The Kentucky Department of Juvenile Justice (DJJ) has a policy (Policy 912) that requires that lesbian, gay, bisexual, transgender, questioning, and intersex (LGBTQI) juveniles be treated with respect for their identities. A minister who volunteered to work with young people at the Warren County Regional Juvenile Detention Center is now challenging that policy after his services were revoked because he refused to comply with it.
Minister David Wells of the Pleasant View Baptist Church in McQuady, KY is represented by the anti-LGBT Liberty Counsel, which sent a letter to the DJJ on his behalf threatening legal action if the policy is not lifted and Wells reinstated. Wells refused to sign a statement promising to refrain from ever telling juvenile inmates that homosexuality was “sinful.” Specifically, the policy requires that volunteers not use “derogatory language in a manner that conveys bias towards or hatred of the LGBTQI community” and that they “shall not imply or tell LGBTQI juveniles that they are abnormal, deviant, sinful, or that they can or should change their sexual orientation or gender identity.”
Superintendent Gene Wade outlined how Wells could comply with the policy, explaining, “You can give a scripture reference to the kids, and let them look it up, but you can’t read it in their hearing. You can’t say ‘sinful’; you can’t discuss sexual orientation — heterosexual or homosexual — period.” These terms were not satisfactory for Wells to continue his volunteer work at the detention center.
This policy, the Liberty Counsel argues, is viewpoint discrimination under the First Amendment. “By restricting speech which volunteers are allowed to use while ministering to youth detainees, the State of Kentucky and the Kentucky Department of Juvenile Justice have violated the protections given to private speech through the First Amendment and the Kentucky Constitution. Policy 912 requires affirmation of homosexuality as a condition of providing spiritual guidance to troubled youth, and singles out a particular theological viewpoint as expressly disfavored by the State of Kentucky. This the State cannot do.”
A recent ruling from the Supreme Court may suggest otherwise. In Walker v. Texas Division, Sons of Confederate Veterans, the Court found that Texas was not required to issue a license plate that incorporated the Confederate battle flag. Though the government cannot restrict an individual’s speech, it can decide what it wants to say in its own voice. As an agent of the government — volunteer or otherwise — Wells’ speech may similarly qualify as government speech within the capacity of his services at the detention center. Thus, the DJJ may be perfectly within its rights to control what kind of counseling can be offered there.
The DJJ has good reason for its policy as well. The medical community’s consensus is that affirming LGBT identities is the best way to support the mental health and well-being of LGBT people, including youth. For example, the Society for Adolescent Health and Medicine recommends affirmative therapeutic approaches for adolescents, including setting up specific protections to ensure that’s what takes place in juvenile justice facilities. LGBT youth are significantly over-represented in the juvenile justice system and thus particularly vulnerable to mistreatment within it. Ex-gay therapy and other attempts to change a person’s sexual orientation have been roundly condemned as ineffective and potentially harmful.
“Many juveniles are in DJJ custody because of sexual crimes,” the letter nevertheless argues, “and Mr. Wells must be able to discuss the Bible and matters of sexuality with inmates, and he therefore was unable to sign the form.” The letter strongly argues that condemning homosexuality and describing it as the consequence of abuse are vital to the work Wells was doing. “Many children in the DJJ system have been sexually abused by others, including those of the same sex, and experience confusion about their sexuality, including feelings of same-sex attractions and compulsive sexual behavior. Indeed, Mr. Wells himself is ideally suited to minister to them, as he was sexually abused for many years by a man when he was a young child, and successfully went on to overcome that abuse.” The letter does not qualify exactly what it means that he “went on to overcome that abuse,” but given how Liberty Counsel believes that such abuse causes homosexuality and promotes the idea of people “overcoming unwanted same-sex attractions,” this may be a coded way of indicating that Wells is ex-gay himself.
The Liberty Counsel, which the Southern Poverty Law Center has identified as a hate group for its anti-LGBT rhetoric, regularly defends ex-gay therapy and other anti-gay and gay-shaming policies with similar rhetoric. The organization regularly espouses the supposed health consequences associated with gay sex, the idea that homosexuals “entrap” and “groom” children into the homosexual lifestyle, and specifically that homosexuality (what it calls “confusion”) is “caused by the likes of a Jerry Sandusky abuser.”
Liberty Counsel Chairman Mat Staver, who has compared gay rights advocates to Hamas terrorists, told WorldNetDaily, “Pastor Wells must be able to discuss what the Bible says about matters of sexuality with the juveniles he is trying to help. To remove the Bible from a pastor’s hands is like removing a scalpel from a surgeon’s hands. Without it, they cannot provide healing,” adding that “DJJ 912 equates the teaching of biblical morality with ‘derogatory,’ ‘biased’ and ‘hateful’ speech.”
The letter argues that even though Wells clearly believes homosexuality is sinful, there is no evidence he actually violated the policy. “It is not ‘hatred’ or ‘bias’ to lovingly point out the harms of homosexuality, and the power of Christ to change lives, should the occasion require it.”
The Kentucky DJJ did not immediately respond to a ThinkProgress request for comment. The Liberty Counsel has given the department until the end of this week to end any policy creating a “religious litmus test to the subject of homosexuality,” specifically revoke DJJ 912, and reinstate Wells. If these demands are not met, the Liberty Counsel has promised to “take further steps to prevent irreparable harm to the rights of Mr. Wells and similarly situated ministers and volunteers.”
The Kentucky Department of Juvenile Justice provided ThinkProgress with the following statement in regards to the letter:
The Department of Juvenile Justice seeks to protect the rights of all youth in its care and custody regardless of sexual orientation or committing offense. To this end, the department prohibits its staff and volunteers from discriminating against youth based on sexual orientation or gender identity.
The language contained in the department’s volunteer form is taken from DJJ’s Policy 912, Section IV.G & H, incorporated by reference in 505 KAR 1:170:
G. DJJ staff, volunteers, interns, and contractors, when working with juveniles under the care of DJJ, shall use respectful language and terminology that does not further stereotype the LGBTQI community.
H. DJJ staff, volunteers, interns, and contractors, in the course of their work, shall not refer to juveniles by using derogatory language in a manner that conveys bias towards or hatred of the LGBTQI community. DJJ staff, volunteers, interns, and contractors shall not imply or tell LGBTQI juveniles that they are abnormal, deviant, sinful, or that they can or should change their sexual orientation or gender identity.
Such protections are rooted in the federal requirements of the Prison Rape Elimination Act, 28 C.F.R. 115, which require a zero-tolerance policy against any form of sexual abuse or harassment by staff, volunteers, or contractors. These requirements foster an open and inclusive culture within the department’s programs and ensure that youth in custody are free from harassment by other others based upon their sexual orientation. A complete copy of the department’s policy on sexual orientation and gender identity can be found at: http://djj.ky.gov/Pages/Policy-Manual.aspx