Commentary Sexuality

Three on Virginity, Ideals and Regrets

Heather Corinna

How can you become a virgin again?  Can you become a virgin again? Why keep using that term at all, and keep trying to make sense out of a freamework we know often just isn't sensible?

Published in partnership with Scarleteen

reynolds1990 asks:

I know that it takes a woman up to 7 years, after having intercourse to become a virgin again. Is that true? Is it also the same for a girl between the ages of 12 and 15? If they are both true, could you please explain to me how that happens? If you could get back to me as soon as possible that would be fully appreciated.

Heather Corinna replies:

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We talk about this a lot here at Scarleteen: virginity isn’t physical or anything that can be universally proven or disproven with body parts.

It’s an intellectual concept, an idea, a belief, and perhaps most accurately, a word for identity some people use, usually to identify when they or others have or have not had certain sexual experiences. What those experiences are vary, because not everyone has or uses the same definition. All people also don’t share the same experiences or definitions of sex, or certain physical activities which are sometimes sex, but aren’t other times, especially because any activity which can be sex can also be rape or other kinds of abuse. Too, a definition of virginity or partnered sex based in something physical, being done to or with the body without accounting for everyone’s motives and feelings could not only be sex or rape, it could also be describing things that can be part of in sexual healthcare, bathing, grooming, itching (literally, not figuratively), childbirth, various kinds of injuries, curiosity, or masturbation.

For a very long time, there was a fairly global belief that virginity was physical, and something only applied to women’s bodies and women’s social status. The belief was that virginity was effectively about the hymen — or corona, a very thin, flexible membrane that is usually just inside the vaginal opening at birth — not being fully intact or visible, and that what happened when virginity was “lost” or “taken” was that the hymen was broken. What that belief overlooked, in large part because people didn’t know better, was that that tissue not only is not some kind of seal, it’s supposed to degrade over time — both wearing away and back, winding up with its edges surrounding the vaginal opening in some way — and will usually tend to do that with or without any kind of sex at all. (If in doubt, consider how many young women you probably know who have not had any kind of sex, but have their periods, which couldn’t flow out if the vaginal opening was sealed shut.) It also overlooked that when intercourse was and is something the person with said hymen desired, felt ready for and gave consent to, and when they had a partner who was attentive, hymens don’t tend to “get broken” at all, but instead, just wear away a little more sometimes with genital sex.

In some areas and some places people still believe the things above that we know now are not true, or don’t believe them, but choose to behave as if they still are true. But they’re not, and acting as if they are won’t make it so.

I suspect what you’re asking is if the hymen can grow back once it has worn away, in whole or in part. It can’t. As I explained, it’s supposed to wear away, and once it has, in whatever way it has at whatever pace it has, it’s not going to magically grow back. You might also be asking if there’s a certain time period where if someone doesn’t have given kind of sex if it physically might feel like their first time again, per feeling very tight or painful. Maybe, but maybe not: not everyone’s first times are painful or uncomfortable, especially when sex is wanted and something people are ready for. If after going a while without a certain kind of sex, it feels painful, that’s most likely about someone doing things in such a way that make them painful or unpleasant — like being scared, not using lubricant as needed, or rushing into intercourse — rather than because of any physical changes to their bodies.

While I suspect that may answer your question all by itself, I’d like to talk a bit more about this, and address a couple other recent questions we’ve had on this subject.

Anonymous asks:

Can I become a virgin again? I already had sex. It wasn’t terrible, I wasn’t forced into anything it was okay I guess. But my boyfriend and I broke up a while back and it wasn’t as perfect as we all want the first time to be. I want a do-over. Can I get one without pretending to be something I’m not or lying about having sex before?

Yes, you can! In fact, you can get as many do-overs as you want without pretending or lying.

I’ll be forthright about my personal feelings about virginity as a term: I don’t like it. That isn’t to say I have any issue with, or am not supportive of, people deciding to give whatever weight they do to their experiences and ideals. I also am completely supportive of anyone deciding, before, during or after, that any given sexual experience (or lack thereof), activity or scenario has a particular value to them. My issue is with the term itself, which has long been intensely sexist and associated with an awful lot of misogyny, sexual violence and other violence against women and other forms of oppression. In a word, I know too much, and what I know totally sucks.

