Dear Virginia Board of Medicine,
Stop all attempts to exceed your authority and reject the vague and broadly worded Guidance Document (85-7) that seeks to prohibit “any practice or treatment that seeks 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 any gender.”
Such a regulatory ban would infringe:
Role of parents
All families should be free to seek medical counseling toward the resolutions they desire.
Parents, who are closest to their children’s challenges, know their needs and are in the best position to identify solutions. Just as parents must generally give consent for over-the-counter medications,[1] field trips, and extracurricular activities, they have a constitutional right to guide healthcare decisions for their children.[2]
85-7 will violate Virginia law governing parental rights. 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.
The Board has no authority to override the fundamental right of parents and to adopt rules that would censor constitutionally protected counseling discussions between families and their child’s doctor.
First Amendment
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.[3]
Because 85-7 seeks 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, the guidance document would permit assisting clients in directing their attractions in one direction but not in the other direction.
Document 85-7, therefore, would authorize the state to engage in unconstitutional viewpoint discrimination and would set a double standard. It does not regulate the advocacy of dangerous treatments to accelerate “gender transition” among children, e.g., through irreversible surgery or the use of hormonal drugs.
Unlike the bans adopted by the boards of Psychology, Counseling, and Social Work that implicated the counseling of children, your would censor counseling (or therapy) with minors and adults if it does not affirm an individual’s “sexual orientation or gender identity in any direction.”
No board of medicine in the U.S. has adopted a ban on such counseling with children, much less with adults. Moreover, the Board has not cited a single complaint to warrant this change.
85-7 will invite a federal lawsuit like those filed in Florida, Maryland, and New York. The First Amendment suits in Florida and Maryland challenged bans involving children and are currently before the U.S. Court of Appeals for the Fourth Circuit.
In October, a federal court struck down a municipal ban in Tampa Bay.[4] There, a therapist challenged an ordinance that barred therapy by medical professionals that “seeks to assist a minor patient in a goal to change gender expression or to change sexual orientation/attraction.” The Court cited numerous conflicts with controlling Florida law, including parental choice in healthcare.
In January, Christopher Doyle, a licensed professional counselor, filed suit to block Maryland’s 2018 law. After a federal court dismissed the challenge, he appealed citing the U.S. Supreme Court decision in NIFLA v. Becerra that rejected the notion that states can single out the speech of licensed professionals for lesser protection under the First Amendment.
In New York City, a Jewish psychotherapist asked a federal court in June to halt enforcement of a 2017 ordinance on the ground that it violated his freedom of speech and infringed his and his patients’ religious freedom.[5] It was the first and only ban in the nation to censor talk therapy involving willing adults (like 85-7). In response to the lawsuit, the council voted unanimously to repeal the ban.
Exceeding regulatory authority
For reasons such as those above, the General Assembly has rejected legislation to prohibit therapy to change a minor’s sexual orientation or gender identity. In 2016, the legislature rejected three such bills in committee: (SB 262 and SB 267, Senators Surovell and Dance; and HB 427, Delegate Hope).
Similarly, in 2018, the General Assembly rejected two bills (HB 363, Delegate Hope; SB 245 Senator Surovell). Analogous to 85-7, these bills were defeated in committee.
Administrative agencies can adopt rules and policies to carry out duties delegated by the legislature. Such regulations, however, should be consistent with statute.[6] The General Assembly has repeatedly rejected proposed bans. You do not have the authority to adopt 85-7 because doing so would circumvent the General Assembly’s decisions in this matter.