Virginia Regulatory Town Hall
Department of Health Professions
Board of Counseling
Regulations Governing the Practice of Professional Counseling [18 VAC 115 ‑ 20]
Action Unprofessional conduct - conversion therapy
Comment Period Ended on 8/7/2019
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8/7/19  9:13 pm
Commenter: Todd Gathje, Ph.D., The Family Foundation

Don't Prohibit Talk Therapy
Don't Prohibit Biologically Affirming Counseling
The Family Foundation of Virginia urges the Board of Counseling to not pursue any regulatory action that prohibits the professional use of talk therapy or biologically affirming counseling.  This proposed regulatory action would generate severe consequences for patients and professional counselors.

Denies Services Desired by Patients

The proposed regulation would prevent children and adolescents from being able to receive the proper and desired care they need to relieve them of any distress from unwanted same-sex attractions or gender dysphoria, which could lead to severe outcomes, including bodily harm.  Prohibitions on talk therapies – which this regulatory action effectively creates – would prevent minors from receiving the guidance they seek by preventing licensed professionals from recognizing their minor client’s right to control the goals and direction of his or her life. 

Furthermore, the policy appears to imply that all children are sufficiently mature and autonomous to determine, permanently and without question, both their gender and sexual identification.   If that is so, then it must be equally true that they are sufficiently mature and autonomous to consent to receiving guidance to overcome unwanted feelings or confusion about these same matters. The very essence of the regulatory action would prevent counselors from fulfilling their ethical duty to respect patient autonomy.

Usurps Parental Rights

This regulation would be in direct conflict with Virginia law, which makes clear that parents, not the government and its regulatory agencies, have a “fundamental right to make decisions concerning the upbringing, education, and care of the parent's child” (§ 1-240.1 of the Code of Virginia).  This includes seeking the most viable form of treatment.  

Violates Counselor Free Speech

Furthermore, the proposed regulation would violate the free speech rights of licensed medical professionals by employing viewpoint-based restrictions on speech, or more commonly “viewpoint discrimination.”  Illegitimate viewpoint discrimination is clearly evident in the draft regulation.  While psychologists would be free to support and encourage patients to explore their sexuality in various ways, even to the point of undergoing physical bodily changes, they are simultaneously prohibited from encouraging and supporting a person to affirm and embrace natural sexual expressions and in the physical body they were born in.  Under this proposed policy, those who do will face state-imposed loss of their professional license.

Professional psychologists/counselors likewise have a duty to deal truthfully with their minor clients. This surely encompasses life’s most fundamental truths, such as the known biological (as well as non-biological) differences between males and females. For licensed professionals who acknowledge these truths, being compelled to repress them when in contact with a minor client would inevitably create for them real ethical dilemmas.

Contradicts the General Assembly

While administrative agencies can promulgate rules and policies to carry out duties delegated by the General Assembly, they cannot do so outside the statutory parameters established by it. In fact, the General Assembly has specifically and repeatedly rejected proposed bans on so-called “conversion therapy” for numerous years, and as recently as 2018 (HB 363, Delegate Hope; SB 245 Senator Surovell) through the committee process.

This proposed regulation, therefore, is clearly an administrative action in direct contravention of the will and intentions of the General Assembly.

CommentID: 75612