Get Real! Did I Have Sex? Did I Lose My Virginity?

Heather Corinna

Sex is any number of different things people freely choose to do to tangibly and actively express or enact their sexuality and their sexual feelings.

Roxanne asks:

I’m 14. My boyfriend rubbed his penis on my vulva and I rubbed my vagina on his penis, but we were both wearing our underwear. Am I still a virgin? Was it sex? I don’t even know what it was… I don’t want to lose my virginity at such a young age! I hope I didn’t lose my virginity to him! Can someone please tell me?

Heather Corinna replies:

It’s up to you to decide if this was sex and if this had anything to do with virginity. What I can do to help you with that is give you some definitions, backgrounds and perspective on those terms, some advice on making sexual choices in alignment with what you really want and feel ready for and, hopefully, some comfort.

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Let’s start by defining sex, and in a way which includes most people’s varied experiences of sex. As we explain here:

Sex is any number of different things people freely choose to do to tangibly and actively express or enact their sexuality and their sexual feelings.

If “sex” was the answer, the questions would be things like “What am I doing to try and feel good sexually or to express feeling good sexually? What am I doing that feels sexual to me (or to me and a partner)? What am I doing that feels like a way to express my sexuality, or my sexual desires and/or feelings about myself or others?”

If you both did what you did to express your sexual feelings, then you had one of the many kinds of sex we can have. Some people, when they say “sex,” only mean vaginal intercourse. Usually those people either haven’t had intercourse to know it’s not that different from other kinds of sex, vaginal intercourse is the only kind of sex they people have or they have some kind of personal, political or religious agenda. Vaginal intercourse is just one kind of sex. Because not everyone does or likes all the same sexual activities, and very few people only express or want to express their sexuality through only one sexual activity and no others, we don’t just call one kind of sex sex and call everything else “not-sex.” What you two did is a kind of sex people often call grinding or “dry-humping.”

The only universal difference between the kind of sex you had and vaginal intercourse are the physical risks. What you did, so long as both of you did each have your underpants on and your genitals were fully covered, was not likely to present risks of pregnancy or sexually transmitted infections. Vaginal intercourse presents high risks of both. Otherwise, while people’s experiences and expectations vary with different activities, intercourse and grinding are similar: they’re both ways people may or do express and enact sexual feelings together, seek out sexual pleasure with and both involve genital stimulation.

Virginity is a bigger can of worms. If you want one clear, simple definition of virginity, the best I can do is to say that when someone says a person is a virgin they usually mean someone has not done something that they — the person saying who is and isn’t a virgin — consider to be sex or something they think is THE sexual experience that means a person has had sex.

I know that’s murky. The thing is, while sex is something those of us who work in sexuality and sexual health try to define as clearly as we can, virginity just isn’t a term we use, because it’s not a term that tends to be useful to us or the people we work with.

A healthcare provider can’t tell if someone is a virgin or not because it has nothing to do with anyone’s body. It usually has nothing to do with how a body looks or feels, how a body is or is not different because of sex. While some people in some areas will say they can do an exam to tell who is and who isn’t a virgin, that’s just not true: no one can give anyone any kind of official stamp of virginity by examining their bodies unless a person had a sexually transmitted infection, pregnancy or a genital injury. But since all three of those things can happen through things other than sex, even then it’s iffy. The term virginity is cultural, and often religious, not medical or anatomical. It’s something people outside of sexual health and the study of sexuality have come up with and self-define.

When people say virginity, they can mean many, many different things. Some people mean any kind of intercourse (where someone’s penis is going inside someone else’s vagina or anus). Some people — usually heterosexual people — mean just vaginal intercourse. Some only use the term virginity when talking about women, while other people apply it to all people. Some consider virginity is “lost” when people have a first sexual relationship or sexual experience of any kind with someone else. Some count each different sexual activity as a different virginity: for instance, figuring they lost their oral sex virginity, but not their anal sex virginity. Some count rape or other sexual abuse as having something to do with virginity, while others only count consensual sex. Some count masturbation in their definition of virginity; others do not. Some people don’t use virginity as a term or concept at all, either because most ideas about it don’t usually include them, because it’s just not the way they think about or have experienced sexuality or because they don’t like much of what usually goes along with that word.

