Agencies | Governor
Virginia Regulatory Town Hall
Agency
Department of Health Professions
 
Board
Board of Counseling
 
chapter
Regulations Governing the Practice of Professional Counseling [18 VAC 115 ‑ 20]
Action Unprofessional conduct - conversion therapy
Stage Proposed
Comment Period Ends 10/30/2020
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Previous Comment     Back to List of Comments
10/30/20  12:37 pm
Commenter: Todd Gathje, Ph.D., The Family Foundation

Support Biologically Affirming Counseling
 

The Family Foundation is deeply concerned about this regulatory action that would prevent licensed practitioners to have conversations to help a minor patient overcome unwanted sexual desires or to feel comfortable in their own body.  Therefore, we believe it’s important that this board understand some of the inherent problems with this policy and its ultimate consequences.

 

First, and foremost, Virginia law makes clear that parents, not the government and its regulatory agencies, have a “fundamental right to make decisions concerning the upbringing, education, and care of the parent's child,”, which includes seeking counseling that is consistent with their values and their judgement about their child’s best interests.  However, by prohibiting licensed professionals from simply talking about these issues, this regulatory action excludes an otherwise viable option for parents and their children to pursue.  

 

Second, the law passed by the 2020 General Assembly along with this regulatory action expressly allows a licensed professional to promote the transgender lifestyle, including hormone treatments and surgery.  It states: "Conversion therapy" does not include – meaning these things are not prohibited - counseling that facilitates a person's coping and identity exploration and development.   It prohibits licensed professionals from helping kids resolve confusing or unwanted feelings about their identity by simply engaging in talk therapy with them in a way that affirms their biological and genetic characteristics. 

 

Moreover, the law, and this proposed regulation, actually promotes so-called “conversion therapy” because it will permit a licensed professional to encourage a boy or girl to explore or affirm their unnatural and often unwanted same-sex attractions or to undergo the process of changing their physical bodies and to present as the opposite sex.

 

Third, there are serious mental and physical health concerns that we cannot and must not overlook if licensed professionals are only allowed to encourage patients to expand their sexuality, and even to undergo physical bodily changes in order to look more like the opposite sex.  This policy proposal comes at a time when young teens are being overwhelmed with what could only be described as a sexual revolution in our culture.  And it shouldn’t be shocking that the number and also the suicide rates of children who struggle with unwanted sexual desires or gender dysphoria are on the rise.

 

A corrected 2019 study in the "American Journal of Psychiatry" also that found that transgender surgeries offer no mental health benefits for those who receive them.  If this will not make a person happier or provide mental health benefits, should a licensed health professional then be allowed to encourage a child to embrace these transgender feelings even to the point of hormone treatment or mutilating the bodies they were born in, let alone be prohibited from encouraging that child to embrace the body they were born with?

 

To subject a licensed professional to disciplinary action for working with a willing client using talk therapy to overcome same sex desires, or the desire to project a new identity of the opposite sex, but not apply the same disciplinary action should their ideologically-based opinions lead to serious outcomes like suicide or more mental anguish after going through medical treatments, is hypocritical and frankly outrageous.

 

Finally, this proposed action will violate the constitutionally-protected free speech rights of health professionals willing to help those who are struggling with their sexuality by implementing viewpoint-based restrictions, or more commonly “viewpoint discrimination.”  Viewpoint discrimination is clearly evident in the law and the draft regulation before this board.

A prohibition on some talk therapy but not others is a complete double standard.  It doesn’t actually prohibit licensed professionals from engaging in any sexual orientation or gender identity change efforts requested by a patient; indeed, it gives licensed professionals the ability to encourage and support patients to explore their sexuality in various ways, and even to undergo physical bodily changes in order to look more like the opposite sex. However, the same counselor would now be prohibited from encouraging a minor to accept their biological sex. Those who do could face the loss of their professional license.

 

Recently, the U.S. Supreme Court rejected this type of restriction on professional speech in NIFLA v. Bacerra, which struck down a California law that forced certain speech requirements on pro-life pregnancy centers.  In his majority opinion, Justice Thomas stated that “states  cannot  choose  the  protection  that  speech  receives  under  the  First  Amendment,  as  that  would  give  them  a  powerful  tool  to impose  “invidious  discrimination  of  disfavored  subjects.” 

 

Justice Kennedy made an even more compelling and forceful admonition of viewpoint discrimination in his concurring opinion, opining that the California law “is  a  paradigmatic  example  of  the  serious  threat  presented  when  government  seeks  to  impose  its  own  message  in  the place  of  individual  speech,  thought,  and  expression” ...  and that it “compels  individuals  to  contradict their  most  deeply  held  beliefs,  beliefs  grounded  in  basic philosophical,  ethical,  or  religious  precepts,  or  all  of  these.” In that case, the Supreme Court actually reversed several similar bans on so-called “conversion therapy.”

 

We should expect that any regulatory action that subjects licensed health professionals to misconduct for engaging in this form of speech would receive the same judicial treatment.

Fort these reasons, we are notifying this board that this regulatory language is wholly inconsistent with the Constitution, and will thus be ripe for a legal challenge if you approve it.

CommentID: 87407