Get Real! Is Intercourse A Violation?

Heather Corinna

Physically, and often emotionally, sex is about both people being actively engaged, doing something together, not about one person doing something to, on or at the other.

stullis asks:

I’ve
been with my girlfriend for nearly six months now. I’ve always had a
bit of a problem having sex with people (keeping it up) but this
problem has never occurred between me and her. However, lately I’ve
begun to feel very guilty about the physical action of having sex. The
act of penetration is a great experience physically, but when I think
about what I’m doing I feel like I’m stabbing her, or performing some
kind of violent act on her. We haven’t had sex yet since I started
REALLY feeling like this (which was a little more than three weeks ago)
but if we are making out and begin to have dry sex I often start to cry
from the idea of what I am doing to her. She’s very compassionate and
understanding, and I have told her all of this, but I want it to stop.
I need to know how to make myself stop feeling like I am abusing her
when we have sex because considering the times we’ve had sex before I
had this mindset, it’s been an incredible experience of expressing our
love to each other, and I’d really like to have that back.

Heather replies:

I think it might help if you made some adjustments to the way you think about intercourse and sex as a whole.

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You use the word penetration, and talk about what you’re doing as
stabbing or a kind of invasion. I also hear you saying that sex is
something you are doing to your partner or on your partner rather than with your partner, or as something you are doing together. You frame sex — as many people do, unfortunately — as something you have, rather than as something people actively and jointly do or create.

Physically, metaphysically, and often emotionally and intellectually
(sometimes even spiritually), sex is about people and their bodies
interlocking in any number of ways, and about BOTH sets of genitals (or
other parts), both bodies, both people being actively engaged, doing
something together, not about one person doing something to, on or at the other.

I know that can be quite the mental headstand when there are so many
ideas and presentations of intercourse as men forcing themselves into
women, as vaginas or vulvas as somehow passive and only penises as
active, and with heterosexual sex, as what men do to women, how men
dominate women, but those ideas come more from political agendas and
sexism — and reactions to inequality and those agendas — than they do
from what is really happening with intercourse or other sex when any
two (or more) people are sharing an experience that is mutually wanted,
about mutual pleasure and real connectivity.

Let’s take a look at a bit from Let’s Get Metaphysical: The Etiquette of Entry:

There are debates within different feminist perspectives
about how we construct the ideas of entry and intercourse, and whether
these actions can ever truly be based in equality. Some feminists argue
that patriarchy has institutionalized both intercourse and sex as a
whole, making it not about merging or sharing of pleasure, but about
dominating someone and expressing power over someone, particularly when
you look at intercourse between individuals that could possibly result
in pregnancy.

Plenty of men have been reared with these kinds of ideas about sex
so intensely and unilaterally that they either don’t know that it’s not
about conquering or forcing their way into someone or something, or, if
they do realize that this is not an accurate portrayal of sex, it can
still take some time for them to relearn sexuality outside of that
limited and dangerous construction. Women, too, have received these
messages, and some will still hold closely to the idea that they should
play a certain role in relationships or sexuality, or that they are
obligated to "do one’s duty" as a romantic or sexual partner.

But is mindfully entering into a woman’s body, or anyone’s body, who
WANTS you there, with respect, a violation? If so, how? There seem to
be some profound flaws in some theories which critique these kinds of
sex and suggest it is violating, flaws which include heterosexism (as
men can be entered, too), dismissal of the fact that a woman’s body is
not passive (again, our mouths or vulvas and vaginas or anuses don’t
"just lay there" when we are excited and wanting a given kind of sex),
and, at times, assumptions that relationships between genders can never
come from true respect and equality.

If a given person thinks about entering someone else’s body who
wants them there, who takes them in gladly and with a strong desire to
do so, as a violence or a violation, in some sense, they may be
dismissing that person as a whole person; an equal person with equal
agency, equal want, equal desire, equal sexuality. It may be thinking
about your body as having a power or force which her body does not, or
which her body has less of.

In other words, if your girlfriend very much wants you inside her
body, if she welcomes and takes you into her body, and makes clear
that, for her, this is not about being violated, but about her desire,
about pulling and holding you inside of her (the vagina is a strong,
active muscle, after all, and it can pull in as well as resist), having
you be part of her? To stay stuck in the idea that it MUST be a
violation in some way denies her full personhood, full embodiment, and
kind of insists she must be an object in some sense. In other words, it
can be kind of sexist.

