Conversion therapy ban violates First Amendment

Gov. Brian Sandoval signed into law this past week a legislatively passed bill that makes it illegal for any psychotherapist in Nevada to provide conversion therapy to anyone under the age of 18.

Senate Bill 201 defines conversion therapy as “any practice or treatment that seeks to change the sexual orientation or gender identity of a person.”It states this therapy is barred “regardless of the willingness of the person or his or her parent or legal guardian to authorize such therapy.” The bill description justifies this usurpation of individual and parental rights by claiming the practice is ineffective and potentially harmful.

In a statement released to the press, the bill’s chief sponsor, state Sen. David Parks of Las Vegas, said, “Banning conversion therapy makes Nevada a safer place for children who are at a higher risk of anxiety, depression, substance abuse and even suicide.”But what is therapy? These days it is not torture, electric shock or some emersion in aversion straight out of “A Clockwork Orange.” It is talk. You know, free speech.

But SB201 dictates that some speech is permissible while other speech is not. While it prohibits speech that might prompt a person to reconsider his or her sexual orientation or gender identity, it specifically allows support or confirmation for “a person undergoing gender transition …” or provides “acceptance, support and understanding of a person or facilitates a person’s ability to cope, social support and identity exploration and development …”It is a one-way street. The courts have repeatedly ruled that laws that limit speech based solely on its content violates the First Amendment. Presumably, if a professional merely talked to a minor about the results of years of research and studies and that talk resulted in a change of attitude about sexual orientation, that would be illegal under the law. Facts matter for naught.

Drs. Paul McHugh and Lawrence Mayer of Johns Hopkins University School of Medicine have written that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults. Would telling a minor to let nature take its course violate the law?

A late amendment to the law makes a ham-fisted attempt to protect religious counselors from being punished under the law, but it is so convoluted as to be indecipherable and totally useless. It tries to tiptoe around the Free Exercise Clause of the First Amendment, but instead does a Mexican hat dance.

It states “there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.”They have to take off their professional licensee hat and put on their clerical hat.

A group called the Alliance Defending Freedom points out the Catch-22 in that.

Nevada law states that it is “unlawful for any person to engage in the practice of marriage and family therapy … unless the person is licensed …” the Alliance points out. “Telling licensed professionals that they can only engage in certain speech and activities if they do so outside of the umbrella of their license exposes them to ethical and legal liability. It places them between a rock and a hard place. If they do the counseling under their license, they violate SB 201; if they do it outside the scope of their license, they violate” another law.

What a tangled web lawmakers weave when they decide they know what’s best for young people, and they and their parents don’t

.The Latin phrase is in loco parentis, meaning “in the place of a parent.” The emphasis should be on the loco. Someone should challenge the constitutionality of this law in court. — TM

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Comments

  1. Matt Bowers says:

    Words matter, Mr. Mitchell. As someone who works with words for a living, you must surely understand this. Words can provide comfort, or they can destroy.

    In SB-201, it’s the words used by mental health therapists that are at issue – not freedom of speech.

    In full disclosure, I’ll state up front that I’m not from Ely – or any of the towns where you publish. I’ve been fortunate to spend the last several years doing business in White Pine County and it’s come to feel like a second home. Yet, as much as I respect the proud residents of Ely, I’m saddened by the distinct lack of resources and social support networks they have to draw upon should a need arise. Niche segments of society that live in our rural communities suffer from this. In the scope of this issue, LGBT youths often suffer in silence.

    Today, nearly 50 years after the American Psychiatric Association declared there was nothing wrong with alternative sexual orientations, some mental health practitioners still resort to reparative therapy to force patients into an homogenized worldview. Not only is that an insult to the patient, it can also be damaging.

    When a youth is told that some natural part of their psychology is wrong – or worse yet, evil – it frequently leads to escalating problems. Homosexuality may be as natural to them as heterosexuality is to someone else. It’s not a condition to be cured, it’s just an attribute of their personality. Sadly, teen substance abuse and even suicide is frequently driven by this fear-driven stigmatization.

