Teen girls are facing discimination in athletics, a transgender inmate vows to continue lawsuit against the state, the Massachusetts House sees a growing number of anti-choice lawmakers and more in today's afternoon round-up!
Today’s afternoon news on reproductive justice related issues being discussed around the web:
The National Women’s Law Center has filed 12 complaints with the Department of Education against 12 school districts where, they contend, high school girls are not given equal opportunity to play sports. Learn more about the campaign, Rally for Girls’ Sports: She’ll Win More Than A Game.
It looks like Massachusetts has lost some pro-choice lawmakers to those who oppose reproductive rights access, in the state’s House of Representatives. There is still a “slim” pro-choice majority in the chamber.
A transgender inmate in a Wisconsin state prison, formerly known as Scott Konitzer and now known as Donna Dawn, says she was forced to settle a lawsuit she brought to compel the state to pay for her sex change operation. As part of the agreement she would have needed to continue to be housed in the male prison but would have been provided with a private shower and toilet, would be forgiven $5000 in debt and would provide medication to fight baldness. Not unsurprisingly, she doesn’t want to settle on these terms.
In their post-election report released today, the Ballot Initiative Strategy Center says the right-wing “failed” to use anti-reproductive justice ballot measures as wedge issues in states with key candidate races.
Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.
Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”
A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.
There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.
The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.
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The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”
It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:
She would try to change the sexual orientation of gay clients;
If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”
Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.
Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.
Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.
Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.
The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”
Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.
As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.
Ward v. Polite
The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.
Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.
Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”
All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.
On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.
And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”
Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.
In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”
But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.
Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)
Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.
Cash v. Hofherr
The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.
The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.
But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.
All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.
In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.
Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”
That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.
But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.
Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.
More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.
* * *
The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attemptsto challengebans on “reparative therapy.”
The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.
In his quest to secure conservative votes, Sen. Ted Cruz (R) has embraced extremists across the country, many of whom have well-documented histories of anti-choice, anti-LGBTQ, and racist rhetoric. As more moderate Republicans flock to Cruz in a push to block Donald Trump from winning their party’s nomination, Cruz’s support of these extremists sheds light on his future policy making, should he be elected president.
Though hardly an exhaustive list of the radicals with whom Cruz has aligned, here are some of the most reactionary characters in his playbook.
Cruz and activist Troy Newman, head of theradical anti-choice group Operation Rescue, have spent months on the campaign trail praising each other’s extreme stances on abortion.
Operation Rescue moved to Wichita, Kansas, in 2002 to continue its campaign to intimidate abortion provider Dr. George Tiller, whom it had nicknamed “Tiller the Killer.” Before Newman came on as president, the group had previously targeted Tiller as part of its 1991 “Summer of Mercy,” when it led protesters to physically block and verbally intimidate those entering abortion clinics in Wichita, holding signs that, among other things, read “Tiller’s Slaughter House.”
Although Newman issued a statement on behalf of Operation Rescue condemning Scott Roeder when he murdered Tiller in 2009, a 2010 Ms. investigation reported that, according to Roeder, Newman had once told him that “it wouldn’t upset” him if an abortion provider was killed. (Newman denied meeting Roeder.) Roeder also had the phone number of Operation Rescue’s Cheryl Sullenger on a note on the dashboard of his car when he murdered Tiller. Sullenger, the senior vice president of the group, had been sentenced to prison time in 1988 for attempting to bomb an abortion clinic.
Newman co-founded anti-choice front group Center for Medical Progress (CMP) in 2013, whose widely discredited videos alleged that Planned Parenthood was illegally profiting from fetal tissue donations. Multiple ensuinginvestigations at both the state and federal level produced no evidence of wrongdoing, and one of the group’s other founders, David Daleiden, was later indicted in connection to the videos. Newman later separated from the group.
Despite the extremism of Newman’s groups, Cruz lauded the anti-choice activist upon receiving his endorsement in November, saying in a statement, “We need leaders like Troy Newman in this country who will stand up for those who do not have a voice.”
Cruz announced in late January that Newman would co-chair his coalition of anti-choice advisers, “Pro-Lifers for Cruz,” listing Newman’s book co-authored with Sullenger, Their Blood Cries Out, among his accomplishments. As Right Wing Watch noted, however, the text argues women who have abortions should be treated like murderers, and that abortion doctors should be executed. The book, now out of print, read: “[T]he United States government has abrogated its responsibility to properly deal with the blood-guilty. This responsibility rightly involves executing convicted murderers, including abortionists, for their crimes in order to expunge bloodguilt [sic] from the land and people,” according toMother Jones.
Troy Newman isn’t the only radical in “Pro-Lifers for Cruz”—the group’s chair, Tony Perkins, is an anti-LGBTQ activist with a history of aiding extremist anti-choice groups.
Since 2003, Perkins has led the Family Research Council (FRC), classified by the Southern Poverty Law Center (SPLC) as a “hate group” for its anti-LGBTQ record.
