Sex and the City, and Other Onscreen Treats

Sarah Seltzer

This spring brought us a host of female-centric movies, but none hit the sweet spot of genuine artistry and popular subject matter.

This spring brought us a host of female-centric movies, but none hit the sweet spot of genuine artistry and popular subject matter.

When the first Sex and the City film came out, feminists wrote that the film failed to live up to the show’s hallmark probing-of-modern-womanhood-and-its-discontents. We lamented the fact that years after the series had ended, no suitable entertainment franchise for women had come along to tread upon the ground Carrie and co. had broken with their pointy heels and merrily complex sex lives.

That was before Twilight, a franchise so dispiriting in content that it led many who lamented SATC‘s occasionally poor feminist credentials to pine for the days when Sarah Jessica Parker’s midriff-revealing tops bore the standard for empowerment.

And then came last weekend’s Sex and the City 2: [Insert sequel joke here.] Trailers promised a film that would be bloated with corny puns, take advantage of every crude Orientalist trope imaginable during a sequence in Abu Dhabi, and flaunt material goods in a manner discordant with the current, more impoverished, zeitgeist.

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The Sex and the City 2 trailer

Fortunately or un-, the movie delivered on these promises. It was indeed overly long and full of obvious gag lines, had an embarrassing and lengthy detour to “The New Middle East” which involved resurrecting as many old stereotypes as possible, and indulged in a fashion and interior-decorating orgy that moved from couture into camp.

And yet, despite these not insignificant problems, and more than a few snoozeworthy sequences. I was among those baffled by the insane level of vitriol and disgust that ran through the mainstream reviews of SATC2. The bile was spewed by many of the same critics who fawned over the supposed cleverness of Hot Tub Time Machine [yep!] and who adored the original Iron Man, a movie as plotless, racist, and full of expensive toy-fetishes as this one, if not more. This movie ran straight up against a truly gendered distaste–a pile on, if you will, of everyone trying to outdo each other to torment the middle-aged women with disposable incomes. It’s a little unfair. If we’re going to evaluate superhero films within the context of their (shallow) genre, then it’s time we do the same for carnival-like women’s escape flicks.

As to the merits of the film itself, I confess that I enjoyed SATC2 more than its predecessor (yes, that’s not a particularly tall order). As generally offensive and un-sharp as the film was, its central foursome, of whom many of us grew quite fond in yesteryear, seemed more true to their original conceptions this time around. Miranda returned to being a more softened version of herself, as she had evolved to be by the series’ end. Instead of being a shrill harpy, she got to help Charlotte have one of her signature “patriarchy isn’t all that great” moments, admitting that devoting oneself to motherhood wasn’t tantamount to bliss. Meanwhile Samantha was happily single, no longer dangling in an unfulfilled relationship, and therefore back to her sexed-up shenanigans. Carrie had also returned to being as status-conscious and emptily, breezily contemplative as we’ve expected her to be–not the mute depressive she was in the first film.

The screenwriters also neglected to utterly dumb down the script, accidentally allowing some interesting lines to slip through, lines that garnered a chorus of “uh-huhs” from my packed theater. When complaining about her sexist boss, Miranda remarked that men in America pretend to be pro-women’s empowerment, but secretly wouldn’t mind if we were veiled. Yes, free vs. veiled is a reductive comparison, but the point that women’s voices are still not heeded in the “land of the free” clearly resonated. Another moment I noticed was when Miranda told Charlotte that “motherhood is great–but it’s not enough.” This also hit major chord for the audience, who being women, are doubtless often told that saintly, self-sacrificing motherhood should be the sum of their natural urges.

If only the film had spent more time investigating these kinds of real women’s dilemmas–in a feminist way or not–instead of having a twenty-minute furniture tour of an Abu Dhabi hotel led by a “magical Desi” character. If only the franchise could honor its multi-racial, multi-cultural, devoted audience by giving them escapism that isn’t invariably racist. And if only, during the previews, they hadn’t run out of comedies to advertise and switched to hyping upcoming “weepies.” You see, there aren’t even enough rom-coms in the pipeline to fill up the trailer slots for the biggest women’s film of the summer. So Sex and the City remains the ace up that genre’s sleeve. It’s enough to make you want to down a bunch of drinks that end with “tini.”


The Just Wright trailer

If Sex and the City 2 failed to even approach sensitivity when it came to race but did better justice to its characters than it might have, Just Wright, commissioned by Queen Latifah’s production company and directed by a female auteur, Sanaa Hamri, had the opposite problem. Just Wright contains a love triangle between an injured NBA player and two Jersey girls, best friends and polar opposites. It was lovely to watch a rom-com with a confident, larger woman of color at its center, but the dichotomy between Latifah’s girl next door protagonist and her gold-digging, makeup-loving foil played by Paula Patton was paint-by-the numbers and trite. And as pleasant as it felt to watch a woman onscreen with a career as a physical therapist and a real set of interests (Hamri’s other feature film, Something New accomplished this as well), the heroine’s passion for basketball and jazz felt like a gesture rather than a personality. The film hovered in that deadly rom-com limbo between having real, believable characters with actual flaws, and being so over the top you dont care that they’re not real. And yet that this film was no less wooden than your average mainstream chick-flick, particularly one starring Katherine Heigl. It’s unfortunate that silly films with white women at their center are seen as being for everyone, while fluffy films like this are pigeonholed as Af-Am interest flicks. Hamri loves making truly romantic movies about strong African-American women with accomplished lives, and she has a glossy mainstream touch as a director that could go far. So I can’t wait for her next project–I just hope it has a better script than this one.