    Today’s youth are faced with enough challenges to find their way in the world. They certainly do not need a backward-thinking therapist who wants to “fix” something that wasn’t broken to begin with. Pretending the issue does not exist will not change the fact that it does.

    Your misplaced missive cites, “in loco parentis”. I would counter with one of the fundamental concepts of healthcare in these United States; “Primum non nocere”: first, do no harm.

    If SB-201 can save even one child’s life, isn’t that worth your support?

    • Well said Matt Bowers.

      • Wheeler says:

        “I’m saddened by the distinct lack of resources and social support networks they (Ely citizens) have to draw upon should a need arise.”

        That takes money. Small towns have limited money and resources – this is why medical expertise is often found out of town. Armchair quarterbacking is easy. If you are more pragmatic than ideological, what do you propose beyond demanding things that require funding that (very possibly) doesn’t exist?

        You are generally assuming a problem and applying it to our community, then implying our community’s failure through lack of response: “Niche segments of society that live in our rural communities suffer from this.” Always? Specifically? Maybe? Statistically?

        As you call out Ely as a sad disappointment, is it really. or was this simply a case of capitalizing on the perceived opportunity that the op-ed presented in order to cast light on (your) general (statistical) concerns that may or may not actually be reflected within this specific community, Matt?

  2. Wheeler says:

    “I’m saddened by the distinct lack of resources and social support networks they (Ely citizens) have to draw upon should a need arise.”

    That takes money. Small towns have limited money and resources – this is why medical expertise is often found out of town. Armchair quarterbacking is easy. If you are more pragmatic than ideological, what do you propose beyond demanding things that require funding that (very possibly) doesn’t exist?

    Beyond that, you are generally assuming a problem and applying it to our community, then implying our community’s failure through lack of response: “Niche segments of society that live in our rural communities suffer from this.” Always? Specifically? Maybe? Statistically?

    As you call out Ely as a sad disappointment, is it really. or was this simply a case of capitalizing on the perceived opportunity that the op-ed presents in order to cast light on (your) general (statistical) concerns that may or may not actually be reflected within this specific community, Matt?

    • Matt Bowers says:

      Hello “Wheeler” –

      My apologies if you interpreted my letter as a statement of disrespect for Ely and White Pine County. In no way have I placed blame for the lack of resources on the residents of this proud town. Quite the opposite, actually. From the last several years, I remain impressed for all that is accomplished – even when faced with limited financial resources. There is no blame here. Nor is there any failure of effort on the part of local residents.

      Regarding pragmatism, we all do the best with what we have available. That’s true of any town of any size. Those who know me are passionately aware that I have never called Ely a “sad disappointment”.

      What I hoped to advocate was a general respect for all members of the community. Not just those with whom you feel most comfortable.

      I’m sorry you missed the point.

      • Wheeler says:

        Thanks for clarifying, Matt. Your sincerity reads. WPC is a historic melting pot compliments of Kennecott Copper, and other related factors. Through that multi-generational cultural diversity, the community has traditionally enjoyed a general atmosphere of (not altogether perfect, but somewhat unique) tolerance that would probably surprise most outside prejudicially peeking in – more recently there have admittedly been cultural shifts and challenges (compliments of the prison and some unfortunate degree of drug trafficking and abuse). But I think Ely and WPC deserve credit for a tolerant history and a generosity of spirit that I’ve found can often rival similar sized towns. Vocal negativity and pessimism have recently echoed in a few corners, but most who come and go or decide to stay discover a stronger ‘live and let live’ attitude than expected, or I have been told to no surprise. Sounds like another intelligent and articulate professional has discovered Ely – I’m sure your interest and intellectual investment adds value to the latest version of the melting pot.

        (And now we can probably expect a contradictory comment to this post, as if to prove my point.)

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