As a person with a sex life, a queer person, a sexual abuse survivor and as someone who works in sexuality with a very diverse array of people of all ages, I’m one of those folks who has always felt like all three of those things were big problems, and like it’s just not a useful term for me or in my work, so I avoid it whenever possible. I remember being asked in junior high and high school if I was a virgin and never knowing the right answer. Did my rape make me not a virgin? If so, why? It wasn’t sex for me or anything I wanted or decided. Did what I did sexually with girls count, or only with boys? If only sex with boys counted, why? Did girls not count as people or was sex with girls that felt very real to us somehow not real? Even though my first intercourse was fine, it was less of a big whoop for me than my first kiss, the first time someone gave me oral sex or the first time I had an orgasm with a partner, so why was I supposed to consider something THE big deal that wasn’t my big deal?

I won’t beat around the bush: I really dislike the concept of virginity. I dislike it because of the ways it’s most commonly defined, because it has an ugly history that’s primarily about oppression and social control of women, and because it more often seems to result in people feeling scared and crummy about themselves and their choices rather than feeling empowered and good about themselves and their choices.

I don’t want to give you an unsolicited history lesson, but I do want people to know virginity, as a concept, has a seriously nasty history, just like I’d want people to know the n-word has a similarly nasty history. People have been (and still are) stoned to death, forced to have physical exams against their will, kicked out of their homes, put into marriages with knowingly abusive people, socially shunned or otherwise abused or mistreated all because they weren’t or aren’t “virgins,” or even just because someone thought or said they might not be. Through history, when marriage has meant giving a woman’s family money or goods to “pay” for her as a bride, being a virgin meant a woman cost more, and not being one meant she cost less. Often, concepts of virginity have had nothing to do with love, and everything to do with treating people — and again, usually women — as property and judging our value as people based on our sexual history, including things we didn’t even choose to take part in.

I don’t like the language that comes with virginity, either. Sex we have with people which we want and choose to have isn’t about anything we lose or take from someone else. It’s about what we express, create and share together. Shared, wanted sex with someone isn’t a loss or a robbery: we find and discover things in sex, rather than losing anything.

It does something else that’s less yucky, but still problematic. The ways most people define it usually decides what is and isn’t a big deal to someone before something even happens, instead of allowing for us to decide for ourselves what’s important based on what our experiences actually are when they are happening or have happened.

I do think our sexuality, sex lives and sexual experiences are important. Some of our sexual experiences do often wind up being milestones in our sexuality, our partnerships and/or our lives. But I know that what any of us finds to be a big deal for ourselves varies widely, and cultural expectations or prescriptions of what’s major are often not in alignment with actual, individual experiences. I think the diversity and uniqueness of our sexuality, lives and loves is totally awesome, so I resent anyone suggesting that what was most important to them — or, more commonly, what wasn’t, but what they think should have been or wish had been — must be what is most important for everyone.

If we believe something must be THE thing that’s more important than anything else, it really discounts our experiences. Not only can we find ourselves hella disappointed when that thing isn’t the big deal we believed it would be, we can miss out on finding out and honoring what is and was uniquely important to us. The concept of virginity says the first time we do something must always be the most important. I don’t know about you, but I know for myself that the first time I do anything I have never done before is almost never my best or most important experience with it. More often, my best or most important experience with something happens long after the first time. As well, even when I think something was the most important time, later on down the road I often find myself saying, “No, now THIS was the best,” and knowing that later on, I’ll probably say it again about a new experience. Just like with the rest of life, the same thing tends to happen with sex. Saying the first time we do anything is automatically the most important time says the 5th time, the 38th time, or the 200th time is always less important, even if at those times, we have experiences which are far more amazing and which feel more like milestones than the first.

Plus, if it was true that the first time we had any kind of sex was the most important, why would we ever bother doing it again?

For all of those reasons and a whole lot more, most days I wish virginity as a concept and ideal would just go away, or be replaced by something without the negativity, discrimination and half-arsed thought usually attached to that word and idea.

What I do not have a problem with is folks having whatever terms for sexual experiences or ideals that make them feel good and don’t diss, dismiss, control or oppress other people and their experiences. If your concept of virginity makes you feel good, and it isn’t crummy to others, I’m pretty much down. And if you do choose to use virginity as a term in your sexual lexicon, you get to follow the same rules everyone else does.