After these two flicks left me feeling rather savage about women’s movies, I felt it incumbent upon me to catch a female-directed and penned film that was critically beloved, Nicole Holofcener’s Please Give. Centering around a woman (Catherine Keener) who buys estate furniture and resells it for a profit, the film is an exquisite, hilarious and sad portrait of existential angst–of the female variety.


The Please Give trailer

This film takes place among moneyed and middle-class New Yorkers, but it couldn’t be more different than SATC2 in its approach, choosing to zoom in on its characters’ ugly flaws, their class privilege and the neuroses that are a function and luxury of that privilege. “Please Give” catches the subtle rhythms of women’s lives, the way we evaluate ourselves by sizing up other women. It also catches the way all of society’s anxiety about death and aging seems to end up focusing in on women’s appearances: men deal with aging by lusting after younger women, while women envy each others’ seeming beauty. The scenes between Keener and her acne-prone teenage daughter during a jean-shopping expedition ring so true to mother/ daughter relationships that it’s almost too much to watch. Several of the female characters are crippled by guilt, and Holofcener pokes fun at them, but also seems to suggest that women often carry the caretaking burden of society; we also often can’t enjoy material or romantic success because we feel that we’ve somehow robbed someone else. (All of this couldn’t ring more true days after seeing SATC–look at how critics reacted to older women with money who didn’t feel bad about it.)

Moviegoers are more interested in fantasies about Prince Charming and fancy real estate than a darkly comic, unflinching probing of the connection between women’s anxiety about our appearance and our inevitable deaths. Fair enough. It’s too bad–if a touch of “Please Give”s excellent characterization, ironic self-knowledge, and sharp script was allowed to bleed into mainstream romantic comedies, they’d be back in business.

Commentary Economic Justice

The Gender Wage Gap Is Not Women’s Fault, and Here’s the Report That Proves It

Kathleen Geier

The fact is, in every occupation and at every level, women earn less than men doing exactly the same work.

A new report confirms what millions of women already know: that women’s choices are not to blame for the gender wage gap. Instead, researchers at the Economic Policy Institute (EPI), the progressive think tank that issued the report, say that women’s unequal pay is driven by “discrimination, social norms, and other factors beyond women’s control.”

This finding—that the gender pay gap is caused by structural factors rather than women’s occupational choices—is surprisingly controversial. Indeed, in my years as a journalist covering women’s economic issues, the subject that has been most frustrating for me to write about has been the gender gap. (Full disclosure: I’ve worked as a consultant for EPI, though not on this particular report.) No other economic topic I’ve covered has been more widely misunderstood, or has been so outrageously distorted by misrepresentations, half-truths, and lies.

That’s because, for decades, conservatives have energetically promoted the myth that the gender pay gap does not exist. They’ve done such a bang-up job of it that denying the reality of the gap, like denying the reality of global warming, has become an article of faith on the right. Conservative think tanks like the Independent Women’s Forum and the American Enterprise Institute and right-wing writers at outlets like the Wall Street Journal, Breitbart, and the Daily Caller have denounced the gender pay gap as “a lie,” “not the real story,” “a fairy tale,” “a statistical delusion,” and “the myth that won’t die.” Sadly, it is not only right-wing propagandists who are gender wage gap denialists. Far more moderate types like Slate’s Hanna Rosin and the Atlantic’s Derek Thompson have also claimed that the gender wage gap statistic is misleading and exaggerates disparities in earnings.

According to the most recent figures available from the Census Bureau, for every dollar a man makes, a woman makes only 79 cents, a statistic that has barely budged in a decade. And that’s just the gap for women overall; for most women of color, it’s considerably larger. Black women earn only 61 percent of what non-Hispanic white men make, and Latinas earn only 55 percent as much. In a recent survey, U.S. women identified the pay gap as their biggest workplace concern. Yet gender wage gap denialists of a variety of political stripes contend that gender gap statistic—which measures the difference in median annual earnings between men and women who work full-time, year-round—is inaccurate because it does not compare the pay of men and women doing the same work. They argue that when researchers control for traits like experience, type of work, education, and the like, the gender gap evaporates like breath on a window. In short, the denialists frame the gender pay gap as the product not of sexist discrimination, but of women’s freely made choices.