While I think we can reclaim some words, potentially shifting them from an oppressive negative into a powerful positive, I’m not sure how we can do that with this one. The history around this term is just so awful, and our culture is still so sexist and uses the term for ways of oppressing people, not to mention that it’s so vague a term it’s all but meaningless in some ways. As well, what I notice is that people who use it usually subscribe to some of the ideas or ideals affixed to the history of the term, like suggesting sex is about taking something away from someone, rather than making something new, like presenting women’s bodies as property in some way, like affixing a social status to people based on their sexual experiences or lack of them, so I’d not call that reclaiming. I would suggest folks at least consider choosing to describe what you would with that word with different words, more positive words of phrases, language that is more clear and less mired in bad stuff.

That’s my own opinion. Your own, whatever it is, is no less important or valuable. If it’s a term you want to use, and which you feel works for you, then you get to use it. But for the sake of trying to use language that isn’t steeped in big yuck, and with the aim of giving more meaning and clarity to things you want to be meaningful and clear, I want to propose some alternatives.

For instance, instead of saying “I’m a virgin,” or “I’m not a virgin,” or “I wish I could be a virgin again,” how about:
“I haven’t participated in [whatever kind of] sex yet.”
“I haven’t had vaginal intercourse before.”
“I haven’t had sex with someone I love before.”
“I haven’t engaged in sex I felt satisfied with yet.”
“I haven’t experienced sex that felt like sex to me yet.”
“I was sexually assaulted or abused: I haven’t yet had consensual sex.”
“I’ve changed a lot since I did sex in the past, so I feel like I’m starting over with it.”
“I haven’t been part of sex with a partner of [whatever gender] yet.”
“I haven’t had sex when I identified as [whatever gender, orientation or other identity] yet.
“I haven’t been part of sex yet that I’ve actually enjoyed.”
“I did have sex already, but it just wasn’t what I wanted it. I want to have sex that’s the way I envision it at its best.”
“I haven’t experienced sex in this kind of relationship before.”
“I haven’t been involved in sex since I knew what I wanted or felt able to ask for it.”
“I haven’t had sex since I really felt ready for it.”
“I have had sex before, but I wasn’t happy with it, and I feel like I’d like to restart my sex life fresh, and aim to do that.”
“I didn’t realize what sex was before and that’s what I was doing, so I feel like now that I do is when I’m really having my first times.”
Or, what you said yourself: “I already had sex. It wasn’t terrible, I wasn’t forced into anything it was okay I guess. But my boyfriend and I broke up a while back and it wasn’t as perfect as we all want the first time to be. I want a do-over.”

All of those things are okay things to say, and they are things that people talking honestly and openly about sex and their sexual history do and may say. If you think you’d be the first person in the world saying them, you’d be wrong. It also may not be the first time any sexual partner you may have heard something like that, either, and you may even run into a partner who also feels one of those ways themselves.

That said, for someone who does want to use the word virginity and not an alternative, because virginity is not physical or factual, and because its definitions are myriad, arbitrary and often personal, I don’t see any reason why any given person isn’t entitled to their own definition, too.

That’s the precedent that’s long been set, after all: whole cultures have created their definitions for their own purposes or agendas, including definitions that were knowingly false, and a whole lot of people have too, often people who weren’t even identifying themselves, but prescribing identities, statuses or values to others. So, I figure you get to decide what it means just as arbitrarily as anyone else, especially since since no matter how you use it, there is still not going to be any unilateral definition where everyone you say it to will know what you mean or won’t just assume you define it however they do.

I think it’s important to be honest with sexual partners and to avoid any words or language that are dishonest or knowingly give false impressions. Saying or implying you haven’t had a kind of physical contact that you have can, for example, incline someone to choose to take potential health risks they wouldn’t choose to take otherwise, or to ditch safety measures they’d otherwise insist on. That’s not cool. Plus, we’re all generally most likely to have satisfying sex we feel good about when we are who we are, and represent ourselves honestly, including our life experiences. Do make sure that whatever words or phrases you choose to use, they’re honest and express what is true.

