of two states, Virginia and Minnesota, neither of which has enacted a SOCE ban.
[4] Notably, currently no laws affect how parents instruct or counsel their own children in this regard. Indeed, such a law would seem to far exceed a state’s appropriate exercise of its police powers and impede the fundamental rights of parents to raise their children.
[5] The U.S. Supreme Court denied petitions for writ of certiorari to review decisions in both Pickup v. Brown and King v. Governor of New Jersey.