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Recounting Perkins’ biography, the SPLC noted that although he claimed to have left a police force position over a disagreement about containing an anti-choice protest, “the reality is quite different.” The SPLC pointed to a report from the Nation finding that Perkins “failed to report an illegal conspiracy by anti-abortion activists” Operation Rescue during the group’s 1992 “Summer of Purpose,” while he worked dual roles as a reserve police officer in Baton Rouge and reporting for a conservative television station:
According to Victor Sachse, a classical record shop owner in the city who volunteered as a patient escort for the clinic, Perkins’ reporting was so consistently slanted and inflammatory that the clinic demanded his removal from its grounds.
In order to control an increasingly tense situation, the police chief had a chain-link fence erected to separate anti-abortion activists from pro-choice protesters, and he called in sheriff’s deputies and prison guards as extra forces. Perkins publicly criticized the department and the chief. Then, after learning about plans for violent tactics by anti-abortion activists to break through police lines and send waves of protesters onto the clinic’s grounds, he failed to inform his superiors on the force. As a result of his actions, Perkins was suspended from duty in 1992, and he subsequently quit the reserve force.
Cruz’s list of national security advisers, meanwhile, includes Frank Gaffney Jr. Even in the face of criticism, Cruz has defended his pick, telling CNN’s Wolf Blitzer that “Frank Gaffney is a serious thinker who has been focused on fighting jihadists, fighting jihadism across the globe.”
Gaffney, a former Reagan administration official, is the founder and president of the Center for Security Policy (CSP). In this year’s Intelligence Report, which documents extremist groups, the SPLC categorized CSP as an anti-Muslim hate group.
The CSP’s primary focus in recent years “has been on demonizing Islam and Muslims under the guise of national security” by promoting conspiracy theories, according to SPLC. The Center for American Progress’ 2011 report, The Roots of the Islamophobia Network in America,featured Gaffney as a key player in promoting anti-Muslim rhetoric in the United States, writing that he often “makes unsubstantiated claims about ‘stealth jihad,’ the ‘imposition of Sharia law,’ and the proliferation of ‘radical mosques.'”
Cruz announced in early April that his Colorado Leadership Team included state Rep. Gordon Klingenschmitt (R-Colorado Springs), asserting he was “honored” to have the support of the politician and 24 other conservatives from the the state.
The previous week, Klingenschmitt had made headlines for claiming transgender people are “confused about their own identity” during an appearance on Comedy Central’s The Daily Show.
Klingenschmitt had been previously stripped of his position on the Colorado House of Representatives’ House Health, Insurance and Environment Committee in early 2015 after claiming on his television program that a violent attack on a pregnant woman in the state was the result of “the curse of God upon America for our sin of not protecting innocent children in the womb.”
“Part of that curse for our rebellion against God as a nation is that our pregnant women are ripped open,” claimed Klingenschmitt at the time before going on to pray for an “end to the holocaust which is abortion in America.”
In the wake of the deadly shootings at a Colorado Springs Planned Parenthood in November 2015, Klingenschmitt claimed that “Planned Parenthood executives” have the “same demonic spirit of murder” as the alleged killer, Robert Lewis Dear Jr.
Earlier in 2015, the Colorado state representativesaid that Planned Parenthood executives have “demons inside of them, you can see the blood dripping from their fangs. These people are just evil.” That June, he criticized Wisconsin Gov. Scott Walker (R) for signing a measure forcing those seeking abortions to receive medically unnecessary forced ultrasounds, claiming that the law didn’t go far in enough because it didn’t ban abortion entirely
. James Dobson
Dobson’s FoF has spent millions promoting its anti-choice and anti-LGBTQ extremism, even dropping an estimated $2.5 million in 2010 to fund an anti-choice Super Bowl ad featuring conservative football player Tim Tebow. Dobson also founded the aforementioned Family Research Council, now headed by Tony Perkins.
Dobson’s own personalrhetoric is just as extreme as the causes his organization pushes. As extensively documented by Right Wing Watch,
Conservative radio host Steve Deace, a member of the Cruz campaign’s Iowa leadership team, is “virulently anti-LGBT, having repeatedly attacked supporters of LGBT equality as being part of a ‘Rainbow Jihad,'” according to media watchdog organization Media Matters for America.
In October Cruz announced he was “thrilled” to receive the endorsement of Sandy Rios, a conservative radio host and official at the American Family Association-yet another organization classified by the SPLC as a hate group. Rios gained notoriety during the 2015 Amtrak crash in Philadelphiaafter claiming the conductor’s sexuality may have played a role in the accident.
Cruz and several other Republican presidential candidates spoke alongside far-right, anti-LGBTQ pastor and Christian radio host Kevin Swanson in November at the National Religious Liberties Conference. Swanson is featured in GLAAD’s Commentator Accountability Project, which highlights figures who “represent extreme animus towards the entire LGBT community.”
A&E’s Duck Dynasty star Phil Robertson has been a fierce Cruz supporter, and in February the presidential candidate pitched the idea of making him an ambassador to the United Nations should he be elected. Just weeks earlier, Robertson had called same-sex marriage “evil” during a Cruz rally. This statement came as little surprise given the reality television star’s previous comments condemning homosexuality and linking it to bestiality.
Cruz was also “thrilled” in March to win an endorsement from “Ohio’s top conservative leaders”—a list that included activist Linda Harvey, who once wrote that LGBTQ youth may be possessed by “demonic spirits.”