I want to talk about that perfect you think everyone wants the first time to be. Not only is everyone’s idea of perfect different, in reality, that “perfect” you have in mind probably doesn’t exist or, at the very least, is more likely to be a reality much further down the road than with a first time. You’re talking about an ideal, possibly even a fantasy. There’s nothing wrong with having those, but when we do, we have to acknowledge that’s what they are, and while our realities can sometimes resemble them, or wind up meeting the needs we have in them without being just like them, they’re still not realities, but ideals or fantasies. In reality, the first time people have any kind of sex is often a lot like the first time we do anything new: it’s really far from perfect because we haven’t had any practice at it yet and are just trying it for the first time.

I’d say that sex is one of those places and things in life where our imperfections get shown up a lot more than perfection does, and that isn’t a bad thing, but one of the best things about it. Sex can be a place where everyone can be human — sticky, sweaty, fleshy, awkward, clumsy, murky, newbie, dizzy, silly, super-quirky-human — and thus, necessarily imperfect, and enjoy and celebrate themselves; be accepted and accepting. It’s a place where we or anyone else should never have to be perfect or feel like we have to, which can be an awfully nice break from the situations in life in which we’re given a lot less freedom and latitude to be imperfect.

Ashley_Nicole asks:

I think I’m physically ready to have sex. But on the emotional side I’m fractioned…1/4 of me says no and the other 3/4’s says yes. I don’t want to have ANY regrets, what do I do?

There is also nothing we can do, in sex or any part of life, to assure we won’t have any regrets. Ever. If there was, and I knew about it, I promise I’d tell you. I just explained to someone else a couple of weeks ago that there is no perfect sexual choice, just like there’s no perfect any choice. All there ever is is the best choice we can make for yourselves with the information, insight and skills we have at a given time.

However, there are some things we can do to best avoid regret, and some things we can do to manage feelings of regret when and if we have them and use them to help us out.

One of the big things you’ve already identified is paying attention to your own feelings and instincts. That 25% of you that says it’s not right yet? Listen to that part. Give it weight and value, acknowledging it to be as deeply important as it is (which is deeply important). When sex really is right, the first time or the 501st, your heart and your head will tend to be in alignment. As much of yourself as can say go to something will be cheering for the same team. While our intuition and feelings aren’t all we need to make our own best choices, paying attention to them and not acting against them is crucial.

What else? Information. Do you feel like you’re pretty filled in on what to expect — for as much as we can be — with sex and what people tend to need to be really ready for all of it? Feel like you know what you need to to both make your choice and manage your choice? If not, you can look at something like this, or this, or this, or this to get some more information to inform your choices.

Since there’s more than just you involved in partnered sex, you can talk about your feelings and thoughts about this with the other person involved. That’s not required, and some people don’t or don’t always. But when we’re feeling uncertain, it’s a good call to talk it out with our potential partner. If this does have an emotional aspect for you — and really, all sex does for everyone to some degree, even the most casual of casual sex — then you probably want to talk about this together. Filling them in on what you think and feel, seeing how they react to what you say, and then finding out how they feel can give you information you wouldn’t otherwise have to help you (and them) make your own best choices.

Do you feel like you — and whoever the other person potentially involved is — have the skills you need to manage sex well at this time? Are you in a place in your life where sex will add the good stuff, rather than adding anxiety, stress, heartbreak or drama? Try and be as honest with yourself as you can about what you really feel able to handle right now, and if you think now’s not the right time and space to handle all that we may have to with sex, emotionally and practically — opt out until you feel more capable, and invest some time and energy in cultivating the skills you think you may need to build up more, like good communication and negotiation skills or assertiveness.

One other thing to know is just like with any other sound choice and agreement (in this case, you and someone else agreeing to have whatever kinds of sex you are in the ways you’re agreeing to have them), you should always feel you can opt out. That’s not anything exceptional: for sex to be healthy and consensual, everyone always should be able to opt out at any time, even if and when you’ve agreed and then you’re about to do whatever it is and find you suddenly feel like it just isn’t right. Having that be a constant given is a really important part of consent, which you can read up on here.

