Analysis Sexual Health

Vaginas Are Sperm Depositories and Other Scary Things About the State of New York’s Sex Ed Curricula

Martha Kempner

The New York Civil Liberties Union released a new report this week detailing its findings from a survey of school districts across the state. And the findings are pretty scary.

Along with many others children, teens, and adults, this week I went back to school, too. I started teaching Introduction to Human Sexuality at a local college, something I haven’t done in about six years. In an effort to gauge what my students had already learned and what they wanted to know, I gave them an anonymous questionnaire which, in part, asked them to describe their sexuality education up until this point. At least five of them said that they’d had the “standard” or “usual” high school sex education. Unfortunately, this wasn’t particularly enlightening to me because as a new report from the New York Civil Liberties Union (NYCLU) highlights: when it comes to sex ed there is no such thing as standard; every district or even every classroom is different.

A survey of school systems across New York was conducted by NYCLU to determine what, if anything, they were teaching students about sex. Schools in the state are not required to teach comprehensive sexuality education, and while they are required to teach about HIV and certain other health topics, most of the lessons do not address sexuality or relationships. Schools do have to teach about alcohol, drugs, and tobacco; the prevention and detection of certain cancers; child development and parenting skills; and interpersonal violence. They do not, according to the new report, Birds, Bees, and Bias, How Absent Sex Ed Standards Fail New York Students, have to teach about “healthy relationship skills, STI and pregnancy prevention, puberty, [and] anatomy” or “other core aspects of effective, comprehensive sex education.” In 2005, the Department of Education issued state standards for health education, which included many topics related to sexual health. However, these standards are voluntary, and school districts do not have to comply with them. The authors also mention the National Sex Education Standards, which were released early this year by a number of national organizations. These set minimum content requirements for concepts in sex education but are also not binding. The report concludes: 

“The current legal and policy climate permits schools in New York to decide what, if any, sex education they will teach beyond the mandated HIV education. As a result, whether New York’s teens graduate from high school with the information and skills crucial to making lifelong healthy and informed decisions about sex and relationships rests in the hands of each individual school district, principal and health education teacher, with little guidance and even less oversight.”

To determine what students are learning, NYCLU sent questionnaires to a sample of school districts across the state making sure to include small, medium, and large districts. New York City was excluded in part for efficiency purposes. Since the surveys were sent out, however, the city passed a sex education mandate that went into during the 2011-2012 school year. NYCLU says: “We look forward to reviewing New York City data and instruction at a future date.” In total, 108 school districts were included, representing 542,955 students or nearly half of all students enrolled in districts outside New York City. In addition, the authors reviewed the most commonly used textbooks in the state.

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The study found major gaps in the education young people should have been receiving, as well as numerous factual errors and biases in the information they were actually given.  

Outdated HIV Information

This handout fails to explain HIV/AIDS treatment options or how to reduce transmission. the headstone as an inevitable endpoint exploits outdated fears without providing students with additional information.

As the only sexuality-related topic that is mandated, HIV is one of the subjects most likely to be covered by school districts in the state.  In fact, 93 percent of districts surveyed provided information on this topic. Unfortunately, many of them used outdated information on “prognosis, drug therapies, prevention and transmission.” Some of the outdated and inaccurate information includes districts telling kids:

  • “Once you have AIDS you will live from 6 months to 3 years.”
  • “[HIV] kills an individual.”

One district mentions AZT, the earliest antiretroviral drug, which was introduced in 1987, but does not discuss any of the newer available therapies. Another provides students with a handout that gives an illustrated timeline of what happens when you become infected with HIV. The timeline explains that one goes from being asymptomatic to having HIV symptoms within 12 years (without mentioning available drug therapies), that the individual then goes from HIV symptoms to AIDS and opportunistic infections within two years, and from there they go to a tombstone that says RIP within two more years.

Anything with a tombstone is clearly trying to instill fear in young people, which is bad enough, but this illustration is troubling in other ways as well. It misses many opportunities to talk about how people are now managing to stay healthy longer with HIV, and it misses all opportunities to mention how to prevent the spread of HIV. In fact, the person in the timeline gets tested for HIV and finds out he’s positive before going into the stage where he is asymptomatic which is described as “feeling healthy but still spreading HIV.” 

