Last week, the House Committee on Foreign Affairs approved HR 5501, the global AIDS reauthorization act. This bill will soon reach the House floor for a final vote. House action took place just days after I returned from Uganda, where I spent nearly two weeks talking to people on the front lines of the global struggle against AIDS. My experience in Uganda and feedback from many of my organization's 375 grantees in 36 countries tells me that the House committee deserves the praise it has received for authorizing $50 billion to continue funding global AIDS programs over the next five years. However, these experiences also tell me that the bill still falls far short in eliminating onerous program restrictions under existing law and in reflecting lessons learned in trying to end this pandemic. The Senate must act to correct these weaknesses.
Over the past five years, funding from the President's Emergency Plan for AIDS Relief (PEPFAR) has provided access to anti-retroviral drugs (ARVs) to 1.4 million people in need of treatment and support for millions of families living with or affected by HIV and AIDS. We should be proud of these achievements, but we cannot let success in one area make us complacent. This year 2.1 million people worldwide will die of AIDS, and another 2.5 million men, women and children will become newly infected–nearly twice the number we have put on treatment after 5 years and 19 billion in U.S. dollars spent
Given these realities, it is impossible to overstate the need for effective prevention programs. In my discussions with Ugandan mothers living with HIV, doctors, Ugandan and U.S. government officials, and representatives of community-based groups working on the ground, there were two consistent themes: We need more help and we need to tackle this epidemic in the best ways we know how.
What Kind of Behavior Change Education?
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The original PEPFAR legislation required that one-third of all funds for prevention be directed towards abstinence-until-marriage programs and that organizations receiving PEPFAR funding adopt a policy opposing prostitution. Two highly-regarded studies, one by the Institutes of Medicine and another by the Government Accountability Office (GAO), found that the one-third earmark for abstinence programs undermines successful prevention efforts, in part by limiting flexibility on the ground. Both organizations called on Congress to strike the earmark. The House did so in theory, but replaced it with a new requirement that a minimum of 50 percent of funds for prevention of sexual transmission be allocated to "behavior change" as defined by Congress. Observers have called this a breakthrough.
We all agree that increases in abstinence, faithfulness and delay of sexual debut are critical components of comprehensive HIV prevention, as is promotion of safer sex practices–another critical aspect of "behavior change." But feedback from our partners in Uganda and in other countries suggests it is exactly these seemingly innocuous provisions now found in the House bill that cause the most trouble on the ground. For example, everyone I met credited Uganda's President Museveni for his early work on AIDS. The comprehensive approach to behavior change and safer sex in his country has led to dramatic declines in HIV prevalence since the early nineties. But since the advent of PEPFAR's ABC approach (abstain, be faithful, use condoms) in 2003, the emphasis in practice has moved almost exclusively to abstinence-only programs. According to officials who spoke to me on condition of anonymity, discussion of safer sex practices and condom use has largely disappeared from public rhetoric and funding restrictions have created "silos" between programs that should be integrated.
Reports now indicate that the rate of HIV infections in Uganda is on the upswing. In this context, the new language is not such a win after all. While organizations have the option of not complying, those that deviate from this formula must justify their decision to Congressional committees rife with ideological concerns. The vagueness of these requirements will not only have a chilling effect on programs, but will drain resources from the critical work at hand. We should instead be focused on providing funding to those groups most able to show success in achieving higher abstinence rates, delay of sexual debut and safer sex practices through whatever means they determine are best suited to their communities.
Given the negative effects of such requirements and the persistent pressure by ideologues seeking to hamstring comprehensive prevention here and abroad, this new language could cause just enough anxiety to force mission directors and public health officials to do what they think Congress wants rather than what is needed in the field. With seven new infections for every person put on treatment, this is a bad time for Washington to dictate confusing messages to public health professionals in disparate settings throughout the world.
Pledging Opposition to Prostitution Does Little to Help Sex Workers
The House also completely failed to strike the existing requirement that organizations receiving PEPFAR funds must adopt a policy "opposing prostitution." The prostitution pledge has led to de-funding of several of our key program partners, some of which have received international awards for their work. Other partners have refused funding. Indeed, my organization has refused PEPFAR funding under the faith-based initiative due to the requirements of this policy.
While I was in Uganda, I visited the Ladies Mermaid Bureau (LMB), a civic group that provides care, support and advocacy services for sex workers. These women, many of whom have been infected with HIV and face persistent stigma and discrimination, have found that sex work is the only economically viable way to feed their families. Because the young women I met implicitly trust LMB, the organization is in a unique position to provide prevention and testing services to their clients. The pledge, however, prevents LMB from receiving increased funding and support for its work–they cannot build essential trust among marginalized communities if they condemn their very existence at the same time.
