2022 State Legislative Sessions: An Overview on Counseling Bans and Counseling Protections

2022 State Legislative Sessions: An Overview on Counseling Bans and Counseling Protections

As America’s youth increasingly grapple with confusion and distress related to same-sex attraction or gender dysphoria, the counseling and talk therapy they need is being outlawed. Counseling bans have spread across the nation, restricting what licensed mental health care professionals can say to their patients and (by extension) what help patients can seek from their therapists. A response is needed from state legislators to protect access to this much-needed counseling.

Counseling bans typically mandate that licensed mental health care professionals use a “gender-affirming” model of care with their patients. These laws prohibit engaging in “conversion therapy,” a pejorative term that evokes images of discredited practices such as electroshock or other pain-inducing methods. However, the definition of “conversion therapy” used in counseling bans is so broad that it includes talk therapy. For example, these bans prohibit a counselor from conducting a thorough assessment and asking about underlying issues because to do so might be interpreted as questioning the patient’s presentation as a gender other than their biological sex. This means licensed mental health care professionals are prohibited from discussing unwanted same-sex attraction or gender dysphoria with their patients, even if the patient and/or a minor patient’s parents desire such counseling. If found guilty, licensed mental health professionals (and in some cases, lay counselors, e.g., clergy) face penalties, such as loss of licensure. Additionally, some counseling bans ensure that no state funds will be expended for such talk therapy, and some even prohibit advertising by, or referrals to, therapists who question the “gender-affirming” model.

Twenty states (plus the District of Columbia) have such counseling bans in place, and they’ve been introduced in 17 more states this year (including bills that were carried over from last year). Most of these bills apply specifically to licensed mental health professionals, but a local ordinance proposed in West Lafayette, Indiana, went much further. The proposed ordinance would have applied to “unlicensed persons” as well, meaning pastors and church counselors would have been subject to hefty fines for having conversations with church members and counselees about what the Bible teaches about human sexuality. Fortunately, this ordinance was withdrawn after concerned citizens spoke up. This example illustrates how counseling ban bills will likely become more expansive over time. In recent years, versions that would apply to both minors and consenting adults have become more frequent.

Thankfully, state legislators are beginning to introduce legislation to protect the free speech of mental health care professionals and the right of patients to receive whatever type of talk therapy they choose. Thirteen states have proposed counseling protection acts to protect both counselors and patients. Ideally, these bills will contain the following provisions:

• Prohibit the state and its political subdivisions from restricting the rights of mental health care professionals to counsel patients with unwanted same-sex attraction or gender dysphoria, as well as the right of patients and/or their parents to choose such counseling.
• Provide that individuals may give and receive counsel for unwanted same-sex attractions or gender dysphoria in accordance with their religious or moral convictions.
• Provides a private right of action.

Some versions also create a cause of action for patients and/or mental health professionals whose rights are violated.

Although no counseling protection acts have been passed so far, momentum is building, and eight states proposed them this year. Of these, Oklahoma’s H.B. 2973 was the strongest, as it included all of the above provisions, except a private right of action (which Texas SB 15 does provide).

Legislators need to make protecting vulnerable minors’ access to counseling a top priority. Children and teenagers in 20 states cannot legally access counseling and talk therapy to address unwanted same-sex attraction or gender dysphoria, even if they want to. Some states are trying to take away that right from consenting adults as well. This blatant disregard for the mental health of minors in service to a crusade to normalize gender identity ideology is unacceptable and must be addressed immediately. Our vulnerable neighbors deserve better.