What rules, you ask? No rules at all, since everyone uses and has always used the term the way they want. If you want to use it, you get to define it however you want, just like everyone else through history. And hopefully, if you do choose to use it, you’ll choose a positive definition that makes you and anyone else you share it with feel good about yourselves, your lives and your choices.

If you want to “count” this experience as having something to do with virginity you can. If you do not want to count it as something to do with your virginity, you get to do that, too. The same goes with sex: what sex is or isn’t for any of us varies because we’re all so different and so are all of our sexual experiences. We don’t all have the same bodies, identities, sexualities, sexual opportunities or the same sexual relationships. So long as the way you define sex feels true to you and your experiences in the moment, then that’s your right definition. I say in the moment, because it’s very likely you, like many people, will adapt that definition over time as you have different experiences and grow as a person.

I would urge you to be honest in how you define those words for yourself and to other people. A lot of people really aren’t, which is a big part of why those words can be such big problems. If any of us use those terms and define them in ways that give people an idea about us or others we know is false or misleading, we can do other people harm, sometimes very directly. For example, we’ll often hear from users here who have had unprotected anal intercourse, but who tell new partners they haven’t had sex and are virgins: doing that means those new partners often make choices thinking they don’t have certain risks in sex with that person they may or do have.

There are situations and times where being honest about our sexual experiences or sexualities can be very challenging, scary and even dangerous. If and when being honest means you have to also put your safety at a big risk, then I vote for being dishonest. But ideally, we all get to choose who we talk about our sex lives and history to, and who we make a part of that history. If and when we don’t feel like those people are safe, our best bet is not to talk to those people about our sexuality or be sexual with those people.

I want to cover a few more bases with you. Like I explained, the kind of sex you had is very low risk when it comes to pregnancy or STIs. But when people get to the point where almost all the clothes are off, and genitals are on top of genitals, they’re often moving towards sexual activities which present higher risks of one or both of those things. If the underpants come off and you did what you were doing, for instance, then some risks of pregnancy and sexually transmitted infections would exist.

To be sure you’re reducing risks of sexually transmitted infections and unwanted pregnancy, and that you’re only doing things you feel good about, I think it’d be wise to think about what you do and don’t want to do and do and don’t feel ready for. That page I linked you to earlier sex has a list of various sexual activities on it. You can take a look at those and consider what you feel like you’d feel comfortable doing now or soon and what you wouldn’t. You can also use this list to do that more comprehensively, and take a look at our sexual readiness checklist. It could be very helpful to share those links with your partner so that he can consider the same things and so you two can have some talks about all of this where you have the same information to work with.

It sounds like you may not feel ready for all of this, which doesn’t surprise me. While the age people feel ready to start sexual relationships at varies, a lot of people around your age either don’t feel ready for all sex entails and requires — physically, emotionally, interpersonally and when it comes to actual stuff we need to be healthy and responsible — or not for the kinds of sex which present the highest risks of unwanted outcomes, like STIs, unwanted pregnancy or a lot of emotional vulnerability.

If you are going to move forward with any kind of sex with someone else, talk honestly with your partner about what you do and don’t want to do and about your limits and your boundaries; talk about safer sex and birth control, especially if you think anyone’s underpants may be coming off in the near future. Ask your partner where he’s at with all of those things. Listen to what he has to say and make some decisions together based on what both of you want, feel good about and feel able to manage. The more we talk, the more likely we tend to be to make our own best choices, and to be supported by partners in those choices.

It’s also helpful to have a support person to talk with about sex who is not a sexual partner or potential partner. While that’s helpful at all ages, it can be especially helpful when we’re young and don’t have the kinds of rights, resources, confidence, experience, perspective and skills we will have or are more likely to have later in life. Before we have those things or have more of them, we can borrow from people who do.

