An Orthodox Jewish therapist is suing New York City, seeking to overturn its ban on anti-LGBTQ conversion therapy. Represented by the hate group Alliance Defending Freedom (ADF), Dr. David Schwartz argues that the ban violates his and his patients’ rights to free speech and religion.
In the complaint, ADF calls the ban a “Counseling Censorship Law” that “intrude[s] into the counseling room” rather than letting the field of therapy evolve and weed out therapeutic methods through an “uninhibited marketplace of ideas.” This, despite the fact that every major medical organization has condemned the practice as ineffective and harmful — some over two decades ago.
ADF nevertheless contends that Schwartz should be allowed to give talk therapy to patients that helps them achieve their faith-inspired goals of reducing their same-sex attractions and/or increasing their different-sex attractions. The suit even alleges that, because only certain religious groups would seek such treatment, the ban itself constitutes religious hostility.
Throughout the complaint are subtle rebukes of LGBTQ identities, such as the claim that Schwartz’s patients may want to bring their “subjective desires into line with the objective purposes of sexual differentiation and sexual reproduction.” The city’s ban prohibits providing counseling “towards congruence between a patient’s objective sex and biological reproductive nature and his or her felt sense of gender identity and sexual attractions,” it claims.
New York City’s conversion therapy ban, passed in 2017, is unique in that it prohibits conversion therapy for anybody, including adults. The bans currently in place in 15 states only protect minors, who cannot personally consent. Washington, D.C. is poised to extend its ban to protect some adults, but only those under a conservatorship or guardianship who are similarly unable to consent.
Last year, California began consideration of a bill that would define conversion therapy as a form of consumer fraud, which would protect adults statewide. It did not pass, but will likely be introduced again soon. The premise is borrowed from a successful lawsuit that was brought against a Jewish conversion therapy provider in New Jersey under that state’s consumer fraud laws.
ADF argues that such bans intrude on patients’ rights — though no patients are represented in the suit. They should be able to pursue whatever treatment they desire, the complaint argues, including those that conform to their religious beliefs.
This is one of the first major lawsuits ADF has brought in regards to conversion therapy, though it did lobby against California’s bill, sparking the myth that the bill would somehow ban the Bible. Previously, another hate group known as the Liberty Counsel — infamous for representing Kim Davis, the ousted Kentucky county clerk who refused to issue a marriage licenses to same-sex couples — filed numerous suits, but lost cases in both California and New Jersey. Liberty Counsel recently filed yet another suit of its own, challenging Maryland’s ban.
Both groups may be optimistic that the recent shift in the Supreme Court will lead to a different outcome. Previously, the Court declined to hear Liberty Counsel’s appeals. Not only is the Court more conservative now that Justice Brett Kavanaugh occupies the seat previously held by Anthony Kennedy, but it also signaled last year that it’s open to overturning conversion therapy bans.
Last year, the Court overturned California’s law that required so-called crisis pregnancy centers to share accurate information about abortion to women who seek their services. Justice Clarence Thomas specifically referenced one of Liberty Counsel’s appeals, writing that it was wrongly decided because the Court should not be regulating professionals’ speech (apparently regardless of whether that speech itself can be harmful). Conversion therapy advocates were thrilled.
Given the relentless way both ADF and Liberty Counsel pursue litigation, these cases could soon arrive back at the Supreme Court and meet a very different fate.