Virginia Regulatory Town Hall
Department of Health Professions
Board of Counseling
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4/15/19  12:00 pm
Commenter: Mary Louise Serafine, Ph.D., J.D.

Voluntary speech is not "unsafe." Banning it is unconstitutional.

The statement in the Virginia Board's guidance document that "[s]ignificant research by both the American Psychological Association and the American Psychiatric Association substantiates that 'conversion therapy' should be prohibited in that it has the potential to be harmful to patients" is scientific nonsense.  There is no such research that is scientifically valid. Please copy me by email and post these supposed studies to a nationwide forum so that serious scientists can evaluate them.  I have never seen a single one with scientific validity.  The statement itself is hedged, but the larger historical point is that the decline of freedom begins with politically favored views being wrapped in the cloak of science.  This cloak is full of holes.  Legislators need to understand that the American psychological and psychiatric associations are trade associations with a left-wing political agenda, not a scientific one.  Quite possibly the hysteria to have the government impose "bans" on certain ideas about sexuality is far more harmful to young people and adults than any voluntary therapy or counseling---almost exclusively talk therapy---that one might seek.  This is exactly the type of attempted speech and thought control that the constitution protects us against.  For example, holding that the Texas psychology licensing law was in general, on its face, an overbroad infringement of speech, the Fifth Circuit Court of Appeals recently struck down that licensing law, because "[t]he ability to provide guidance about the common problems of life--marriage, children, alcohol, health--is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grandparents, or in a circle of friends. There is no doubt that such speech is protected by the First Amendment."  Serafine v. Branaman, 810 F.3d 354, 369 (5th Cir. 2016).  That is what all therapy does---it provides advice in some form to those who want to hear it.  The case cited above was not about conversion therapy, but more generally about the licensing of speech by psychology statutes.  It should be a call to state legislatures everywhere that banning certain speech-content is unconstitutional. (I was the plaintiff in that case; see  Legislators should see this "ban" for what it is: The gay community wants government to outlaw speech and ideas contrary to its own views; it is starting with therapeutic speech, but it won't end there.  All such legislative bans will be too broad, lumping together any ideas we want to stop people from talking about and calling that speech "conversion therapy," and then associating it with the horrors of a by-gone era.  Certainly all manner of horrors have been committed under the guise of "therapy," especially when involuntary.  These are not being carried out today in out-patient settings and, to the extent they are, such as involuntary drug-use on children and ECT, many of us condemn it, though it continues to be lawful.  In out-patient therapy, if physical pain or sickness is imposed (especially on involuntary or minor patients), the ban should be on use of physical pain and sickness, not on voluntary ideas and speech that the speaker and listener choose for themselves.  Bottom line: Speech and ideas about sexuality reflect the most private of domains.  Any person or private organization should preach about it as they see fit.  Government should stay out of it.  


CommentID: 71410