In case that’s too esoteric, let’s try a different example of a
similar dynamic. I apologize in advance for yet another cooking analogy
from me on the site: I cook a lot, and sex and food have a lot in
common.

I want to make a dinner for a friend as a surprise, I buy all the
groceries myself, do all the cooking. They come over and insist that to
share that meal with me would be robbing me of my food or my labor, or
being self-centered since they didn’t help pay for or make any of it.
They’d be denying my own motivation and intention to give them a gift,
to take part in something with me, and to share something I wanted to
share. They’d also be denying the pleasure I got — and sought out, of
my own free will — from planning that surprise, buying and choosing my
ingredients, cooking and serving the meal and enjoying the pleasure I
expected them to have in a lovely, surprise meal. See what I mean?

To change your mind on this, I think it could help to change your language, even if it feels weird at first.

I would suggest — even just in your head, which should be easy
since you probably don’t say "I want to penetrate you," when initiating
sex — switching out "penetration" for something like "interlocking" or
"intercoursing." You might even flip the script entirely for a while
and make it about ONLY what her body does and think of it as something
like engulfing or surrounding. I’d suggest exchanging the idea of
"doing to" or "doing on," with "doing with." I’d say words like
"stabbing" just need to go in the rubbish bin, full-stop.

It might also be of value to you to give some thought to your ideas
around masculinity and femininity, both overall, and when it comes to
sex: you may find some culprits in your ideas around, or personal
definitions of, those concepts at play with this. You seem to express
discomfort with the physicality of sex on your part: that, for example,
might be something about how you think about men and women, and it
might help to remember that women have and enjoy physicality, too.

On violence: I’ve personally experienced a lot of violence in and
around my life, including sexual abuses, and I have found the literal
definitions of violence to be helpful to me, so I want to share those
with you:

1 a : exertion of physical force so as to injure or abuse (as in
effecting illegal entry into a house) b : an instance of violent
treatment or procedure
2 : injury by or as if by distortion, infringement, or profanation : OUTRAGE
3 a : intense, turbulent, or furious and often destructive
action or force b : vehement feeling or expression : FERVOR; also : an
instance of such action or feeling c : a clashing or jarring quality :
DISCORDANCE
4 : undue alteration

None of those definitions sound like any kind of wanted, consensual
sex to me. Even for people who negotiate and wantedly, mutually choose
to enact sex that is very aggressive, very rough, or which explores the
line between pain and pleasure, I still am not seeing a match here. The
definition that includes fervor can perhaps be an element of sex
sometimes, but if you really look at that definition, you’ll see that
none of it is about a mutuality. Mutual fervor, intensity or force in
the interest of shared pleasure or connection is not in dischord, is
not an abuse, is not an injury or violation.

If it helps, I can absolutely assure you that on the receptive end
of things, when a person physically, emotionally and intellectually
wants some part of their body entered, someone else’s body in their own
in some way, when they are turned on, when they are attracted to and
like or love who they are with (and sometimes even when they’re not!),
so long as they don’t have any kind of condition that makes entry
painful, and no one gets injured in any way, it does not feel
like being stabbed, cut open, punched or any of those traumatic things.
It also does not feel like being abused or sexually assaulted (though
if you have a partner who has rape or abuse history, PTSD or body
memories can sometimes influence that experience). I promise. Nothing
about being stabbed or assaulted feels good: wanted physical entry and
wanted sexual interlocking usually feels very good.

I think it might be smart for the two of you to do some more talking
about what your girlfriend’s experience of sex with entry is like.
Listen to what she says and give her feelings and words value and
merit. She’s the expert on what something feels like for her, after
all, not me or you.

By all means, if she says any kind of sex has felt painful or
violating, then talk about that to find out what has created those
feelings for her, and change up what you are doing, whether that means
being more gentle or slow with intercourse, engaging in more activities
first or with intercourse that aren’t about entry, having your
girlfriend be a more active or communicative partner during
intercourse, ditching intercourse altogether if it’s not something you
two like or feel good about and/or addressing some problematic dynamics
in your relationship as a whole which might be cause for feeling this
way. You may want to make any or all of those changes just for yourself
to alter your own experience: for instance, you don’t have to go very
fast or be forceful if that doesn’t feel emotionally or physically good
for you, even if it does for her.