Young people should know that HIV is preventable through both abstinence and the use of condoms and that it is possible to have it without spreading it. 

Incomplete Information about Anatomy

I’ve always thought of anatomy as one of the more innocuous subjects in sexuality education. Everyone in that classroom has a urethra, so why is it such a big deal to teach them about it? But apparently, if New York schools are any indication, it is. According to the report:

“Of the districts sampled, 69 utilized some illustration of male and female genitalia and reproductive organs. But nearly two thirds excluded any mention or depiction of external female genitalia.” 

In fact, in many places, women were defined solely in relationship to men or the birth process. The Holt Lifetime Health textbook,   which is used in five districts in the state (and many more across the country), defines the vagina as the “organ that receives sperm during reproduction.” One district takes it even further and defines the vagina as a “sperm deposit.” Seriously? As the owner of a vagina, I find that deeply offensive. It’s even more offensive when you think about how it’s not just sexist (women count only for what they do for men), it’s hetero-sexist (the idea of the function of vaginas being for men completely discounts women who have sex with women).

 A handout showing rudimentary illustrations of reproductive “tracts” demonstrates the lack of medically accurate and complete information students learn in basic anatomy lessons.

But don’t worry, ladies. We’re not made just for men, we’re for babies, too.  Many districts define the vagina as the “birth canal” and the uterus as “where the baby grows.” The best illustration of this is a picture called “after birth” which shows a full-term baby still attached by the umbilical cord to half of a woman’s body depicted from the waist down with one leg and a uterus but no  external genitalia—just a gaping hole from the uterus.  I suppose since the external genitalia of women are mainly for women, it is not that important for students to learn about—with the clitoris being the only organ in the human body that has no other function than pleasure and all. Or maybe they just couldn’t find any good male-centric language to use for the definitions. 

The Virgin/Slut Dichotomy

One of the things that I’ve found most upsetting about abstinence-only-until-marriage curricula is their not-so-sensitive treatment of sexually-active students. Most of these programs use messages of shame to suggest that those who have had sex are somehow less worthy of love or respect than those who are waiting (presumably until marriage, though let’s face it, few get there). Though many of the districts are not using strict abstinence curricula, a lot of students in the state are getting these kind of messages.   One district uses a 1997 pamphlet that says:

“Maybe you think your friends will say you’re cool if you have sex. Well, just wait until you catch a sexually transmitted disease. Every year, thousands of teenagers do. And the sex that was supposed to make them so popular, turns them into the school’s biggest outcasts overnight.”

Ten districts use a book that says: 

  • “Waiting until marriage to have sex preserves traditional marriage … Actions that preserve traditional marriage preserve the family. Actions that weaken traditional marriage lead to the breakdown of family life and much unhappiness.”
  • “Being sexually active interferes with your values and family guidelines.”
  • “Having sex outside of a loving, committed marriage increases your risk of feeling rejected, being compared to someone else, and feeling used by a partner.”
  • “When you practice abstinence, you will not be guilty of having sex with an unwilling partner. You will not be accused of date rape.”
  • “Character is a person’s use of self-control to act on responsible values. When you have good character, you uphold family values and practice abstinence from sex.”

With more than 63 percent of high school students having had sex, it’s particularly unfair to suggest that those who have never been sexually active have some kind of lock on morality, while those who are not virgins lack character. Moreover, while most parents do want their children to postpone sex until they are ready to be responsible, not everyone believes that pre-marital sex is wrong. Saving sex until marriage is not, contrary to what these districts are suggesting, a universal family value.

Everyone, and We Do Mean Everyone, is Heterosexual

The report also focuses on the messages that these districts are sending about sexual orientation to those students who are lesbian, gay, bisexual, or questioning their orientation (LGBTQ). In fact, more than half the districts surveyed provide no instruction on this topic at all. They do not even mention gay men, lesbians, or bisexual individuals.

