Dear Virginia Board of Counseling,
The Virginia Catholic Conference is the public policy agency representing Virginia’s Catholic bishops and their two dioceses. The Conference urges the Board of Counseling to reject the draft “Guidance Document on the Practice of Conversion Therapy (115-10).” If implemented, 115-10 would usurp the primary and fundamental role of parents, violate First Amendment rights, and exceed regulatory authority.
Role of parents
Healthcare decisions involving the mental and emotional health of children do not fit neatly into “one-size-fits-all” regulations. Parents are closest to their children’s challenges. They know their unique needs and are in the best position to identify solutions. Some young people may have attractions they desire to change or moderate. Others may simply desire counseling to live a chaste life compatible with their religious or personal values. In either instance, there should be options available for families to make informed decisions.
Just as parents must give consent for over-the-counter medications, field trips, and extracurricular activities, they have the constitutional right to guide mental health care for their children.
The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
115-10 also violates the presumption of parental autonomy in Virginia. Code Sec. 1-240.1 provides that a parent has the fundamental right to make decisions concerning the upbringing, education and care of the parent’s child.
Families should also be free to make these decisions in private consultation with their child’s counselor.
The First Amendment prohibits the government from favoring one viewpoint over another.
[T]he government has no power to restrict expression because of its message, its ideas, its subject matter or its content…. [T]he requirement that the government be content neutral in its regulation of speech means that the government must be both viewpoint neutral and subject-matter neutral. The viewpoint-neutral requirement means that the government cannot regulate speech based on the ideology of the message.
115-10 defines “conversion therapy” or “sexual orientation change efforts” as any practice or treatment that seeks to change an individual’s sexual orientation…or eliminate or reduce sexual or romantic attractions or feelings toward individuals of any gender. Because it seeks, for example, to prohibit the provision of licensed services to help clients achieve alignment between their subjective sense of gender and their objective biological sex while permitting services to assist clients towards a subjective sense of gender at odds with their objective biological sex, it is neither content nor viewpoint neutral. In addition, 115-10 would allow those who provide services to assist clients in directing their attractions in one direction but not in the other direction.
Document 115-10, therefore, gives the Board sweeping authority to sanction counselors’ speech and engage in unconstitutional viewpoint discrimination.
As applied to faith-based, licensed counselors, 115-10 also would result in censorship of religious beliefs in violation of the First Amendment.
To comply with 115-10, these counselors must terminate or self-censor any conversation with a client that may tend toward reducing same-sex attraction, regardless of the client’s or family’s desire to seek counsel. Because of this, 115-10 would also impermissibly restrict a patient’s First Amendment freedom to speak candidly about intimate concerns and to receive counsel.
Ethics rules should be enforced and frequently examined for effectiveness and uniformity across all professions. They should also not be applied in ways that are biased to favor certain viewpoints or to target others for sanction. At a minimum, speech must be protected.
Conversely, 115-10 sets a double standard. It does not, for example, sanction dangerous treatments to accelerate “gender transition” among children, e.g., through irreversible surgery or hormonal treatments.
Exceeding regulatory authority
For reasons such as those explained above, the General Assembly has rejected legislation to ban “conversion therapy.” In 2016, the legislature rejected three such bills in committee: (SB 262 and SB 267, Senators Surovell and Dance; and HB 427, Delegate Hope) that would have prohibited “conversion therapy” on persons under 18 to change sexual orientation or gender identity.
Similarly in 2018, the General Assembly rejected two bills (HB 363, Delegate Hope; SB 245 Senator Surovell) which would have prohibited counselors from providing any treatment to those under 18 which would seek to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. Nearly identical to 115-10, these bills were also defeated in committee.
Administrative agencies can adopt rules and policies to carry out duties delegated by the legislature. The rules and policies, however, should be consistent with statutory provisions. The General Assembly has specifically and repeatedly rejected proposed “conversion therapy” bans. The Board does not have the authority to adopt 115-10 because doing so would circumvent the General Assembly’s decisions in this matter.
Accordingly, the Virginia Catholic Conference urges the Board of Counseling to reject 115-10.
Virginia Catholic Conference
 Pierce v. Society of Sisters, 268 U.S. 510 (1925). See also Wisconsin v. Yoder (1972).
 Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech in the Supreme Court’s Application, Southern California Law Review, Vol. 74: 49, 51 (2000). Citing Police Dep’t. v. Moseley, 408. U.S. 92, 95 (1972).
 Mobil Oil Exploration & Producing Southeast v. United Distrib. Cos., 498 U.S. 211 (U.S. 1991)