I write to express The Family Foundation of Virginia's opposition to the Board's proposed regulation to penalize the process of so-called "conversion therapy." Such a regulation will not only trigger numerous ethical and moral harms upon licensed professionals and many developmental harms to children, but it is overtly 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, possess a “fundamental right to make decisions concerning the upbringing, education, and care of the parent's child.” Va. Code § 1-240.1 The effect of this regulation, however, would directly and profoundly diminish Virginia parents' ability to make decisions concerning the upbringing, education, and care of their child by denying them the option of obtaining the help their child may 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 regulation would directly discriminate particularly against Christian, Jewish, and Muslim professionals licensed by the Board who maintain, as a fundamental tenet of their well-established 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. This view of human sexuality reflects the historical, conventional, and orthodox beliefs of these major faith traditions, and has transcended cultures and boundaries for millennia. Denying licensed professionals through this policy their ability to hold these convictions while acting in their professionally licensed capacity directly subjects them to "discrimination on the basis of religious conviction," and thus violates of one of Virginia’s most basic constitutional guarantees.

The Board's policy as expressed in this proposed regulation would also be unconstitutional under the U.S. Constitution because it would infringe on the free speech rights of professionals licensed by this Board by prohibiting them from merely speaking certain messages with which the Board (i.e. the government) disfavors. 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 effectively censor the protected speech of licensed professionals in Virginia (including otherwise ordinary talk therapy), it would not likely survive a legal challenge. If this Board does go forward with such a blatant violation of licensed professionals' constitutionally protected free speech, it should expect numerous legal challenges. Moreover, the Board should be aware that if and when such Plaintiffs prevail in those legal challenges on constitutional grounds, the Board will most likely be required to pay the Plaintiffs' attorneys fees.  

Forbidding the practice of so-called “conversion therapy” (i.e. talk therapy) to licensed professionals, as the Board's recently adopted Guidance Document defines that term, goes much too far in its attempt to address the purely 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 what it defines as "conversion therapy," a fact established by consensus during VDH's initial 2018 brainstorming meeting on this topic with representatives of at least five health regulatory boards.) As this 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.” See NIFLA v. Becerra, 138 S. Ct. 2361, 2379 (Kennedy, J., concurring). That is something this Board has no authority to do.

The U.S. 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 clearly significant disagreements about the merit of therapies which seek to help a young person resolve, and in many cases by reversing their unwanted sexual attractions or gender dysphoria (read many inspiring and true testimonies of people for whom this happened at https://changedmovement.com/.) 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, suppress information, and prevent much-needed help for those earnestly seeking it.

We urge this Board to heed the words of the U.S. Supreme Court in NIFLA 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)).