Unfortunately, that may be as a good as it gets because other school districts acknowledge the existence of homosexuality but only mention LGBTQ individuals in a negative context.  For example, one school defines “homosexuals” in its lesson on AIDS  in the United States saying the epidemic  “… Involved homosexual, or gay, men. Homosexuals are people who are attracted to and may engage in sexual relations with people of the same gender.” Another put its explanation of same-sex attraction under the heading “Taboo Definitions.”  And yet another tells students that same-sex attraction is a reason to “seek counseling.” 

Most schools, however, just seemed to refuse to acknowledge the existence of same-sex relationships by relying on examples that include only male-female couples and defining everything from dating to marriage as happening between a boy and a girl or a man and a women.  Families in which same-sex couples are raising children are also completely ignored.

Such messages are dangerous to all young people and likely to alienate LGBTQ students from their teachers and the course messages.

Boys will be Boys and Girls will be Virgins

The report highlights additional lapses in information (such as how few school districts actually teach students how to use condoms) and other biases (such as telling teen parents how impossible it will be for them to be successful or raise healthy children).  Many districts, it seems, also go out of their way to reinforce gender stereotypes.  A number of districts have created very interesting handouts: 

  • One states that: “Most teenage girls believe that sex equals love; other teens—especially boys—believe that sex is not the ultimate expression of the ultimate commitment, but a casual activity and minimize risks or serious consequences.”
  • One describes women as hazardous material discovered by “Adam.”  The handout suggests that the uses of this new element include “highly ornamental especially when in sports car” and “can be a very effective cleaning agent.”  The chemical properties include “reacts well to gold, platinum, and all precious stones.”  And, the hazards include “turns green when placed next to superior specimen.”

My favorite, though, might be the brain maps.  Apparently, the male brain includes an area for “crotch scratching,” a gland for “lame excuses,” and a pea size spot dedicated to “attention span.” The female brain, in contrast, has an “indecision nucleas,” (sic) and a “need for commitment hemisphere,” as well as areas dedicated to talking on the phone, shopping, and jealousy.  Oh, and in case learning about such ridiculous stereotypes which are demeaning to both genders wasn’t enough to fulfill the “gee men and women sure are different” quota, the brains show that men have two big areas for sex and women have only one tiny little one. Yes, let’s once again tell girls that they shouldn’t really want sex and remind boys that there is something wrong with them if they’re not actively trying to get into every girl’s pants. 

Where to Go From Here

The report makes a number of suggestions for how schools, legislators, and others can rectify the situation in New York.  Here are some examples: 

Steps for the State Legislature

Pass legislation. The Legislature could also pass legislation that requires voluntary sex education to meet certain minimum content requirements.

Steps for Local School Districts
Evaluate curricula and textbooks.
Make sure the materials in use in your district are up-to-date, accurate, comprehensive, and inclusive of all students. Help educators select quality materials for their classes.

Steps for Teachers
Supplement textbooks.
Because textbooks are written for a wide audience—including states with abstinence-only decrees—they can be limited in scope and contain religious overtones. Consider supplementing textbooks with quality commercial curricula, materials from local reproductive health care providers and qualified guest speakers. Keep in mind that information enshrined in a textbook may seem more credible in students’ minds; think about how you can present other information in a way that makes it stand out.

Steps for Parents
Speak up. Let your child’s teachers and principals know if you think they are teaching bad information. Going over lessons also gives you a chance to discuss what your child learns at a school—and an opportunity to talk openly about sex, health, relationships and identity issues.

Steps for Students
Ask questions. Don’t be afraid to seek information from a trusted adult or health care provider, especially if your sex-ed class left you with questions. Medical providers, including your school nurse, are bound by confidentiality. They can’t tell anyone about your conversations. (The only exception is if they suspect, or you reveal, that you have been a victim of abuse.)

These pieces of advice are good, not just for the people of New York, but for elected officials, educators, parents, and students across the country. Though this report is just about one state, it gives us cause for concern about the gaps in and problems with sexuality education throughout the nation.

I’m also going to take this advice because when I’m done with this article I have to start planning my lecture for Monday which is on anatomy and physiology. And even though my students are all over 18 years of age and in college, and many said they’d had sex education before, I’m not going to assume they learned even the simplest information.   

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.

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.

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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.