Can you identify at least one adult who you can be honest with about sex (even if it’s a little intimidating at first), who you know cares about you, who is supportive of you and is a safe person for you? That person might be a parent or guardian, but could also be the parent or guardian of a friend, a school nurse or other healthcare provider, an extended family member or older sibling, a teacher, coach or other mentor: someone you know you can count on for sound advice, perspective and support. When you identify that person, I suggest you ask them the same questions you’ve asked me and talk about your feelings with them. I’d hate to be the only person you ask about this, especially since we can’t sit down face-to-face, I don’t know you as well as someone like that can, and you don’t have the kind of access to me you can to someone in person. If you feel like you know absolutely no one like that, you can drop us an email and we can probably help you find a resource in your community where you can get that kind of support.

One last thing: a lot of people present sex as some kind of Pandora’s Box that once someone opens, cannot be closed. That’s not a sound way of presenting sex, and is also not reflective of people’s sex lives in reality. If and when we do something sexual, we should always have the choice to do it again or not, and if we want to do it again, have the choice about when, with whom and in what set of conditions. If you ever feel like sex is happening faster than you can handle, you get to slow things down or put any kind of sex on hold until it feels right to you, before, during and after. If you need some time to think things through, you get to take that time, however long it may be: everyone does. Hopefully, you have a partner who knows, respects and wants that for both of you, but in the case that you don’t, know that a safe partner, a good partner, will always support that, and you also get to only choose to be sexual with safe people who respect your needs and your limits.

If you do feel good about this, and want to keep doing this kind of sex or engage in other kinds of sex, you get to feel good about it, whether you or others count it as sex or as something to do with your virginity. I hope you can figure out a way to think about all of this and make sexual choices from a place where you feel emotionally and physically good about yourself, and hope you can let your own feelings and understanding of yourself and what you want and can deal with, uniquely, take the lead in that decision-making, not general terms or ideas which are a whole lot less meaningful and valuable.

Analysis Economic Justice

New Pennsylvania Bill Is Just One Step Toward Helping Survivors of Economic Abuse

Annamarya Scaccia

The legislation would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have "a reasonable fear" that they will continue to be harmed while living in their unit.

Domestic violence survivors often face a number of barriers that prevent them from leaving abusive situations. But a new bill awaiting action in the Pennsylvania legislature would let survivors in the state break their rental lease without financial repercussions—potentially allowing them to avoid penalties to their credit and rental history that could make getting back on their feet more challenging. Still, the bill is just one of several policy improvements necessary to help survivors escape abusive situations.

Right now in Pennsylvania, landlords can take action against survivors who break their lease as a means of escape. That could mean a lien against the survivor or an eviction on their credit report. The legislation, HB 1051, introduced by Rep. Madeleine Dean (D-Montgomery County), would allow victims of domestic violence, sexual assault, and stalking to terminate their lease early or request locks be changed if they have “a reasonable fear” that they will continue to be harmed while living in their unit. The bipartisan bill, which would amend the state’s Landlord and Tenant Act, requires survivors to give at least 30 days’ notice of their intent to be released from the lease.

Research shows survivors often return to or delay leaving abusive relationships because they either can’t afford to live independently or have little to no access to financial resources. In fact, a significant portion of homeless women have cited domestic violence as the leading cause of homelessness.

“As a society, we get mad at survivors when they don’t leave,” Kim Pentico, economic justice program director of the National Network to End Domestic Violence (NNEDV), told Rewire. “You know what, her name’s on this lease … That’s going to impact her ability to get and stay safe elsewhere.”

“This is one less thing that’s going to follow her in a negative way,” she added.

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Pennsylvania landlords have raised concerns about the law over liability and rights of other tenants, said Ellen Kramer, deputy director of program services at the Pennsylvania Coalition Against Domestic Violence, which submitted a letter in support of the bill to the state House of Representatives. Lawmakers have considered amendments to the bill—like requiring “proof of abuse” from the courts or a victim’s advocate—that would heed landlord demands while still attempting to protect survivors.

But when you ask a survivor to go to the police or hospital to obtain proof of abuse, “it may put her in a more dangerous position,” Kramer told Rewire, noting that concessions that benefit landlords shift the bill from being victim-centered.

“It’s a delicate balancing act,” she said.

The Urban Affairs Committee voted HB 1051 out of committee on May 17. The legislation was laid on the table on June 23, but has yet to come up for a floor vote. Whether the bill will move forward is uncertain, but proponents say that they have support at the highest levels of government in Pennsylvania.

