Breaking: Vital Shield or Illegal Muzzle? ‘Conversion-Therapy’ Bans Challenge Free-Speech Rights of Therapists

When potential clients step into Lee Webster's central Wisconsin office, he promises them a safe environment where they can explore their personal struggles with a caring counselor.

A private-practice, state-certified therapist for nearly a half century, Webster said that when new clients come in, he tries to develop relationships with them and conducts assessments to better understand their issues. If he believes he has the skills to help, they'll move forward together, setting goals based on what the client wants to accomplish in therapy.

Webster's Center for Human Development in Wausau is centered on the Christian faith. It has a cross in its logo. It's mission statement talks about applying faith-based principles. Its website notes its support for "traditional values" and that it networks with churches to provide faith-based programs "to strengthen marriage, family, and Church life." But Webster said their work is not limited to Christian clients, and he does not try to convert people to accept his beliefs.

"It's not my position to force my values on somebody," he said.

Still, Webster was alarmed when he learned that on December 1, Wisconsin's Department of Safety and Public Standards implemented a new rule that he believes violated the free-speech rights of therapists and clients, and redefined the role of a professional counselor in the state.

Though it didn't use the term, the rule was an end-around bureaucratic effort to institute a statewide prohibition on what some call "conversion therapy" efforts to change someone's sexual orientation or gender identity. Wisconsin mental-health professionals like Webster could have faced discipline, including the loss of their licenses, for "employing or promoting any intervention or method that has the purpose of attempting to change a person's sexual orientation or gender identity, including attempting to change behaviors or expressions of self or to reduce sexual or romantic attractions or feelings toward individuals of the same gender," according to the rule.

Proponents of the rule said it was necessary to shield people from unscrupulous therapists and ineffective and potentially dangerous practices that can lead to increased psychological suffering and suicide. Nearly all major health organizations have denounced conversion-therapy efforts.

But opponents said that not only was the language of the rule vague and confusing, the rule itself was unconstitutional because it is a governmental regulation of speech.

Webster was one of the only professionals who spoke out against the rule, though it is likely others were opposed but were unwilling to make their opposition public. In a letter to lawmakers, Webster wrote that the rule "negates the very definition of counseling."

"There is no other area of professional counseling that prohibits a counselor from utilizing interventions to explore consequences of choices," Webster wrote.

In an emotionally charged hearing on January 12, a Republican-majority legislative committee blocked the rule, finding that the examining board that passed it had exceeded its authority.

The debate is stalled now in politically-divided Wisconsin, but legal disputes about conversion-therapy bans are continuing around the country. In August, Pennsylvania became the 27th state to ban or restrict conversion efforts, according to the Washington Post. In Washington state, the conservative law firm Alliance Defending Freedom is fighting a conversion-therapy ban.

While there is really little professional debate about the effectiveness or lack thereof of techniques to change someone's sexual identity, there are real legal and ethical debates about what free-speech limits should be placed on professionals in a therapeutic setting who may be offering fringe opinions, making controversial scientific claims, or engaging in questionable or potentially harmful practices. While the Third and Ninth Circuit Courts have upheld conversion-therapy bans, concluding that professional speech and conduct is not awarded full First Amendment protection, the Eleventh Circuit in 2020 struck down conversion-therapy bans in Florida. The court noted that the Supreme Court has not recognized a First Amendment exception for professional speech, and that the law in question was not narrowly tailored to serve a compelling government interest.

The debate is also playing out as an increasing number of young people identify as gender diverse, and as more mental-health professionals ditch watchful-waiting approaches for kids experiencing gender dysphoria and instead embrace a gender-affirming care approach.

Opponents of conversion-therapy bans say they are typically vague and leave professionals guessing as to where the legally-enforceable lines are. If a patient is struggling with his or her sexual orientation or gender identity, can that be fully explored without running into trouble, or are therapists only allowed to affirm a gay or transgender identity? Could a therapist run afoul of the law by noting the long-term medical consequences of a gender-reassignment surgery?

