On Wednesday, an Orthodox Jewish therapist joined five other lawsuits across the country (some from ex-gays) in filing a legal challenge to New York City’s ban on “conversion therapy.” New York’s state legislature passed a similar ban last week, which has yet to be signed by the governor. The therapist’s lawsuit challenges NYC’s ban on free speech and religious freedom grounds, attacking the law as “the Counseling Censorship Law.”
Dr. David Schwartz filed the lawsuit against New York City and City Consumer Affairs Commissioner Lorelei Salas.
“Dr. David Schwartz filed the case now because he is facing the threat of up to $10,000 in fines per patient, and the New York City Council has put out bulletins that they’re looking for anonymous complainants,” Jeana Hallock, legal counsel with Alliance Defending Freedom (ADF), the law firm representing Schwartz, told PJ Media in an interview Thursday.
Hallock said Dr. Schwartz “keeps a very, very busy schedule,” often working from 8 a.m. until 11 p.m. He has worked for four decades, and Orthodox Jewish patients come to him due to their shared faith. Clients struggling with unwanted same-sex attraction are “a current part of his practice now,” and they should be free to pursue their own therapy goals. “He may have an individual who wants to marry a woman and become a father but struggles with same-sex attraction,” the lawyer explained.
“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.
The Counseling Censorship Law “reaches into this confidential relationship to prohibit the discussion and exploration of ideas—and even the patient’s own, personal goals—to which the New York City Council objects.”
The NYC law, adopted last year, makes it illegal for any person to provide services for a fee that “seek to change a person’s sexual orientation or seek to change a person’s gender identity to conform to the sex of such individual that was recorded at birth.” Alliance Defending Freedom (ADF), the Christian law firm representing Schwartz, noted that the law only prohibits counsel in one direction. Counselors may guide patients in the direction of LGBT identities, but not away from them.
The law threatens fines of $1,000, $5,000, or $10,000 for the first, second, and subsequent violations.
“All Americans, secular and religious, deserve the right to private conversations, free from government censorship,” ADF senior counsel Roger Brooks said in a statement. “It is difficult to imagine a more direct violation of freedom of speech protected by the First Amendment than New York City’s attempt to regulate the private sessions between an adult and his counselor.”
The lawsuit brings five counts against the Big Apple: denial of Dr. Schwartz’s free speech; denial of his due process rights under the Fourteenth Amendment; denial of free speech to Dr. Schwartz’s patients; denial of Dr. Schwartz’s religious freedom; and denial of religious freedom to Dr. Schwartz’s patients.
ADF attorney Jeana Hallock emphasized the free speech claims. “There’s a very, very clear censorship of speech being imposed here.” She quoted the 2018 Supreme Court case NIFLA v. Becerra, saying, “The people lose when the government is deciding which ideas should prevail, and that’s what the city council is trying to do here.”
“If, for example, a woman’s life goal includes marrying a husband and starting a family, and she seeks input from a counselor who shares her beliefs, the government simply has no business monitoring these conversations or interfering with these goals, regardless of the city council’s views about them,” Hallock argued. “The counselor-patient relationship is a sensitive one, privileged under state and federal law, and the city council seriously oversteps its role when it tries to control those conversations, or imposes government views on patients or therapists.”
Dr. Schwartz is far from the first to challenge these restrictive counseling bans. Last week, ex-gay psychotherapist Christopher Doyle sued Gov. Larry Hogan (R-Md.) and Maryland Attorney General Brian Frosh over Senate Bill 1028, Maryland’s law banning sexual orientation change efforts therapy for minors, the Christian Post’s Michael Grybowski reported.
These “conversion therapy” bans are “all very similar,” Mat Staver, founder and chairman of Liberty Counsel, the Christian law firm defending Doyle and other ex-gays, told PJ Media in an interview Wednesday. “They’ve all 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,” Staver explained.
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 (SOCE).
“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.”
In addition to the New Jersey case and the Maryland case, Liberty Counsel has two cases in Florida and one in California, Staver said. He insisted that many of the plaintiffs in these lawsuits “say they have been greatly helped by this counsel and were on the verge of suicide before they received this counsel that saved their lives.”
Doyle, a former homosexual himself, claims to have overcome same-sex attraction and to have guided many men and women past unwanted homosexual urges. He has led conferences featuring many other ex-gays. At one conference in 2013, Doyle lamented, “When gays come out of the closet they are celebrated in the movies and on TV, when an ex-gay tells his story, he’s mocked, ridiculed, defamed – and ask Trace McNutt, he gets death threats.”
Many LGBT activists push the narrative that people with same-sex attraction or gender dysphoria are “born this way” and cannot change. (Interestingly, Salon‘s Marcie Bianco, who describes herself as a “qualified lesbian,” insists that sexuality is a choice.)
Under this theory, efforts to change one’s sexual orientation or gender identity are misguided and some states have attempted to outlaw them under consumer protection laws as fraud. California nearly passed a bill that would have banned any books or other materials promising freedom from unwanted sexual attractions or gender identity — an overbroad bill that arguably would have banned the Bible itself.
Staver argued that the activists pushing “conversion therapy” bans are motivated by politics and do not understand the ramifications these bans would have.
“The people who push these laws have no understanding of what happens in a counseling environment,” he told PJ Media. “These are politically motivated, heavy-handed state interventions into the privacy of a counseling room, where we have historically associated that relationship to be a highly confidential one.”
Dr. Schwartz’s lawsuit seems particularly notable, as it demonstrates that opposition to these restrictive bans is not limited to Christians. Orthodox Jews, Muslims, and followers of many other faiths — and no faith — also yearn for freedom from same-sex attraction and gender dysphoria, and psychologists of all faiths seek to satisfy that yearning among their patients.
It seems deeply ironic that such laws encourage individuals to “choose” their gender in opposition to their birth sex, while preventing them from choosing their biological sex or an opposite-sex attraction. Why restrict a patient’s free choice? What are these activists afraid of?
Follow the author of this article on Twitter at @Tyler2ONeil.
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