“We have a strong advocate in Governor Wolf,” Kramer told Rewire.

Financial Abuse in Its Many Forms

Economic violence is a significant characteristic of domestic violence, advocates say. An abuser will often control finances in the home, forcing their victim to hand over their paycheck and not allow them access to bank accounts, credit cards, and other pecuniary resources. Many abusers will also forbid their partner from going to school or having a job. If the victim does work or is a student, the abuser may then harass them on campus or at their place of employment until they withdraw or quit—if they’re not fired.

Abusers may also rack up debt, ruin their partner’s credit score, and cancel lines of credit and insurance policies in order to exact power and control over their victim. Most offenders will also take money or property away from their partner without permission.

“Financial abuse is so multifaceted,” Pentico told Rewire.

Pentico relayed the story of one survivor whose abuser smashed her cell phone because it would put her in financial dire straits. As Pentico told it, the abuser stole her mobile phone, which was under a two-year contract, and broke it knowing that the victim could not afford a new handset. The survivor was then left with a choice of paying for a bill on a phone she could no longer use or not paying the bill at all and being turned into collections, which would jeopardize her ability to rent her own apartment or switch to a new carrier. “Things she can’t do because he smashed her smartphone,” Pentico said.

“Now the general public [could] see that as, ‘It’s a phone, get over it,'” she told Rewire. “Smashing that phone in a two-year contract has such ripple effects on her financial world and on her ability to get and stay safe.”

In fact, members of the public who have not experienced domestic abuse may overlook financial abuse or minimize it. A 2009 national poll from the Allstate Foundation—the philanthropic arm of the Illinois-based insurance company—revealed that nearly 70 percent of Americans do not associate financial abuse with domestic violence, even though it’s an all-too-common tactic among abusers: Economic violence happens in 98 percent of abusive relationships, according to the NNEDV.

Why people fail to make this connection can be attributed, in part, to the lack of legal remedy for financial abuse, said Carol Tracy, executive director of the Women’s Law Project, a public interest law center in Pennsylvania. A survivor can press criminal charges or seek a civil protection order when there’s physical abuse, but the country’s legal justice system has no equivalent for economic or emotional violence, whether the victim is married to their abuser or not, she said.

Some advocates, in lieu of recourse through the courts, have teamed up with foundations to give survivors individual tools to use in economically abusive situations. In 2005, the NNEDV partnered with the Allstate Foundation to develop a curriculum that would teach survivors about financial abuse and financial safety. Through the program, survivors are taught about financial safety planning including individual development accounts, IRA, microlending credit repair, and credit building services.

State coalitions can receive grant funding to develop or improve economic justice programs for survivors, as well as conduct economic empowerment and curriculum trainings with local domestic violence groups. In 2013—the most recent year for which data is available—the foundation awarded $1 million to state domestic violence coalitions in grants that ranged from $50,000 to $100,000 to help support their economic justice work.

So far, according to Pentico, the curriculum has performed “really great” among domestic violence coalitions and its clients. Survivors say they are better informed about economic justice and feel more empowered about their own skills and abilities, which has allowed them to make sounder financial decisions.

This, in turn, has allowed them to escape abuse and stay safe, she said.

“We for a long time chose to see money and finances as sort of this frivolous piece of the safety puzzle,” Pentico told Rewire. “It really is, for many, the piece of the puzzle.”

Public Policy as a Means of Economic Justice

Still, advocates say that public policy, particularly disparate workplace conditions, plays an enormous role in furthering financial abuse. The populations who are more likely to be victims of domestic violence—women, especially trans women and those of color—are also the groups more likely to be underemployed or unemployed. A 2015 LGBT Health & Human Services Network survey, for example, found that 28 percent of working-age transgender women were unemployed and out of school.

“That’s where [economic abuse] gets complicated,” Tracy told Rewire. “Some of it is the fault of the abuser, and some of it is the public policy failures that just don’t value women’s participation in the workforce.”

Victims working low-wage jobs often cannot save enough to leave an abusive situation, advocates say. What they do make goes toward paying bills, basic living needs, and their share of housing expenses—plus child-care costs if they have kids. In the end, they’re not left with much to live on—that is, if their abuser hasn’t taken away access to their own earnings.