It might also be helpful, as well as enjoyable, for you to
experience what entry is like on your end (no pun intended), so that
you have a better idea of what entry really feels like. You can have
your own experience in that way with a partner or by yourself with
receptive anal sex or stimulation on your part. Your mouth is also
something that can be receptive, so even having oral sex with a female
partner — particularly where you’re really having your mouth filled,
such as when that partner is positioned sitting on your mouth, rather
than lying in front of you — can fit that bill. What it’s like to
experience entry doesn’t have to be a mystery to you if you don’t want
it to be.

All of that said, how you feel about this matters and is valid, so
I’d consider if intercourse is truly something YOU want to be doing
right now, or is right for you in this relationship at this time; with
whatever given dynamics you have in the relationship, and in terms of
how you feel about yourself and your sexuality now. No one has to do
any given sexual activity: none are required. It may be that you need a
break for a while, which is absolutely okay, and I’d say sounds a lot
better than feeling like this when you try to have intercourse. It
might help to scale things back, perhaps even just thinking about how
entry is in some way going on with things like deep kissing, oral sex,
or even when one person’s hand closes over the other’s when we hold
hands.

I’m curious about this sudden change in how you feel about this, and
what may have spurred it on. You’re not the first guy who has asked me
about feeling this way, and sometimes when it’s been posted on our
boards, or been in a context where I could have an in-depth discussion
about it, I’ve had a couple common situations that I’ve noticed can
bring up these concerns or feelings.

One is seeing or hearing some sort of representation of sex that did
very much present it as a violence or violation — and sometimes really
applauding or fetishizing that violation — or did really objectify the
receptive partner. Hearing a lot about rape, if you don’t understand it
as being a very different thing than consensual sex, can also have this
kind of impact, as can seeing or hearing a demonstration of the idea
that male sexuality is some sort of terrible, uncontrollable beast
(which it is not).

If you’ve had good feelings about this so far, but then saw or heard
something like that, it can make you question your own truth, your own
feelings and experiences, and leave you wondering if perhaps your truth
wasn’t true and that one was. If something like that happened, I’d
encourage you to be critical of what you saw or heard, and also to
privilege your own experience and that of your partner. Even if a given
activity was, or was presented as, a violation for or to someone else,
that doesn’t mean it has been for the two of you. In other words, trust
what your shared experiences have been and have felt like: it seems
like up until recently, it has been very positive and loving for you
both.

Another common link I’ve seen with people feeling this way is
previous guilt or shaming around sex (or certain kinds of sex), around
their gender or previous sexual abuse. I don’t know anything about your
sexual history beyond what you have shared with me here, but if you
have any shaming, sexual guilt and certainly sexual abuse in your past
or present, that may also have to do with how you are feeling right
now. If any of that is so, I’d suggest getting connected with a
resource — be it an online support group or a counselor in-person —
who can help you work through that history or those feelings, both for
the quality of your sex life and the quality of your life as a whole.

I don’t know what caused this change, or if it was even anything
concrete like this. But I think it’d be good for you to think about if
there was something that might have — or absolutely did — spurred
this change of heart on, and if you can identify what it is, to just
give some big, focused thought around it, and liberally apply plenty of
perspective.

Okay? By all means, I think reading the rest of that piece I quoted
from about the etiquette of entry will be a boon to you, but I also
want to leave you with a few more links that may be of help. I’m going
to include some links on rape and abuse to help illuminate the
difference for you between sexual violence and wanted, consensual sex.

Before I do that, though, I want to leave you with a reminder that
you came here asking about this. You came here concerned about yourself
and your partner, and you came expressing a very mindful,
loving, caring dynamic and a want for same. In other words, I’d like to
encourage you to trust yourself, and see if you can’t grow some real
faith in the fact that nothing you are expressing here suggests that
you are a violent or abusive person, or that you are likely to commit a
violence towards your partner. I am personally not concerned that you
are, have been, or will become sexually violent. I hope you can again
feel the same way about you.


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.

News Politics

Democratic Party Platform: Repeal Bans on Federal Funding for Abortion Care

Ally Boguhn

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.”