Congress seems to think that forcing organizations to sign such a pledge will help contribute to ending prostitution. In reality the opposite may be true. According to one of our grantees, Ly Pisey of Women's Agenda for Change in Cambodia, these policies have led to the further alienation of already-stigmatized groups and have given free rein to police officials and others to rape, extort money from and otherwise discriminate against women in sex work. Instead of reducing dependence on sex work, the policy is driving sex workers underground and away from the NGOs and health workers best poised to help them.
The Global Gag Rule Should Not Apply to PEPFAR
Vague language in the new House bill may allow the next Administration to prohibit family planning programs from remaining or becoming partners in preventing the spread of HIV. Under current law and policy, eligibility for PEPFAR funds is not subject to other restrictions in US law, such as the global gag rule, which prohibits funding to any organization that so much as collects data on rates of unsafe abortion in places like Uganda, where, mind you, abortion is illegal unless a woman's life is endangered and complications of unsafe abortion are a leading cause of maternal death. The freedom to access PEPFAR funds has enabled groups like the Family Planning Association of Ethiopia, which provides critical pre- and post-natal care, maternal and infant care and family planning information and supplies to also offer women HIV education, counseling and testing. These programs, critical to stopping the spread of AIDS, have been a persistent target for a small group of legislators whose objective is to fully de-fund family planning altogether. Perhaps tellingly, while insisting the language is meaningless, the House minority and White House have refused to remove it.
Family Planning Funding Eliminated
Finally, in a particularly baffling decision, language supporting the purchase by PEPFAR of contraceptive supplies for HIV positive women was eliminated from the original draft House bill. In sub-Saharan Africa, hundreds of thousands of babies are born with HIV each year. While PEPFAR funding has increased access to drug treatment for pregnant women intended to prevent transmission of HIV to their newborn infants, it still remains grossly limited. In Uganda, for instance, only 20 percent of all pregnant women with AIDS can access these treatments. In one study in Uganda, 93 percent of HIV-positive women said their pregnancies were unintended. Access to voluntary services not only enables women to make informed choices about the number and timing of pregnancies, but also dramatically improves infant and child survival, and when reducing unintended pregnancies also reduces the number of new infections.
I can only conclude that when it comes to the poor and marginalized, ideology consistently wins over evidence-based policy. My faith instructs that saving lives should trump ideology in all instances. If our government is going to authorize a $50 billion AIDS package that will save some lives at the cost of others otherwise easily saved, I cannot stand by idly while my neighbor bleeds. This is why the Jewish community is calling on the Senate to take the bold steps necessary to put evidence before ideology.
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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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.
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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 attemptsto challengebans 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.
When asked this month about the platform’s opposition to Hyde, Hillary Clinton’s running mate Sen. Tim Kaine (D-VA) said that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde Amendment.”
Democrats voted on their party platform Monday, codifying for the first time the party’s stated commitment to repealing restrictions on federal funding for abortion care.
The platform includes a call to repeal the Hyde Amendment, an appropriations ban on federal funding for abortion reimplemented on a yearly basis. The amendment disproportionately affects people of color and those with low incomes.
“We believe unequivocally, like the majority of Americans, that every woman should have access to quality reproductive health care services, including safe and legal abortion—regardless of where she lives, how much money she makes, or how she is insured,” states the Democratic Party platform. “We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment.”
The platform also calls for an end to the Helms Amendment, which ensures that “no foreign assistance funds may be used to pay for the performance of abortion as a method of family planning.”
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Though Helms allows funding for abortion care in cases of rape, incest, and life endangerment, the Obama administration has failed to enforce those guarantees.
Despite the platform’s opposition to the restrictions on abortion care funding, it makes no mention of how the anti-choice measures would be rolled back.
Both presumptive Democratic nominee Hillary Clinton and Sen. Bernie Sanders (I-VT) have promised to address Hyde and Helms if elected. Clinton has said she would “fix the Helms Amendment.”
Speaking at the Iowa Brown and Black Presidential Forum in January, Clinton said that the Hyde Amendment “is just hard to justify because … certainly the full range of reproductive health rights that women should have includes access to safe and legal abortion.” In 2008, Clinton’s campaign told Rewire that she “does not support the Hyde amendment.”
When asked this month about the platform’s opposition to Hyde, Clinton’s running mate Sen. Tim Kaine (D-VA) said in an interview with the Weekly Standard that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde amendment.”
“The Hyde amendment and Helms amendment have prevented countless low-income women from being able to make their own decisions about health, family, and future,” NARAL President Ilyse Hogue said in a statement, addressing an early draft of the platform. “These amendments have ensured that a woman’s right to a safe and legal abortion is a right that’s easier to access if you have the resources to afford it. That’s wrong and stands directly in contrast with the Democratic Party’s principles, and we applaud the Party for reaffirming this in the platform.”