“The ability to plan your future, the ability to get away from [abuse], that takes financial resources,” Tracy told Rewire. “It’s just so much harder when you don’t have them and when you’re frightened, and you’re frightened for yourself and your kids.”

Public labor policy can also inhibit a survivor’s ability to escape. This year, five states, Washington, D.C., and 24 jurisdictions will have passed or enacted paid sick leave legislation, according to A Better Balance, a family and work legal center in New York City. As of April, only one of those states—California—also passed a state paid family leave insurance law, which guarantees employees receive pay while on leave due to pregnancy, disability, or serious health issues. (New Jersey, Rhode Island, Washington, and New York have passed similar laws.) Without access to paid leave, Tracy said, survivors often cannot “exercise one’s rights” to file a civil protection order, attend court hearings, or access housing services or any other resource needed to escape violence.

Furthermore, only a handful of state laws protect workers from discrimination based on sex, sexual orientation, gender identity, and pregnancy or familial status (North Carolina, on the other hand, recently passed a draconian state law that permits wide-sweeping bias in public and the workplace). There is no specific federal law that protects LGBTQ workers, but the U.S. Employment Opportunity Commission has clarified that the Civil Rights Act of 1964 does prohibit discrimination based on gender identity and sexual orientation.

Still, that doesn’t necessarily translate into practice. For example, the National Center for Transgender Equality found that 26 percent of transgender people were let go or fired because of anti-trans bias, while 50 percent of transgender workers reported on-the-job harassment. Research shows transgender people are at a higher risk of being fired because of their trans identity, which would make it harder for them to leave an abusive relationship.

“When issues like that intersect with domestic violence, it’s devastating,” Tracy told Rewire. “Frequently it makes it harder, if not impossible, for [victims] to leave battering situations.”

For many survivors, their freedom from abuse also depends on access to public benefits. Programs like Temporary Assistance for Needy Families (TANF), Supplemental Nutrition Assistance Program (SNAP), the child and dependent care credit, and earned income tax credit give low-income survivors access to the money and resources needed to be on stable economic ground. One example: According to the Center on Budget and Policy Priorities, where a family of three has one full-time nonsalary worker earning $10 an hour, SNAP can increase their take-home income by up to 20 percent.

These programs are “hugely important” in helping lift survivors and their families out of poverty and offset the financial inequality they face, Pentico said.

“When we can put cash in their pocket, then they may have the ability to then put a deposit someplace or to buy a bus ticket to get to family,” she told Rewire.

But these programs are under constant attack by conservative lawmakers. In March, the House Republicans approved a 2017 budget plan that would all but gut SNAP by more than $150 million over the next ten years. (Steep cuts already imposed on the food assistance program have led to as many as one million unemployed adults losing their benefits over the course of this year.) The House GOP budget would also strip nearly $500 billion from other social safety net programs including TANF, child-care assistance, and the earned income tax credit.

By slashing spending and imposing severe restrictions on public benefits, politicians are guaranteeing domestic violence survivors will remain stuck in a cycle of poverty, advocates say. They will stay tethered to their abuser because they will be unable to have enough money to live independently.

“When women leave in the middle of the night with the clothes on their back, kids tucked under their arms, come into shelter, and have no access to finances or resources, I can almost guarantee you she’s going to return,” Pentico told Rewire. “She has to return because she can’t afford not to.”

By contrast, advocates say that improving a survivor’s economic security largely depends on a state’s willingness to remedy what they see as public policy failures. Raising the minimum wage, mandating equal pay, enacting paid leave laws, and prohibiting employment discrimination—laws that benefit the entire working class—will make it much less likely that a survivor will have to choose between homelessness and abuse.

States can also pass proactive policies like the bill proposed in Pennsylvania, to make it easier for survivors to leave abusive situations in the first place. Last year, California enacted a law that similarly allows abuse survivors to terminate their lease without getting a restraining order or filing a police report permanent. Virginia also put in place an early lease-termination law for domestic violence survivors in 2013.

A “more equitable distribution of wealth is what we need, what we’re talking about,” Tracy told Rewire.

As Pentico put it, “When we can give [a survivor] access to finances that help her get and stay safe for longer, her ability to protect herself and her children significantly increases.”

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.