RE: Reject Proposed “Conversion Therapy” Ban – Guidance Document 85-7

Dear Virginia Board of Medicine:

            Liberty Counsel is a national nonprofit litigation, education and public policy organization with an emphasis on First Amendment liberties. With offices in Florida, Virginia and Washington, D.C., Liberty Counsel is litigating against so called “conversion therapy” bans around the country.

I write to urge the Virginia Board of Medicine to reject Guidance Document 85-7. The Guidance is unconstitutional and laden with inaccuracies. The Guidance bans speech in the form of talk therapy or verbal counseling (erroneously called “conversion therapy”) based on the viewpoint of that counseling. The Supreme Court has not recognized a “professional speech” exception to the First Amendment. (See excerpts from the United States Supreme Court’s June 26, 2018 opinion in Nat'l Inst. of Family & Life Advocates v. Becerra, 585 U.S. ___, 138 S. Ct. 2361 (2018) [hereinafter “NIFLA”], below. See also excerpts from the recent decision striking down a similar speech ban in Vazzo v. City of Tampa, No. 8:17-cv-2896-T-02AAS, 2019 WL 4919302 (M.D. Fla. Oct. 4, 2019), which Liberty Counsel is litigating.

The High Court’s decision in NIFLA reversed Ninth Circuit decisions regarding the so-called Reproductive “Freedom, Accountability, Comprehensive Care, and Transparency” Act (FACT Act). The decision abrogated the central rationales of the Ninth Circuit’s decision in Pickup v. Brown, 740 F. 3d 1208 (9th Cir. 2014), and the similar Third Circuit decision in King v. Governor of New Jersey, 767 F. 3d 216 (3d Cir. 2014), upon which the authors of all state-level “conversion therapy” bans have relied. Liberty Counsel litigated both of these cases.

In NIFLA, Supreme Court Justice Clarence Thomas, writing for the majority, rejected the Ninth Circuit’s analysis of the First Amendment in Pickup and the similar analysis adopted by the Third Circuit in King, as shown by the following excerpts:

Some Courts of Appeals have recognized “profes­sional speech” as a separate category of speech that is subject to different rules. See, e.g., King v. Governors of New Jersey, 767 F. 3d 216, 232 (CA3 2014); Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014) . . . .

Id. at 2373 (emphasis added). Justice Thomas continued:

In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles.

Id. at 2375 (emphasis added).

The Board of Medicine should also consider a recent federal court ruling in the State of Florida striking down the City of Tampa’s functionally identical counseling ban. The Tampa ban prohibited only counseling for minors, and was struck down. The Virginia Board of Medicine’s ban goes further, banning counseling for adults.

The Tampa case was brought by Liberty Counsel, and is summarized below. The ruling has implications for speech bans like Guidance 85-7. As a public interest law firm, Liberty Counsel is monitoring the Board’s speech ban with significant litigation interest.

On October 4, 2019, federal Judge William F. Jung issued an order granting summary judgment to Liberty Counsel in a suit to invalidate the City of Tampa ordinance that prohibited licensed counselors from providing, and minors and their families from receiving, counseling to reduce or eliminate their unwanted same-sex attractions or behaviors, or sexual or gender identity conflicts.

Because the court determined that professional regulations like Tampa’s counseling ban are preempted to the state under Florida law, the court invoked the doctrine of constitutional avoidance to avoid ruling on the ban’s significant First Amendment problems. The court did not avoid, however, making numerous factual findings that gutted the ostensible rationale for Tampa’s ban, which findings are equally relevant to Virginia’s proposed ban:

Although the City expresses confident certitude, the City’s experts, one or both, expressly agreed with the following points: 

• Minors can be gender fluid and may change or revert gender identity. Dkt. 192-2 at 38–40.
• Gender dysphoria during childhood does not inevitably continue into adulthood. Dkt. 192-2 at 85–87.
• Formal epidemiologic studies on gender dysphoria in children, adolescents, and adults are lacking. Dkt. 192-2 at 92.
• One Tampa expert testified there is not a consensus regarding the best practices with prepubertal gender nonconforming children. Dkt. 192-2 at 120–21.
• A second Tampa expert testified consensus does not exist regarding best practices with prepubertal gender nonconforming children, but a trend toward a consensus exists. Dkt. 192-1 at 159.
• Emphasizing to parents the importance of allowing their child the freedom to  return to a gender identity that aligns with sex assigned at birth or another gender identity at any point cannot be overstated. Dkt. 192-2 at 123.
• One cannot quantify or put a percentage on the increased risk from conversion therapy, as compared to other therapy. Dkts. 192-2 at 131; 192-1 at 198–99.
• Scientific estimates of the efficacy of conversion therapy are essentially nonexistent because of the difficulties of obtaining samples following individuals after they exit therapy, defining success, and obtaining objective reassessment. Dkt. 192-1 at 136–37.
• Based on a comprehensive review of this work, the American Psychological Association 2009 SOCE Task Force concluded that no study to date has demonstrated adequate scientific rigor to provide a clear picture of the prevalence or frequency of either beneficial or harmful SOCE outcomes. More recent studies claiming benefits and/or harm have done little to ameliorate this concern. Dkt. 192-1 at 148.
• No known study to date [looking at 2014 article Dkt. 192-6 at 2] has drawn from a representative sample of sufficient size to draw conclusions about the experience of those who have attempted SOCE. Dkt. 192-1 at 149.
• No known study [looking at same 2014 article] has provided a comprehensive assessment of basic demographic information, psychosocial wellbeing, and religiosity, which would be required to understand the effectiveness, benefits and/or harm caused by SOCE. Dkt. 192-1 at 150.
• Although research on adult populations has documented harmful effects of SOCE, no scientific research studies have examined SOCE among adolescents. Dkt. 192-1 at 153.
• With extraordinarily well-trained counseling “in a hypothetically perfect world” it may be an appropriate course of action for a counselor to aid a gender-dysphoric child who wants to return to biological gender of birth. Dkt. 192-1 at 171–72.
• There is a lack of published research on efforts to change gender identity among childhood and adolescents. Dkt. 192-1 at 177.
• As of October 2015 no research demonstrating the harms of conversion therapy with gender minority youth has been published. Dkt. 192-1 at 180–81. In 2018 an article was published on youth but causal claims could not be made from that 2018 report. Dkt. 192-1 at 181.” 

As the citations above show, the City’s highly-credentialed experts, one or both, expressly agreed with the above bullet points.

Vazzo, 2019 WL 4919302, at *13–14 (emphasis added).

 Liberty Counsel trusts the decisions in NIFLA and in Vazzo v. City of Tampa will be informative to the deliberations of the Virginia Board of Medicine. Liberty Counsel requests that the Board reject Guidance 85-7.

                                                            Sincerely,

                                                          /s/

                                                         Richard L. Mast                            

                                                         Liberty Counsel