Once people have started going through puberty, most people are pretty much physically “ready” for sex per their bodies being able to function sexually. But since there are so many kinds of sex and many don’t require any one way of the body functioning, I’d say that “physical readiness” is the least important part of this that there is. If sex was only about our bodies, that’d be the only thing we’d need to consider. It’s so not.

I hope you can see from the questions above yours and my answers to them that obviously some folks do experience regret or wish they’d made choices differently. Now, some of what’s in that probably isn’t just about how people made their choices, but about the many people conceptualize sex, sexuality and sexual experiences. Some of those conceptualizations are problematic for various reasons. For instance, when we hear from people who regret their first sexual choices, so much of the time it’s because they’re thinking they only get that one first time with sex, when in fact, we get first-times all the time, whether that’s because we have a new partner or just because we’re trying or experiencing something in a different way than we did in the past. The truth is, our sexual choices are always important, not just once. Hopefully that doesn’t make you feel more stressed out, because that’s not what I intend: I just want to make clear that we are always making these choices and they are always important, so if any one time we feel like we got it wrong, we always have more chances to get it right. As well, we always need to recognize that getting something just perfecty-perfect right the first time out is as unrealistic with sex as it is with anything else. We get better at this, all of us — having kinds of sex and making sexual choices — with practice over time.

So, what if you find that even when you do all of what I’m suggesting here — trusting your heart and your head both, having lots of information that you use in your decision-making, talking with partners honestly — you make a choice you regret in some way? Well, first of all, if you do all that, you probably won’t. Most people who voice feeling regret with these choices didn’t do those things.

But in the case you did, then you’d cut yourself a break, acknowledge you did all you could do to make your best choice, and remind yourself that everyone makes mistakes or only learns certain things through error. None of us come into this life knowing all these is to know, or done with our learning at birth: we all learn as we go, and probably don’t ever know all we could know, so we’re bound to make mistakes or missteps now and then. If you ask me, if we are kind to and thoughtful with ourselves and others, if we do our best to be as self-aware as we can, and we make sure we’re never leaping into things we know we or others don’t want or just can’t handle, then whatever mistakes we make, they’re just not going to be that bad. We’ll live, seriously, and something we think is the most horrendous mistake at a given time in life tends to soften over time, and we’ll often realize was even of value to us because of what we learned through it.

I want to leave all of you a few more links to look at, with my best wishes, and my hope that all of you, whatever your choices in the past, present or future, feel empowered to seek out what you want and think of yourself and your sex life in ways that make you feel good about yourselves.

Analysis Law and Policy

Do Counselors-in-Training Have the Right to Discriminate Against LGBTQ People?

Greg Lipper

Doctors can't treat their patients with leeches; counselors can't impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Whether they’re bakers, florists, or government clerks, those claiming the right to discriminate against LGBTQ people have repeatedly sought to transform professional services into constitutionally protected religious speech. They have grabbed headlines for refusing, for example, to grant marriage licenses to same-sex couples or to make cakes for same-sex couples’ weddings-all in the name of “religious freedom.”

A bit more quietly, however, a handful of counseling students at public universities have challenged their schools’ nondiscrimination and treatment requirements governing clinical placements. In some cases, they have sought a constitutional right to withhold treatment from LGBTQ clients; in others, they have argued for the right to directly impose their religious and anti-gay views on their clients.

There has been some state legislative maneuvering on this front: Tennessee, for instance, recently enacted a thinly veiled anti-LGBTQ measure that would allow counselors to deny service on account of their “sincerely held principles.” But when it comes to the federal Constitution, providing medical treatment—whether bypass surgery, root canal, or mental-health counseling—isn’t advocacy (religious or otherwise) protected by the First Amendment. Counselors are medical professionals; they are hired to help their clients, no matter their race, religion, or sexual orientation, and no matter the counselors’ beliefs. The government, moreover, may lawfully prevent counselors from harming their clients, and universities in particular have an interest, recognized by the U.S. Supreme Court, in preventing discrimination in school activities and in training their students to work with diverse populations.