"If you were to explore those things under this rule, there's a possibility that somebody is going to come back to you and say what you're doing is you're forcing your ideas on them," Webster said of the Wisconsin rule, adding that "there's no other areas of counseling, or very few, where you're told you have to affirm what somebody thinks."

During the hearing on the Wisconsin rule, Anthony LoCoco, a lawyer for the Wisconsin Institute for Law & Liberty, said the government is weighing in on profound and complex debates over sex and gender to "select a winner and punish those who dare to voice opposing views."

"In this circumstance, it doesn't matter that all of the professional organizations are united in opposition," he said. "That is a reason to protect speech, because speech of minorities is exactly what the First Amendment protects."

Dr. Jack Drescher, a New York psychiatrist, psychoanalyst, and professor specializing in human sexuality, supports conversion-therapy prohibition. Every right, including the free-speech rights of therapists, has limitations, he said. He believes concerns that well-meaning therapists who don't engage in conversion therapy could accidentally step over the line by exploring a client's real conflicts or confusion with their sexual orientation or gender identity are overblown.

"If you're a therapist who's not really trying to change anybody's sexual orientation, then your questions about their sexuality, they should be helpful to the patient," he said.

Drescher said the lines are clear between ethical and unethical conduct regarding therapy for minors struggling with their sexual or gender identities, and if therapists really don’t know where those lines are they should get more training.

Acceptance or Change?

In 2012, California became the first state to prohibit conversion therapy for minors. Today, 20 states and Washington D.C. ban the practice for minors, and seven states have partial bans.

Drescher said he has no idea how prevalent the practice is among licensed therapists. Homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders in 1973. "Before that happened, it wasn't uncommon for people who were getting formal training in psychiatry, psychology, and other mental-health services to learn the techniques that were being taught to try to change people's sexual orientation," he said.

Those techniques, he said, were based on what people believed at the time were the causes of homosexuality. "And today, in 2023, we don't know what causes homosexuality or heterosexuality," Drescher said. "So, one of the problems with the approaches that we used is that they were based on false premises."

Research on sexual-orientation change is limited, and much that has been done has relied on self-reports and lacked control groups. However, most mainstream researchers have concluded that conversion therapy is ineffective and potentially harmful. Drescher said there is no real debate in the professional health world over sexual-orientation change efforts, which he believes are akin to faith healing. But some socially-conservative and religious groups push back on the mainstream narrative. The Family Research Council, for example, has said "there is an abundance of evidence that [sexual orientation change efforts] can be effective," pointing to studies that have found that some people who have gone through therapy or counseling report that they have been able to reduce their same-sex attraction and behavior, even if it is just incrementally.

While early efforts aimed at eliminating homosexuality often involved particularly cruel physical techniques electroshock therapy, castrations, inducing nausea, prescribing sexual depressants  conversion-therapy bans today are mostly aimed at talk therapy.

A report by the UCLA Williams Institute of Law estimated that as of 2019, about 698,000 LGBTQ adults in the U.S. have received conversion therapy, and about half received it as adolescents. It also estimates that most teens who receive conversion therapy receive it from a religious or spiritual advisor, rather than from a licensed health-care professional.

Sally Satel, a practicing psychiatrist and senior fellow at the American Enterprise Institute, said that what constitutes conversion therapy isn't always well defined. There's nothing unethical about therapists working with clients who have questions about their sexual identity, their self-image, their gender identity, or whether gender-reassignment surgery is right for them. But, she said, "the therapist would be wrong to have some sort of pre-set agenda."

It would also be unethical, she said, for someone to be coerced or sent against their will to a therapist to have their sexual orientation or gender identity changed. "That's what I think of as conversion therapy, it is almost compelled," Satel said.

While there may be little professional debate about changing sexual orientation, there is ongoing and heated debate about how to work with young people struggling with their gender identity. Last June, President Joe Biden signed an executive order directing his health and education departments to "promote expanded access to gender-affirming care," though some professionals and commentators have suggested that the rise in gender-diverse identification among young people could in part be the result of a social contagion.

Satel worries that too many therapists rush young people into gender transitions. She believes therapists should practice caution, and not immediately treat a young person's new gender-diverse identity as something that is necessarily intrinsic and permanent. "With some people, probably most it will be temporary," she said, "so just don't rush into anything that is irreversible."

