You’re a New Jersey teen and want counseling on changing your body from that of a woman to a man. No problem, state counseling laws have a slot open for you.
But, according to a petition to the U.S. Supreme Court, the Garden State is a little less idyllic if you want to revert to your biological sex.
“If the client’s gender identity, mannerisms, or expressions differ from the client’s biological sex and the client’s feelings are unwanted – meaning [that] he does not want to transition from a male to a female identity – but instead wants to ‘change’ his female identity, mannerisms, or expression to conform to his biological sex, then [state law] forbids such counseling,” the petition says.
“Similarly, the statute permits the counseling of a client to affirm same-sex attractions, but prohibits counseling a minor to change unwanted SSA. Under no circumstances may a licensed counselor counsel a minor to change unwanted SSA. Nor may the counselor counsel a minor to change unwanted opposite sex mannerisms, expressions, or identity, even when the client wants to change them based on sincerely held religious beliefs,” it says.
The dispute is being raised by attorneys with Liberty Counsel, who have fought state censorship of counselors in both California and New Jersey. This is a challenge to a recently adopted state law that restricts what counselors may say to young clients in New Jersey.
Its petition for writ of certiorari to the high court right now is on behalf of licensed mental health professions who are providing, and families who are receiving, counseling to overcome their unwanted same-sex attractions and behaviors.
According to officials with Liberty Counsel, the 3rd U.S. Circuit Court of Appeals upheld New Jersey’s censorship plan, but its discussion created a split with another circuit on the appropriate level of scrutiny applied to regulators of such speech, and also on the issue of whether counseling even constitutes speech.
As the petition states, “[w]ithout proper guidance from this court on the appropriate categorization of communications between counselor and client or doctor and patients, these professionals are constantly at risk of statutes, such as A3371, that seek to remove their communications from the requisite level of protection afforded by the First Amendment.”
Said Liberty Counsel in a statement, “The idea is not sound that all speech by licensed professionals can be silenced simply by virtue of the individual holding a professional license. Professional licensing statutes do not give the state veto power of disfavored viewpoints and speech of licensed professionals. The First Amendment simply does not tolerate such overreach.”
The petition continues, “A3371 represents a gross intrusion into the sacrosanct area of the relationship between counselors and clients and doctors and patients. This relationship, and the therapeutic alliance that develops between counselor and client and doctor and patient, is one of the oldest and most protected in the nation’s history.”
Mat Staver, chief of Liberty Counsel, said, “If counseling regarding change is banned today in New Jersey, tomorrow a different legislature with an opposite political agenda could ban affirmation and allow only counsel regarding change. The state thwarts self-determination when it interferes with the counselor-client or doctor-patient relationship.”
Liberty Counsel explained, “SOCE counseling has been singled out for prohibition merely because the state is opposed to and disagrees with the goal of some clients who want to change or eliminate their unwanted SSA and to conform their identity, behaviors, and attractions to their own self-perception or conform them to their sincerely held religious beliefs.”
The lower courts ruled that the state’s restrictions on counselors’ speech “does not directly or indirectly implicate, regulate, or target speech on its face.”
The Supreme Court needs to address the issue because, among other reasons, the circuit appellate courts have issued rulings that disagree, LC said.
WND reported earlier that the 9th U.S. Circuit Court of Appeals in California said the counseling is “conduct,” and not speech at all.
In the New Jersey dispute, Liberty Counsel represents two licensed mental health professionals, the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors.
When the 9th Circuit released its opinion in the California case, there was a stinging rebuke in the dissent.
“May California remove from the First Amendment’s ambit the speech of certain professionals when the state disfavors its content or its purpose? – The Supreme Court has definitely and unquestionably said ‘No.’ It is no longer within our discretion to disagree,” said the minority opinion from Judge Diarmuid O’Scannlain.
He was joined by two other judges in the dissent, which said, “Legislatures cannot nullify the First Amendment’s protections for speech by playing this labeling game.”
“Indeed,” he said, “authoritative precedents have established that neither professional regulations generally, nor even a more limited subclass of rules, remain categorically outside of the First Amendment’s reach.”
Wrote O’Scannlain: “The panel cites no case holding that speech, uttered by professionals to their clients, does not actually constitute ‘speech’ for purposes of the First Amendment. And that should not surprise us – for the Supreme Court has not recognized such a category. … The Supreme Court has chastened us lower courts for creating, out of whole cloth, new categories of speech to which the First Amendment does not apply. But, that is exactly what the panel’s opinion accomplishes in this case.”