The plaintiffs in these cases have nonetheless argued that their schools are unfairly and unconstitutionally targeting them for their religious beliefs. But these students are not being targeted, any more than are business owners who must comply with civil rights laws. Instead, their universities, informed by the rules of the American Counseling Association (ACA)—the leading organization of American professional counselors—merely ask that all students learn to treat diverse populations and to do so in accordance with the standard of care. These plaintiffs, as a result, have yet to win a constitutional right to discriminate against or impose anti-LGBTQ views on actual or prospective clients. But cases persist, and the possibility of conflicting court decisions looms.

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Keeton v. Anderson-Wiley

The first major challenge to university counseling requirements came from Jennifer Keeton, who hoped to receive a master’s degree in school counseling from Augusta State University. As detailed in the 2011 11th Circuit Court of Appeals decision considering her case, Keeton entered her professional training believing that (1) “sexual behavior is the result of personal choice for which individuals are accountable, not inevitable deterministic forces”; (2) “gender is fixed and binary (i.e., male or female), not a social construct or personal choice subject to individual change”; and “homosexuality is a ‘lifestyle,’ not a ‘state of being.'”

It wasn’t those views alone, however, that sunk her educational plans. The problem, rather, was that Keeton wanted to impose her views on her patients. Keeton had told both her classmates and professors about her clinical approach at a university-run clinic, and it wasn’t pretty:

  • She would try to change the sexual orientation of gay clients;
  • If she were counseling a sophomore student in crisis questioning his sexual orientation, she would respond by telling the student that it was not OK to be gay.
  • If a client disclosed that he was gay, she would tell him that his behavior was wrong and try to change it; if she were unsuccessful, she would refer the client to someone who practices “conversion therapy.”

Unsurprisingly, Keeton also told school officials that it would be difficult for her to work with LGBTQ clients.

Keeton’s approach to counseling not only would have flouted the university’s curricular guidelines, but also would have violated the ACA’s Code of Ethics.

Her conduct would have harmed her patients as well. As a school counselor, Keeton would inevitably have to counsel LGBTQ clients: 57 percent of LGBTQ students have sought help from a school professional and 42 percent have sought help from a school counselor. Suicide is the leading cause of death for LGBTQ adolescents; that’s twice or three times the suicide rate afflicting their heterosexual counterparts. And Keeton’s preferred approach to counseling LGBTQ students would harm them: LGBTQ students rejected by trusted authority figures are even more likely to attempt suicide, and anti-gay “conversion therapy” at best doesn’t work and at worst harms patients too.

Seeking to protect the university’s clinical patients and train her to be a licensed mental health professional, university officials asked Keeton to complete a remediation plan before she counseled students in her required clinical practicum. She refused; the university expelled her. In response, the Christian legal group Alliance Defending Freedom sued on her behalf, claiming that the university violated her First Amendment rights to freedom of speech and the free exercise of religion.

The courts disagreed. The trial court ruled against Keeton, and a panel of the U.S. Court of Appeals for the 11th Circuit unanimously upheld the trial court’s ruling. The 11th Circuit explained that Keeton was expelled not because of her religious beliefs, but rather because of her “own statements that she intended to impose her personal religious beliefs on clients and refer clients to conversion therapy, and her own admissions that it would be difficult for her to work with the GLBTQ population and separate her own views from those of the client.” It was Keeton, not the university, who could not separate her personal beliefs from the professional counseling that she provided: “[F]ar from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, [the university] instructs her not to express her personal beliefs regarding the client’s moral values.”

Keeton, in other words, crossed the line between beliefs and conduct. She may believe whatever she likes, but she may not ignore academic and professional requirements designed to protect her clients—especially when serving clients at a university-run clinic.

As the court explained, the First Amendment would not prohibit a medical school from requiring students to perform blood transfusions in their clinical placements, nor would it prohibit a law school from requiring extra ethics training for a student who “expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state bar’s rules.” Doctors can’t treat their patients with leeches; counselors can’t impose their beliefs on patients or harm them using discredited methods. Whatever their views, medical professionals have to treat their clients competently.