Webster, the Wisconsin therapist, said there should more attention paid to people who are de-transitioning after a gender-reassignment surgery and to the medical consequences of those procedures. And while he said he doesn't push his beliefs on clients, "if somebody comes in and says, 'This is a problem for me, and I want to change,' it seems to me that that's a client-therapist right to work on whatever issues might be involved," Webster said.

"From a therapeutic standpoint," he said, "I want to look at some of the influences that are there. I want to look at the person's history, their peer relationships, family relationships, all those kinds of things. I want to be able to explore those with the person. And if that means facilitating some kind of change, that's a privilege that that person has to ask for."

Drescher is skeptical, at least in terms of finding the root cause of a client's sexual orientation: "Two people talking in a room are not going to discover the causes of homosexuality."

Circuit Splits on Conversion-Therapy Bans

Free-speech advocates who oppose bans on conversion therapy on First Amendment grounds are optimistic that the Supreme Court will one day rule in their favor. They point to the 2018 ruling in National Institute of Family and Life Advocates (NIFLA) v. Becerra, where the court struck down a free-speech exemption allowing governments to regulate professional speech.

In Becerra, the court struck down a California law that required pro-life pregnancy clinic workers to notify clients about low-cost and even free abortion services available in the state. In his opinion, Justice Clarence Thomas rejected professional speech as a separate category of speech that is entitled to a different level of protection.

In previous rulings on conversion-therapy laws, the Third and Ninth Circuits, in different free-speech analyses, upheld the bans on the grounds that professional speech made during therapy is less protected by the First Amendment and can be regulated by the state. For example, medical professionals who give false information to clients can have their medical licenses revoked. The Ninth Circuit ruled that the speech of a therapist was akin to an act of delivering treatment, and professional conduct receives even less protection than professional speech.

However, two years after the Supreme Court's decision in Becerra, the Eleventh Circuit, in Otto v. City of Boca Raton, leaned on that decision to strike down conversion-therapy bans in South Florida. It said a therapist's speech is speech, not conduct, and it is broadly protected by the First Amendment. The Eleventh Circuit also relied on a previous ruling it had made three years earlier that said the state could not stop doctors from talking to patients about gun safety.

"Professional speech, even when you are doing it as part of your profession, it's still speech," said Matt Sharp, a lawyer with Alliance Defending Freedom, which has fought free-speech battles over conversion-therapy bans in court.

In 2019, ADF filed a lawsuit against the city of New York on behalf of a Orthodox Jewish psychotherapist who regularly worked with patients who wanted his help overcoming same-sex attraction so they could form a family and live consistently with their faith. The lawsuit targeted a new city law that made it illegal to charge a fee for services 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." The city repealed the law and agreed to pay $100,000 in attorneys fees and damages.

ADF is now representing Brian Tingley, a marriage and family therapist in Washington state, who is challenging a 2018 law that prohibits conversations between counselors and young clients that seek to help the clients to achieve comfort with their biological sex or to reduce unwanted same-sex attractions. Tingley, who has been in private practice for about 20 years and works with clients on a range of issues, said he does not push his Christian beliefs on his clients, and only helps them to work toward the goals that they've set for themselves.

"What I do is I engage in nothing but ordinary counseling methods," Tingley told National Review. "I talk with my clients, and help them work through a wide variety of issues, whatever comes through, anxiety, depression, marital conflict, conflicting sexual desires."

Tingley believes the law violates his free speech and religious rights. He said that parents sometimes do come in with an agenda for their kids, but he only continues to see clients under 18 if they are willing to participate voluntarily. Tingley said he has had success reducing unwanted same-sex attractions and helping clients achieve comfort with their biological sex.

"The minors that come to me are in a lot of pain, and they want a safe place to talk about things that they feel they cannot talk about anywhere else," Tinglely said. "When the government is stepping in and censoring speech, they're really denying my clients the help that they are asking for, to have conversations, and the law is wanting to stop those conversations."

