Virginia Regulatory Town Hall
Department of Health Professions
Board of Counseling
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4/9/19  4:08 pm
Commenter: Josh Hetzler, Legislative Counsel for The Family Foundation of Virginia

Unlawful Prior Restraint on Speech

I write to express The Family Foundation of Virginia's opposition to the Board of Counseling's proposed Guidance Document 115-10. Such guidance will not only cause numerous ethical and moral harms to professionals, and developmental harms to children, but it is at odds with the laws of Virginia and the Constitution of the United States. 

As a general matter, the Virginia Code expressly provides that parents, not the government and its regulatory agencies, have a “fundamental right to make decisions concerning the upbringing, education, and care of the parent's child.” Va. Code § 1-240.1 However, the effect of this Guidance Document would unduly limit the right of parents to make decisions concerning the upbringing, education, and care of their child by preventing them from getting them the help they and their child need and desire.

Virginia’s constitution declares that “the right to be free from any governmental discrimination upon the basis of religious conviction . . . shall not be abridged[.]” Constitution of Virginia, Article 1, Section 11 (Bill of Rights). This Guidance Document would directly discriminate against Christian, Jewish, and Muslim health professionals who maintain, as a fundamental tenet of their faith, that human beings are created by God as either male or female and that human sexuality is only properly expressed between a man and a woman in the context of marriage. Such a conception of human sexuality reflects the historical, conventional, and orthodox views of these major faith traditions, and has transcended cultures and boundaries for millennia. Denying licensed psychologists through this policy the right to acknowledge this while acting in their professional capacity subjects them to "discrimination on the basis of religious conviction," and thus runs afoul of one of Virginia’s most basic constitutional guarantees.

The Board's policy as expressed in this proposed Guidance Document would also be unconstitutional in light of the U.S. Constitution because it would infringe on the free speech rights of professional counselors by prohibiting them from speaking certain messages (or, if not strictly prohibiting it, then by significantly "chilling" their free speech). In 2018, the U.S. Supreme Court rejected the state of California’s claim that so-called “professional speech” receives less First Amendment protection than ordinary speech, stating that: “This Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’” National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361, 2371-72 (2018).

The Supreme Court's opinion highlighted three cases – two of which involved state bans on so-called “conversion therapy” for minors – as being erroneously decided for holding that counseling was afforded less constitutional protection as a matter of free speech. As a result, the lower court cases upholding bans on “conversion therapy” were effectively overruled. Because this policy would have the direct and immediate effect of censoring the protected speech of health professionals in Virginia, it would not likely survive a legal challenge. If this Board does go forward with such a violation of free speech, it should expect such a challenge. 

Effectively prohibiting the practice of so-called “conversion therapy” among licensed counselors, as the draft Guidance Document defines that term, goes too far in its attempt to address the hypothetical concerns some have raised. (It is worth noting that no known complaint has ever been received by any of the health regulatory boards concerning "conversion therapy.") As the term is now over-broadly and vaguely defined, it “compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.” NIFLA v. Becerra, 138 S. Ct. 2361, 2379 (Kennedy, J., concurring).That is something this Board may not do.

The Supreme Court in NIFLA cautioned that “when the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” Id. at 2374 (quoting McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014)). There are significant disagreements about the merit of therapies which help a young person resolve, and in many cases by reversing (read testimonies of many for whom this happened at their unwanted sexual attractions or gender confusion. These disagreements should be settled in the marketplace of ideas and according to the wishes of the minor and his or her parents. The effect of this regulation, however, would only be to silence unpopular ideas and suppress information.

We urge this Board to heed the U.S. Supreme Court’s words when it observed that “‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’ and the people lose when the government is the one deciding which ideas should prevail.” Id. at 2375 (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)).

CommentID: 71055