Ward v. Polite

The Alliance Defending Freedom’s follow-up case, Ward v. Polite, sought to give counseling students the right to withhold service from LGBTQ patients and also to practice anti-gay “conversion therapy” on those patients. The case’s facts were a bit murkier, and this led the appeals court to send it to trial; as a result, the student ultimately extracted only a modest settlement from the university. But as in Keeton’s case, the court rejected in a 2012 decision the attempt to give counseling students the right to impose their religious views on their clients.

Julea Ward studied counseling at Eastern Michigan University; like Keeton, she was training to be a school counselor. When she reviewed the file for her third client in the required clinical practicum, she realized that he was seeking counseling about a romantic relationship with someone of the same sex. As the Court of Appeals recounted, Ward did not want to counsel the client about this topic, and asked her faculty supervisor “(1) whether she should meet with the client and refer him [to a different counselor] only if it became necessary—only if the counseling session required Ward to affirm the client’s same-sex relationship—or (2) whether the school should reassign the client from the outset.” Although her supervisor reassigned the client, it was the first time in 20 years that one of her students had made such a request. So Ward’s supervisor scheduled a meeting with her.

Then things went off the rails. Ward, explained the court, “reiterated her religious objection to affirming same-sex relationships.” She told university officials that while she had “no problem counseling gay and lesbian clients,” she would counsel them only if “the university did not require her to affirm their sexual orientation.” She also refused to counsel “heterosexual clients about extra-marital sex and adultery in a values-affirming way.” As for the professional rules governing counselors, Ward said, “who’s the [American Counseling Association] to tell me what to do. I answer to a higher power and I’m not selling out God.”

All this led the university to expel Ward, and she sued. She claimed that the university violated her free speech and free exercise rights, and that she had a constitutional right to withhold affirming therapy relating to any same-sex relationships or different-sex relationships outside of marriage. Like Keeton, Ward also argued that the First Amendment prohibited the university from requiring “gay-affirmative therapy” while prohibiting “reparative therapy.” After factual discovery, the trial court dismissed her case.

On appeal before the U.S. Court of Appeals for the Sixth Circuit, Ward eked out a narrow and temporary win: The court held that the case should go to a jury. Because the university did not have a written policy prohibiting referrals, and based on a few troubling faculty statements during Ward’s review, the court ruled that a reasonable jury could potentially find that the university invoked a no-referrals policy “as a pretext for punishing Ward’s religious views and speech.” At the same time, the court recognized that a jury could view the facts less favorably to Ward and rule for the university.

And although the decision appeared to sympathize with Ward’s desire to withhold service from certain types of clients, the court flatly rejected Ward’s sweeping arguments that she had the right to stray from the school curriculum, refuse to counsel LGBTQ clients, or practice anti-gay “conversion therapy.” For one, it said, “Curriculum choices are a form of school speech, giving schools considerable flexibility in designing courses and policies and in enforcing them so long as they amount to reasonable means of furthering legitimate educational ends.” Thus, the problem was “not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice.” On the contrary, the court emphasized “the [legal] latitude educational institutions—at any level—must have to further legitimate curricular objectives.”

Indeed, the university had good reason to require counseling students—especially those studying to be school counselors—to treat diverse populations. A school counselor who refuses to counsel anyone with regard to nonmarital, nonheterosexual relationships will struggle to find clients: Nearly four in five Americans have had sex by age 21; more than half have done so by the time they turn 18, while only 6 percent of women and 2 percent of men are married by that age.

In any event, withholding service from entire classes of people violates professional ethical rules even for nonschool counselors. Although the ACA permits client referrals in certain circumstances, the agency’s brief in Ward’s case emphasized that counselors may not refuse to treat entire groups. Ward, in sum, “violated the ACA Code of Ethics by refusing to counsel clients who may wish to discuss homosexual relationships, as well as others who fail to comport with her religious teachings, e.g., persons who engage in ‘fornication.'”