A district court threw out Tingley's challenge to the law, and the Ninth Circuit upheld the law in September. ADF has filed a petition requesting the full Ninth Circuit court to hear the case.

Drescher, the New York-based psychiatrist and proponent of conversion-therapy bans, said he's not certain if or how the Supreme Court with a conservative supermajority will address the issue. "I'm a big free speech believer myself," he said, but then suggested a hypothetical situation where a therapist eggs on a client toward suicide. That, he said, wouldn't be allowed. "There are limitations of what you can say."

Dairy State Debate

The Wisconsin rule against conversion therapy was implemented in December after the state legislature failed to pass bills to address the issue. Two years ago, the state's Democratic governor, Tony Evers, signed an executive order prohibiting taxpayer money from being spent on conversion therapy. Democrats are unlikely to get a bill banning conversion therapy through the Republican legislature, and Evers would almost certainly veto any Republican legislation.

"They decided, okay, the way we can do this then, we'll attach it to a licensing program for marriage and family therapists and counselors, and call it unprofessional conduct, scare the living daylights out of them that they're going to lose their livelihood if they breach it," said Julaine Appling, president of the conservative Wisconsin Family Action and an opponent of the rule.

The January hearing over the Wisconsin rule, which was not limited to minors, was held by the legislature's Joint Committee for Review of Administrative Rules. The committee includes state Senate and Assembly members. While the hearing was technically to determine if the examining board that made the rule overstepped its legal bounds, the debate centered on the rule's content.

A series of mental-health professionals and gay and transgender activists spoke against striking down the rule, with one gay activist accusing Republicans of "coming after queer people." One speaker said he had gone through conversion therapy and it "broke my entire family apart."

State Senator Chris Larson, a Milwaukee Democrat, said that striking down the rule was a "roundabout way of legalizing acceptable torture." State Senator Kelda Roy, a Democrat from Madison, suggested that lawmakers shouldn't be involved in addressing the rule, since "legislators are not therapists, and probably a lot of legislators have not even been to therapy as a client, although maybe we should." At one point she dismissed the First Amendment-based arguments of LoCoco, the lawyer who called the rule unconstitutional, and said it was "pretty obvious that you're on the side of allowing maximum harm to vulnerable people."

Appling with Wisconsin Family Action argued that the term "conversion therapy" was a mischaracterization of type of therapy that takes place in the state. The term "conversion therapy," she said, "appears to mean whatever anybody thinks they want it to mean." No professional should bully, shame, intimidate, or physically harm a client, she said, "but talking to people about realities, about biological truth and educating them on risks related to their choices is what good therapists, counselors, and social workers should all have the right to do."

Republican state Senator Stephen Nass of Whitewater, a committee co-chair, noted that the other state regulations on therapist and counselor conduct don't address the content of therapy, but instead prohibit things like fraudulent billing practices, working while under the influence of drugs or alcohol, and having sex with clients or former clients.

It was clear, he said, that the debate over conversion therapy "really belongs in a committee or legislative process." The motion to strike down the rule passed on a vote of six to four.

Webster, the Wausau therapist, doesn't deny that inappropriate things have likely been done under the guise of therapy, and he said there are well-meaning people fighting for conversion-therapy bans. There was a time, he said, when therapists were very confrontational with people struggling with things like alcoholism and criminality. "They would beat people up, in a sense, because they were hoping to break down their defenses," he said. "And, to some degree, that seems to me what people are trying to avoid when they talk about conversion therapy."

But Webster also believes that generally the conversion-therapy techniques and methods that were targeted by the Wisconsin rule "don't happen in a good psycho-therapy office anyway." The issue has gotten politicized, he said, and more and better research is needed.

Webster added that he believes Wisconsin already has a strong licensing program, and the necessary protections for gay and transgender clients are already in place.

"I don't see a reason why we have to be particularly protecting any particular class," he said. I think the rules are there. I think that the ethics are there, for professionals to do no harm, and to allow for client self-determination, for non-judgmental attitudes. All of those things are part of basic training, and I think it's already there."

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Vital Shield or Illegal Muzzle? 'Conversion-Therapy' Bans Challenge Free-Speech Rights of Therapists

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