NYC to Drop 'Conversion Therapy' Ban after Jewish Therapist Mounts Legal Challenge
New York City will act swiftly to repeal a ban on psychotherapy to address unwanted same-sex attraction, New York City Council Speaker Corey Johnson announced last week. Johnson, who is himself gay, insisted that he would rather not repeal the "conversion therapy" ban, but he insisted that a legal challenge forced his hand.
"Obviously I didn’t want to repeal this. I don’t want to be someone who is giving in to these right-wing groups," Johnson told The New York Times. "But the Supreme Court has become conservative; the Second Circuit, which oversees New York, has become more conservative. We think this is the most responsible, prudent course."
The law, enacted in December 2017, prohibited psychotherapists from charging patients for "services intended to change a person's sexual orientation or gender identity." Therapists would be fined $1,000 for each violation.
In January, Dr. David Schwartz, an Orthodox Jewish therapist based in New York, filed a legal challenge to the bill. The lawsuit attacked the ban on free speech and religious freedom grounds, condemning it as "the Counseling Censorship Law." The New York City Council reportedly put out bulletins seeking anonymous complainants. Schwartz faced a threat of up to $10,000 in fines.
Alliance Defending Freedom (ADF) is representing Schwartz. In a statement to PJ Media on Monday, ADF senior counsel Roger Brooks celebrated the city's move to strike the counseling censorship law.
"All New Yorkers and all Americans deserve the right to private conversations, free from government control. By trying to regulate and censor private sessions between an adult and his counselor, New York City directly violated freedom of speech—a core right protected by the First Amendment," Brooks said. "The city council appears to have realized its error and correctly concluded that this censorship is unconstitutional. The city council’s move toward repeal is a win for Dr. Schwartz, his patients, and all New Yorkers."
"The patient-psychotherapist relationship requires giving patients the ability to express themselves without fear of reprisal and allowing therapists the freedom to respond to that expression with understanding; it is the last possible place where the government should be dictating what topics or ideas are off limits," the lawsuit states.
Psychotherapists should have the freedom to explore a wide range of issues in therapy. Unwanted same-sex attraction or gender confusion often has psychological roots. People who previously identified as transgender but grew to reject that identity discovered that abuse in childhood had contributed to their gender confusion.
Yet LGBT activists stigmatize therapy that seeks to address issues behind unwanted same-sex attraction or gender dysphoria. The term "conversion therapy" is itself a weapon against therapy freedom.
Arthur Goldberg, founder of the therapy referral service Jews Offering New Alternatives for Healing (JONAH) objected to the term. "Conversion therapy is not even a term of art. It’s a misnomer. It’s a pejorative term that talks about emotional trauma and physical trauma," he told PJ Media last month. JONAH did not recommend or carry out so-called "conversion therapy." It gave people "references for therapy for underlying issues which may result in same-sex attraction."
As ex-gay leader Christopher Doyle explains in his book The War on Psychotherapy, "One of the strategies that far-left advocacy and gay activist organizations use to smear professional psychotherapists assisting clients distressed by sexual and gender identity conflicts is to intentionally conflate professional therapy with religious practice and/or unlicensed, unregulated counseling. They do this by labeling all efforts—therapeutic, religious, or otherwise—to help clients distressed by sexual and gender identity conflicts [as] ‘conversion therapy.'"
Mat Staver, founder and chairman of Liberty Counsel, a Christian law firm defending ex-gays who challenge counseling censorship bans, explained that these laws have "prohibited counselors from providing — and clients from receiving — any counsel to change their unwanted same-sex attractions, behavior, or identity, or gender confusion. This forces counselors to override the objective and autonomous will of the client when the client asks them to help counsel the to change behavior and address their unwanted feelings."
Contrary to the fears of LGBT activists, "counselors don't push clients in a direction they don't want to go," the Liberty Counsel chairman insisted. "They're kind of like a GPS. The client sets the destination, and the counselor guides them to it."
These restrictive laws impede counselors from doing their jobs, Staver argued. "These laws are so intrusive that counselors are afraid to even counsel underlying issue with these individuals who are seeking to change or to align their feelings or behavior with their religious and moral objectives," he said.
Lawsuits against "conversion therapy" bans received a new lease on life thanks to the Supreme Court ruling NIFLA v. Becerra last June. In that decision, Justice Clarence Thomas explicitly struck down California's law forcing crisis pregnancy centers to advertise abortion under the argument that states can regulate "professional speech." In striking down California's law, Thomas referenced a case (King v. Governor of New Jersey) involving bans on sexual orientation change efforts.
"The Supreme Court cited the King case in New Jersey by name, rejected the professional speech category," Staver told PJ Media. Last year, he had interpreted the NIFLA case to mean that "the handwriting is on the wall that laws banning counsel for unwanted same-sex attractions, behavior, or identity will fall under the First Amendment Free Speech Clause."
Dr. Schwartz is far from the first to challenge these restrictive counseling bans, and it seems unlikely he will be the last. The New York City Council may be willing to overturn its restrictive speech ban in order to prevent a legal precedent that could challenge more of these bans across the country. In doing so, the city may have merely delayed the inevitable.
Therapists should have the liberty to help their clients address any psychological issues, and that includes a struggle with unwanted same-sex attraction or gender dysphoria. While many people with these conditions find community and affirmation in the LGBT movement, not all Americans with these conditions wish to join that movement.
One final note: The Southern Poverty Law Center (SPLC) spearheaded lawsuits to effectively ban "conversion therapy" by getting certain types of counseling declared in violation of consumer protection laws. In March, the SPLC had a devastating scandal involving claims of racial discrimination and sexual harassment. That scandal also revealed that its list of "hate groups" is a cynical fundraising scheme. The SPLC has attacked both ADF and Liberty Counsel as "hate groups," and it has bragged about getting JONAH shut down.
Amazon has blacklisted organizations the SPLC has accused of being "hate groups." In July, the website removed counseling books that offered hope to those struggling with unwanted same-sex attraction or gender dysphoria.
The New York victory for Dr. Schwartz represents a key setback for the SPLC's legal strategy, but the far-left group will likely strike back. The battle against therapy censorship is far from over.
Follow the author of this article on Twitter at @Tyler2ONeil.