But Ward’s approach would have been unethical even if, in theory, she were permitted to withhold service from each and every client seeking counseling related to nonmarital sex (or even marital sex by same-sex couples). Because in many cases, the need for referral would arise well into the counseling relationship. And as the trial court explained, “a client may seek counseling for depression, or issues with their parents, and end up discussing a homosexual relationship.” No matter what the reason, mid-counseling referrals harm clients, and such referrals are even more harmful if they happen because the counselor disapproves of the client.

Fortunately, Ward did not win the sweeping right to harm her clients or otherwise upend professional counseling standards. Rather, the court explained that “the even-handed enforcement of a neutral policy”—such as the ACA’s ethical rules—”is likely to steer clear of the First Amendment’s free-speech and free-exercise protections.” (Full disclosure: I worked on an amicus brief in support of the university when at Americans United.)

Ward’s lawyers pretended that she won the case, but she ended up settling it for relatively little. She received only $75,000; and although the expulsion was removed from her record, she was not reinstated. Without a graduate counseling degree, she cannot become a licensed counselor.

Cash v. Hofherr

The latest anti-gay counseling salvo comes from Andrew Cash, whose April 2016 lawsuit against Missouri State University attempts to rely on yet murkier facts and could wind up, on appeal, in front of the more conservative U.S. Court of Appeals for the Eighth Circuit. In addition to his range of constitutional claims (freedom of speech, free exercise of religion, equal protection of law), he has added a claim under the Missouri Religious Freedom Restoration Act.

The complaint describes Cash as “a Christian with sincerely-held beliefs”—as opposed to insincere ones, apparently—”on issues of morality.” Cash started his graduate counseling program at Missouri State University in September 2007. The program requires a clinical internship, which includes 240 hours of in-person client contact. Cash decided to do his clinical internship at Springfield Marriage and Family Institute, which appeared on the counseling department’s list of approved sites. Far from holding anti-Christian bias, Cash’s instructor agreed that his proposed class presentation on “Christian counseling and its unique approach and value to the Counseling profession” was an “excellent” idea.

But the presentation itself revealed that Cash intended to discriminate against LGBTQ patients. In response to a question during the presentation, the head of the Marriage and Family Institute stated that “he would counsel gay persons as individuals, but not as couples, because of his religious beliefs,” and that he would “refer the couple for counseling to other counselors he knew who did not share his religious views.” Because discrimination on the basis of sexual orientation violates ACA guidelines, the university determined that Cash should not continue counseling at the Marriage and Family Institute and that it would be removed from the approved list of placements. Cash suggested, however, that he should be able to withhold treatment from same-sex couples.

All this took place in 2011. The complaint (both the original and amended versions) evades precisely what happened between 2012 and 2014, when Cash was finally expelled. You get the sense that Cash’s lawyers at the Thomas More Society are trying to yadda-yadda-yadda the most important facts of the case.

In any event, the complaint does acknowledge that when Cash applied for a new internship, he both ignored the university’s instructions that the previous hours were not supposed to count toward his requirement, and appeared to be “still very much defend[ing] his previous internship stating that there was nothing wrong with it”—thus suggesting that he would continue to refuse to counsel same-sex couples. He continued to defend his position in later meetings with school officials; by November 2014, the university removed him from the program.

Yet in challenging this expulsion, Cash’s complaint says that he was merely “expressing his Christian worldview regarding a hypothetical situation concerning whether he would provide counseling services to a gay/homosexual couple.”

That’s more than just a worldview, though. It also reflects his intent to discriminate against a class of people—in a manner that violates his program’s requirements and the ACA guidelines. Whether hypothetically or otherwise, Cash stated and reiterated that he would withhold treatment from same-sex couples. A law student who stated, as part of his clinic, that he would refuse to represent Christian clients would be announcing his intent to violate the rules of professional responsibility, and the law school could and would remove him from the school’s legal clinic. And they could and would do so even if a Christian client had yet to walk in the door.

But maybe this was just a big misunderstanding, and Cash would, in practice, be willing and able to counsel same-sex couples? Not so, said Cash’s lawyer from the Thomas More Society, speaking about the case to Christian news outlet WORLD: “I think Christians have to go on the offensive, or it’s going to be a situation like Sodom and Gomorrah in the Bible, where you aren’t safe to have a guest in your home, with the demands of the gay mob.” Yikes.

