EC in Chile: Round Two

Andrea Lynch

More good news from Chile, where President Michelle Bachelet has refused to bow to reactionary forces in the Church and in the State, choosing instead to stand up for the reproductive rights of young women. Last week, she signed a decree to reinstate a program that would allow adolescent girls aged 14 and over free access to the morning-after pill. Her reasoning was simple: when taken correctly, emergency contraception is highly effective at preventing pregnancy. This is a particularly important resource in Chile, since according to government statistics, adolescents in Chile have 40,000 unwanted pregnancies a year—in fact, 15 percent of all births in Chile are to mothers 18 or younger, most without the means to afford quality care. Even though abortion is illegal under any circumstances—including life-threatening pregnancies, health-threatening pregnancies, and pregnancies resulting from rape or incest—over 100,000 Chilean women seek unsafe, illegal abortions every year, and over 30,000 of them wind up in the hospital with complications.

More good news from Chile, where President Michelle Bachelet has refused to bow to reactionary forces in the Church and in the State, choosing instead to stand up for the reproductive rights of young women. Last week, she signed a decree to reinstate a program that would allow adolescent girls aged 14 and over free access to the morning-after pill. Her reasoning was simple: when taken correctly, emergency contraception is highly effective at preventing pregnancy. This is a particularly important resource in Chile, since according to government statistics, adolescents in Chile have 40,000 unwanted pregnancies a year—in fact, 15 percent of all births in Chile are to mothers 18 or younger, most without the means to afford quality care. Even though abortion is illegal under any circumstances—including life-threatening pregnancies, health-threatening pregnancies, and pregnancies resulting from rape or incest—over 100,000 Chilean women seek unsafe, illegal abortions every year, and over 30,000 of them wind up in the hospital with complications.

The Chilean Health Ministry took steps to address this situation back in September, when it established a new set of norms that made birth control, including EC, available from public health centers free of charge, and allowed adolescents 14 and over to access the new services without parental consent. The Catholic Church immediately opposed the norms, and according to the New York Times, "condemned distribution of the pill as a form of abortion [wrong] that encourages promiscuity [wrong] and intrudes on personal freedoms [huh?]." The national conference of bishops went on to say that the new norms were "reminiscent of public policies established in totalitarian regimes, by which the state aimed to regulate the intimate lives of its citizens." Perhaps the bishops were referring to the unilateral criminalization of abortion during the final days of General Augusto Pinochet's dictatorship? Somehow, I doubt it.

Members of several right-wing parties were also quick to oppose the new norms, mainly because they lacked a parental consent requirement for adolescents. But as Chilean Health Minister Maria Soledad Barria pointed out, the age of consent in Chile is 14. Nevertheless, opponents took their cast to the Constitutional Court, and on January 12, distribution of EC was blocked based on an administrative technicality.

Undeterred, Bachelet has reinstated the norms by presidential decree, adding a counselling requirement for adolescents. Good for her! Now if only a prominent U.S. political figure would stand up for our right to access EC, given all this

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Roundups Sexual Health

This Week in Sex: A Nursing Home With a Healthy Attitude Toward Sex

Martha Kempner

A nursing home understands that its elderly residents are still sexual beings; New York City is amping up its youth sexual health outreach with emojis of eggplants and monkeys; and if forced to choose between eating and sex, a good number of people pick food.

This Week in Sex is a weekly summary of news and research related to sexual behavior, sexuality education, contraception, STIs, and more.

Sex Is Not Just for the Young

The New York Times recently profiled a nursing home with a sex-positive attitude for its residents. The Hebrew Home at Riverdale adopted its “sexual expression policy” in 1995 after a nurse walked in on two residents having sex. She asked her boss, Daniel Reingold, what she should do. He said, “Tiptoe out and close the door.”

Reingold, the president of RiverSpring Health (which runs the nursing home), said that aging includes a lot of loss—from the loss of spouses and friends to the loss of independence and mobility. But he believes the loss of physical touch and intimacy does not have to be part of getting older.

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The policy acknowledges that residents have the right to seek out and engage in consensual acts of sexual expression with other residents or with visitors. The policy ensures that staff understand that their role is not to prevent sexual contact. In fact, some of the staff like to play cupid for residents. Audrey Davison, an 85-year-old resident, said that the staff let her sleep in her boyfriend’s room, and one aide even made them a “Do Not Disturb” sign for his door. She added: “I enjoyed it and he was a very good lover.”

Still, there are complicating factors to dating in nursing homes or assisted-living facilities. Some residents may be married to people who don’t live in the facility, and others may be suffering from memory loss, dementia, or Alzheimer’s, which can raise issues of consent. Hebrew Home’s policy states that Alzheimer’s patients can give consent under certain circumstances.

Though not all nursing homes have formal policies about sex, many acknowledge that their residents are or want to be sexually active and are working to help residents have a safe and consensual experience. Dr. Cheryl Phillips, a senior vice president at LeadingAge, an organization which represents nursing homes and others who provide elder care, also told the New York Times that this generation of older adults is different: “They’ve been having sex—that’s part of who they are—and just because they’re moving into a nursing home doesn’t mean they’re going to stop having sex.”

Of course, not all residents are lucky in love when they move in. Hebrew Home says that about 40 of its 870 residents are in relationships. Staff are trying to help the others. They set up happy hours, a prom, and have started a dating service called G-Date (for “Grandparent Date”). So far it hasn’t been too successful in making matches, but the staff is convinced that someday their efforts will pay off with a wedding.

Can Emojis Connect Youth to Sexual Health Services?

New York City’s public hospital system, known as Health & Hospitals, provides confidential sexual health services—including pregnancy tests, contraception, and tests for sexually transmitted diseases (STDs)—for young people 12 and older regardless of their ability to pay, immigration status, or sexual orientation. Health & Hospitals served 152,000 patients last year, but its leaders think it could do even more if more young people were aware of the services offered.

As a way to speak the language of young people, Health & Hospitals launched a campaign starring emojis in July.

The emojis are expected to reach 2.4 million young people in New York City through social media including Facebook and Instagram. The emojis include an eggplant, a monkey covering his eyes, and, of course, some birds and bees. The online ads read, “Need someone to talk to about ‘it’?”

When young people click on the emojis, they will be taken to the Health & Hospitals youth website, which explains available services and how to find accessible providers.

Dr. Ram Raju, president and CEO of NYC Health & Hospitals, said in a press release that the organization provides nonjudgmental services to youth: “Whether it’s birth control, pregnancy testing, emergency contraception or depression screening, the public health system has affordable services in local community health centers, where we speak your language, understand your culture and respect your privacy.”

But some worry that these emojis are confusing. Elizabeth Schroeder, a sex educator and trainer, told the New York Times that while she applauded the effort, she questioned if the images chosen were the best to convey the message.

We here at This Week in Sex have to agree and admit the images confuse us as well. The monkey is cute, but what does it have to do with STDs?

Choosing Between Appetites, Many Pick Food

Good food or good sex? These two sources of pleasure are rarely at odds with each other, but if they ever are, which would you choose?

A new survey, by advertising agency Havas Worldwide, posed this very question to almost 12,000 adults in 37 countries across the globe. The results show that about half of adults (46 percent of men and 51 percent of women) believe that food can be as pleasurable as sex. And one-third would choose a great dinner at a restaurant rather than sex; women were more likely to make this choice (42 percent compared with 26 percent of men).

Millennials were also more likely to make this choice than those slightly older Gen-Xers (35 percent to 30 percent). Of course, it’s hard to tell whether this says more about their sex lives or their eating habits.

 

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.

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