July 8, 2021
Editor’s note: This is part of an ongoing series about key provisions that states have advanced in 2021 to defend the family and human dignity.
Most Americans would support passing laws that seek to protect minors from harm. However, the question of exactly how we should go about protecting minors and what we should be protecting them from is a bit more contentious.
This year, 21 states have introduced bills seeking to ban sexual orientation change efforts (SOCE) or what its detractors call “conversion therapy.” In actuality, what these bills ban is patient-directed counseling and talk therapy. Specifically, they prohibit licensed mental health care professionals from counseling individuals to help them cope with unwanted same-sex attraction or gender identity issues. Although eight states have introduced legislation to protect patients’ right to access the therapy of their choice, more needs to be done to stop the spread of counseling bans in the United States and protect the freedoms of counselors and their patients.
Counseling bans have almost always applied only to minors and typically define SOCE or “conversion therapy” as “any practice or treatment by a mental health professional that seeks to change an individual’s sexual orientation or gender identity. . .” Most often, they incur professional penalties for mental health care professionals who fail to comply. Some may contain exceptions for pastors or other religious clergy, but these exceptions do not extend to licensed professionals who are also pastors or people of faith. Some of these bills also prohibit expending public funds for “conversion therapy.”
The media’s portrayal of “conversion therapy” often evokes images of electroshock or other pain-inducing methods. However, there is no evidence that a single practitioner of SOCE is using these methods today. Counseling bans rarely, if ever, mention such methods but instead use expansive language that sweeps up mere talk therapy. (Indeed, the SOCE ban in Washington state was held up for years because Democrats there refused to agree to language outlawing these specific practices.)
Virtually every counseling ban today applies to both sexual orientation and gender identity. A counseling ban that includes gender identity is especially harmful, as it mandates that mental health care professionals use a “gender-affirming” model of care with their clients. This makes it unlawful for a therapist or psychiatrist to do anything other than affirm a minor’s gender identity, even if said identity does not align with the minor’s biological sex, and even if that’s the kind of counseling the patient wants.
These bills are harmful for three reasons:
- They place content and viewpoint-based restrictions on constitutionally protected speech,
- They undermine the autonomy of individuals and their parents to choose the therapy that is right for them, and
- They harm minors who are struggling with these issues by making the counseling they need unavailable.
Since 2011, 265 counseling ban bills have been introduced in 43 states. Twenty-four of these bills have been enacted in 18 states.
Currently, 20 states plus the District of Columbia have counseling bans in place. Counseling bans have been prevented from taking effect in Alabama, Georgia, and Florida due to court injunctions. Based on U.S. census data on the populations of these 20 states, it is estimated that about 41 percent of minors living in the United States today live in a state with a counseling ban in place.
From 2011 to 2019, the number of counseling bans introduced each year rose steadily, peaking in 2019 at 57. This number dropped to 28 in 2020 but has since risen again in 2021 (43 in 21 states). Fortunately, none have been enacted yet. Thirteen of the bills introduced this year applied not only to minors, but also to adults. Two bills introduced in North Carolina extended counseling bans to adults with disabilities, while Minnesota and Alaska introduced bills that applied to minors and “vulnerable adults.” Bills introduced in Kentucky and Texas apply the ban to individuals of all ages. This is somewhat of a recent development, as in years past, few of these bills applied to adults.
Six bills this year also prohibit advertising for “conversion therapy” (again, this is really talk therapy) or related goods and services. Florida’s bills even impose a criminal penalty (a felony of the third degree) for violating such prohibitions. Such dangerous penalties have become more prevalent in the past two or three years. This raises questions about what constitutes an “advertisement” and how this could affect churches and other faith-based institutions. If anything, counseling bans have gotten even more expansive this year, with more bills applying to more individuals and imposing new penalties.
Apart from simply opposing counseling bans and stopping them in their tracks, some states have taken a more proactive approach by introducing legislation to protect counseling. These bills vary widely in terms of specifics, but many include two key provisions:
- Prohibit the state from restricting the rights of mental health professionals to counsel patients with same-sex attraction or gender identity issues, as well as the right of patients or their parents to choose such counseling.
- Provide that individuals may give or receive counsel in accordance with their religious beliefs or moral convictions.
In addition to these two provisions, some bills may create a civil cause of action for practitioners or patients who feel that their freedom of speech was unjustly violated.
About half of the 21 Counseling Protection Acts introduced since 2015 take the general form described above. However, the following states have taken a different approach:
- Massachusetts introduced a bill in 2021 that would amend a section of law banning SOGI “change efforts,” adding a section specifying that SOGI change efforts do not include practices that “utilize discussion alone.”
- Wisconsin introduced two bills in 2021 that would prohibit state regulatory boards from promulgating rules that establish that employing or promoting a treatment that attempts to change a person’s sexual orientation or gender identity is unprofessional conduct.
- North Dakota (2021), South Dakota (2020), and Kansas (2019) each introduced bills that would preempt the state government from endorsing or enforcing certain policies, including policies banning “conversion therapy,” on the novel theory that to do so would be to establish a state religion. (None of these bills has passed, so this reinterpretation of the Establishment Clause has not been tested.)
- Virginia introduced two bills (one in 2019, one in 2020) that would have given state regulatory boards the right to ban electroshock therapy or “similar non-speech therapy” but specifically prohibited such entities from violating an individual’s “fundamental right” to engage in the talk therapy of their choice, including counsel to assist in “reducing or eliminating unwanted attractions or concerns about gender identity.”
- Tennessee introduced two bills in 2016, both of which would have protected licensed counselors and therapists from being required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief, provided that the counselor or therapist coordinates a referral to another professional willing to provide such counseling.
- Oklahoma introduced a bill in 2015 that would have prohibited the government from restricting SOCE but specified that this protection would not extend to “aversion therapy” (electroshock, electroconvulsive therapy, vomit-induction therapy, etc.).
Since 2015, at least 20 Counseling Protection Acts have been introduced in at least 12 different states. 2021 has been the biggest year for these types of bills, with a total of eight being introduced. So far, only one Counseling Protection Act has been enacted in Tennessee in 2016. This bill protected counselors and therapists from being required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief, provided that the counselor or therapist coordinates a referral of the client to another counselor or therapist willing to provide the counseling or therapy. This bill also provided that a refusal to provide the counseling/therapy described will not be the basis for a civil cause of action, criminal prosecution, or any other action by the state to penalize or withhold benefits.
This year, some states have recognized the importance of standing against counseling bans. But more still needs to be done. Twenty states currently have counseling bans in place for minors, meaning children and teens in those states cannot legally access therapy to address unwanted same-sex attraction or gender identity issues, even if they want to. Some states are trying to take this right away from consenting adults as well. More states need to step up and protect access to such counseling.