Although Cash seems to want a maximalist decision allowing counselors and counseling students to withhold service from LGBTQ couples, it remains to be seen how the case will turn out. The complaint appears to elide two years’ worth of key facts in order to present Cash’s claims as sympathetically as possible; even if the trial court were to rule in favor of the university after more factual development, Cash would have the opportunity to appeal to the U.S. Court of Appeals for the Eighth Circuit, one of the country’s most conservative federal appeals courts.

More generally, we’re still early in the legal battles over attempts to use religious freedom rights as grounds to discriminate; only a few courts across the country have weighed in. So no matter how extreme Cash or his lawyers may seem, it’s too early to count them out.

* * *

The cases brought by Keeton, Ward, and Cash not only attempt to undermine anti-discrimination policies. They also seek to change the nature of the counselor-client relationship. Current norms provide that a counselor is a professional who provides a service to a client. But the plaintiffs in these cases seem to think that counseling a patient is no different than lecturing a passerby in the town square, in that counseling a patient necessarily involves expressing the counselor’s personal and religious beliefs. Courts have thus far rejected these attempts to redefine the counselor-patient relationship, just as they have turned away attempts to challenge bans on “reparative therapy.”

The principles underlying the courts’ decisions protect more than just LGBTQ clients. As the 11th Circuit explained in Keeton, the university trains students to “be competent to work with all populations, and that all students not impose their personal religious values on their clients, whether, for instance, they believe that persons ought to be Christians rather than Muslims, Jews or atheists, or that homosexuality is moral or immoral.” Licensed professionals are supposed to help their clients, not treat them as prospective converts.

News Politics

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

Ally Boguhn

When asked this month about the platform’s opposition to Hyde, Hillary Clinton’s running mate Sen. Tim Kaine (D-VA) said that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde Amendment.”

Democrats voted on their party platform Monday, codifying for the first time the party’s stated commitment to repealing restrictions on federal funding for abortion care.

The platform includes a call to repeal the Hyde Amendment, an appropriations ban on federal funding for abortion reimplemented on a yearly basis. The amendment disproportionately affects people of color and those with low incomes.

“We believe unequivocally, like the majority of Americans, that every woman should have access to quality reproductive health care services, including safe and legal abortion—regardless of where she lives, how much money she makes, or how she is insured,” states the Democratic Party platform. “We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment.”

The platform also calls for an end to the Helms Amendment, which ensures that “no foreign assistance funds may be used to pay for the performance of abortion as a method of family planning.”

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Though Helms allows funding for abortion care in cases of rape, incest, and life endangerment, the Obama administration has failed to enforce those guarantees.

Despite the platform’s opposition to the restrictions on abortion care funding, it makes no mention of how the anti-choice measures would be rolled back.

Both presumptive Democratic nominee Hillary Clinton and Sen. Bernie Sanders (I-VT) have promised to address Hyde and Helms if elected. Clinton has said she would “fix the Helms Amendment.”

Speaking at the Iowa Brown and Black Presidential Forum in January, Clinton said that the Hyde Amendment “is just hard to justify because … certainly the full range of reproductive health rights that women should have includes access to safe and legal abortion.” In 2008, Clinton’s campaign told Rewire that she “does not support the Hyde amendment.”

When asked this month about the platform’s opposition to Hyde, Clinton’s running mate Sen. Tim Kaine (D-VA) said in an interview with the Weekly Standard that he had not “been informed of that” change to the platform though he has “traditionally been a supporter of the Hyde amendment.”

“The Hyde amendment and Helms amendment have prevented countless low-income women from being able to make their own decisions about health, family, and future,” NARAL President Ilyse Hogue said in a statement, addressing an early draft of the platform. “These amendments have ensured that a woman’s right to a safe and legal abortion is a right that’s easier to access if you have the resources to afford it. That’s wrong and stands directly in contrast with the Democratic Party’s principles, and we applaud the Party for reaffirming this in the platform.”