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The EPI study’s co-author, economist Elise Gould, said in an interview with Rewire that she and her colleagues realized the need for the new report when an earlier paper generated controversy on social media. That study had uncovered an “unadjusted”—meaning that it did not control for differences in workplace and personal characteristics—$4 an hour gender wage gap among recent college graduates. Gould said she found this pay disparity “astounding”: “You’re looking at two groups of people, men and women, with virtually the same amount of experience, and yet their wages are so different.” But critics on Twitter, she said, claimed that the wage gap simply reflected the fact that women were choosing lower-paid jobs. “So we wanted to take out this one idea of occupational choice and look at that,” Gould said.

Gould and her co-author Jessica Schieder highlight two important findings in their EPI report. One is that, even within occupations, and even after controlling for observable factors such as education and work experience, the gender wage gap remains stubbornly persistent. As Gould told me, “If you take a man and a woman sitting side by side in a cubicle, doing the same exact job with the same amount of experience and the same amount of education, on average, the man is still going to be paid more than the woman.”

The EPI report cites the work of Harvard economist Claudia Goldin, who looked at the relative weight in the overall wage gap of gender-based pay differences within occupations versus those between occupations. She found that while gender pay disparities between different occupations explain 32 percent of the gap, pay differences within the same occupation account for far more—68 percent, or more than twice as much. In other words, even if we saw equal numbers of men and women in every profession, two-thirds of the gender wage gap would still remain.

And yes, female-dominated professions pay less, but the reasons why are difficult to untangle. It’s a chicken-and-egg phenomenon, the EPI report explains, raising the question: Are women disproportionately nudged into low-status, low-wage occupations, or do these occupations pay low wages simply because it is women who are doing the work?

Historically, “women’s work” has always paid poorly. As scholars such as Paula England have shown, occupations that involve care work, for example, are associated with a wage penalty, even after controlling for other factors. But it’s not only care work that is systematically devalued. So, too, is work in other fields where women workers are a majority—even professions that were not initially dominated by women. The EPI study notes that when more women became park rangers, for example, overall pay in that occupation declined. Conversely, as computer programming became increasingly male-dominated, wages in that sector began to soar.

The second major point that Gould and Schieder emphasize is that a woman’s occupational choice does not occur in a vacuum. It is powerfully shaped by forces like discrimination and social norms. “By the time a woman earns her first dollar, her occupational choice is the culmination of years of education, guidance by mentors, parental expectations, hiring practices, and widespread norms and expectations about work/family balance,” Gould told Rewire. One study cited by Gould and Schieder found that in states where traditional attitudes about gender are more prevalent, girls tend to score higher in reading and lower in math, relative to boys. It’s one of many findings demonstrating that cultural attitudes wield a potent influence on women’s achievement. (Unfortunately, the EPI study does not address racism, xenophobia, or other types of bias that, like sexism, shape individuals’ work choices.)

Parental expectations also play a key role in shaping women’s occupational choices. Research reflected in the EPI study shows that parents are more likely to expect their sons to enter male-dominated science, technology, engineering, and math (often called STEM) fields, as opposed to their daughters. This expectation holds even when their daughters score just as well in math.

Another factor is the culture in male-dominated industries, which can be a huge turn-off to women, especially women of color. In one study of women working in science and technology, Latinas and Black women reported that they were often mistaken for janitors—something that none of the white women in the study had experienced. Another found that 52 percent of highly qualified women working in science and technology ended up leaving those fields, driven out by “hostile work environments and extreme job pressures.”

Among those pressures are excessively long hours, which make it difficult to balance careers with unpaid care work, for which women are disproportionately responsible. Goldin’s research, Gould said, shows that “in jobs that have more temporal flexibility instead of inflexibility and long hours, you do see a smaller gender wage gap.” Women pharmacists, for example, enjoy relatively high pay and a narrow wage gap, which Goldin has linked to flexible work schedules and a professional culture that enables work/life balance. By contrast, the gender pay gap is widest in highest-paying fields such as finance, which disproportionately reward those able to work brutally long hours and be on call 24/7.

Fortunately, remedies for the gender wage gap are at hand. Gould said that strong enforcement of anti-discrimination laws, greater wage transparency (which can be achieved through unions and collective bargaining), and more flexible workplace policies would all help to alleviate gender-based pay inequities. Additional solutions include raising the minimum wage, which would significantly boost the pay of the millions of women disproportionately concentrated in the low-wage sector, and enacting paid family leave, a policy that would be a boon for women struggling to combine work and family. All of these issues are looming increasingly large in our national politics.

But in order to advance these policies, it’s vital to debunk the right’s shameless, decades-long disinformation campaign about the gender gap. The fact is, in every occupation and at every level, women earn less than men doing exactly the same work. The right alleges that the official gender pay gap figure exaggerates the role of discrimination. But even statistics that adjust for occupation and other factors can, in the words of the EPI study, “radically understate the potential for gender discrimination to suppress women’s earnings.”

Contrary to conservatives’ claims, women did not choose to be paid consistently less than men for work that is every bit as valuable to society. But with the right set of policies, we can reverse the tide and bring about some measure of economic justice to the hard-working women of the United States.

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.