In 2017, the New York City Council voted to ban so-called “conversion therapy,” any paid services offered to individuals to help them with unwanted homosexuality or transgenderism. Mayor Bill de Blasio, whose wife Chirlane McCray used to identify as lesbian, returned the bill unsigned, allowing it to take effect in May, 2018. Whether or not she went through therapy as part of her process of leaving homosexuality, she and de Blasio certainly know something about sexual fluidity and change.
While many state therapy bans apply only to minors, the New York ban included adults. The legislation allowed consumers to file a complaint with the city’s Department of Consumer Affairs and imposed fines of $1,000 for first violations, $5,000 for a second, and $10,000 for each subsequent violation.
And now, less than two years later, New York City Council speaker Corey D. Johnson has introduced legislation to repeal the ban. As Johnson explained in a post at Medium, he became concerned when the Alliance Defending Freedom (ADF), filed a lawsuit against the City of New York and the Commissioner of the Department of Consumer Affairs, challenging the ban.
ADF filed the case on behalf of Dr. Dovid Schwartz, an Orthodox Jew who’s worked as a licensed psychotherapist for more than 50 years. He writes, “My patients come to see me because they are struggling with fears, of one kind or another. Feeling enslaved to something stronger than themselves, they want to be free. Some struggle with their sexuality, or with same-sex attraction. They want to move past those feelings; they ask for my help. So I listen. I make some suggestions, which they are free to embrace or ignore.”
Schwartz explains that the ban made it illegal for him to provide help for “people uncomfortable with their same-sex attractions, or confused about their gender identity,” as he asks, “When did our government decide it could tell patients what to feel?” He filed the lawsuit against the city for violating his free speech and religious freedom – and that of his clients.
Roger Brooks, Alliance Defending Freedom Senior Counsel agreed, saying, “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.”
While he doesn’t know whether the lawsuit against the city would have been successful, Johnson noted two concerns. First, he writes, “I do know that in the two years since the Council passed our conversion therapy ban, our nation’s courts have become increasingly conservative.”
That’s due to the record number of court appointments of constitutionalist judges, made by President Trump and confirmed by the Senate. As our Judicial Analyst Bruce Hausknecht has previously reported, this includes two Supreme Court Justices and, as of early August, at least 43 appellate court judges.
Johnson also mentioned concerns about the Supreme Court decision that struck down California’s requirement that pro-life pregnancy resource centers be required to promote abortion, NIFLA v. Becerra. In that 5-4 decision, Justice Clarence Thomas specifically cited California and New Jersey lawsuits against therapy bans, saying the court did not recognize “professional speech” from licensed therapists as a separate category of speech, and thus speech that states and cities could control. In doing so, Thomas may have been signaling that therapy bans are an unconstitutional violation of the First Amendment, as governments attempt to prohibit and regulate speech between a therapist and a client.
Johnson said that he would not have moved to repeal the ban if NY state had not banned conversion therapy for minors. He writes, “The state law doesn’t cover adults, but under existing state and city consumer frauds laws, a person who went through conversion therapy could bring a lawsuit that they were defrauded.”
The city’s Department of Consumer Affairs has not yet responded to a question about how many complaints have been filed against such therapy. It’s unknown if complaints have been filed in any cities or states with therapy bans. The LGBT Committee of the Group for the Advancement of Psychiatry wrote in a 2016 paper, looking at possible therapy ban violations across the nation “As of this writing, to our knowledge, there have been no formal actions by a regulatory body against a provider for engaging in conversion therapy.”
Johnson said that many leading LGBTQ leaders urged him to repeal the ban. He also mischaracterized ADF, which has successfully battled in the courts for free speech and religious freedom, as a “hate group,” citing the widely discredited Southern Poverty Law Center.
Opponents of change from homosexuality and gender confusion created the term “conversion therapy” and describe it as coercive or physically abusive, which of course Focus on the Family opposes. Such practices are already unethical for licensed counselors and for ministry leaders. But the New York ban went far beyond this. The only techniques Schwartz offered were listening and talking with clients who sought him out. As ADF describes, these patients want to live consistently with “their religious beliefs and personal life goals.”
Roger Brooks concludes, “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.”