Prohibiting mental health specialists from talking to their adult clients about a subject those clients are seeking help for is always a bad idea, First Amendment-wise. New York City has tacitly acknowledged that truth in settling a lawsuit involving an Orthodox Jewish psychotherapist.
Dr. Dovid Schwartz has been counseling clients for 50 years in the New York City area. His clients include those seeking help with unwanted same-sex attraction or gender identity issues.
In 2018, the New York City Council made it illegal – punishable by $10,000 fines – to provide such services for a fee. In the words of the city ordinance, it is unlawful to “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.” However, it was perfectly fine, under the law, for a professional like Dr. Schwartz to encourage same-sex attraction or steer a client with gender dysphoria toward adopting a gender different than his or her biological sex.
In 2019, Dr. Schwartz, with the help of attorneys at Alliance Defending Freedom (ADF), filed a lawsuit against the City of New York alleging that the law violated the free speech rights of Schwartz and his clients.
The lawsuit forced the city council to re-think its ordinance. Cooler heads prevailed, and the ordinance was rescinded late in 2019.
The settlement of the underlying lawsuit, announced by ADF this week in a press release, included payment of $100,000 to Dr. Schwartz for his attorney fees and costs incurred in bringing the lawsuit, plus nominal damages. ADF believes the settlement will send a message to other cities considering similar bans.
“All New Yorkers and all Americans deserve the right to private conversations, free from government control,” said ADF Senior Counsel Roger Brooks. “New York City directly violated our client’s freedom of speech by trying to regulate and censor private sessions between an adult and his therapist. While the city eventually saw the writing on the wall and reversed course, it needlessly cost the taxpayers of New York tens of thousands of dollars for enacting its unconstitutional policy in the first place, because Dr. Schwartz was forced to go to court to protect his rights. Other cities should not repeat the same error. We’re grateful that New York City is no longer threatening to censor Dr. Schwartz’s conversations and impose government-approved orthodoxy on him or his patients.”
Other cities and states have passed bans on such counseling where minors are involved. Those bans have been upheld in a couple of court decisions. New York City’s ban went beyond those, however, by prohibiting talk therapy with adults.
Whenever speech is prohibited, the government needs a compelling interest justifying it, if it is to pass First Amendment scrutiny. Outlawing speech between a professional therapist and an adult patient, however, had no chance of passing that test in the case of the New York City ordinance.
The case is Schwartz v. City of New York.