The proposed amendments are based on the premise that ordinary ethical “talk therapy” (conversations between a client and a therapist) that recognizes that sexual attractions or gender perceptions can and do change for some people over time is somehow harmful to minors. That premise is based on the outdated and discredited assumption that same-sex attractions are innate (i.e., genetically predetermined) and that transgender perceptions/gender dysphoria are somehow immutable. In substance, the proposed amendments would enshrine these propositions into law.
Neither scientific research nor logic nor clinical experience supports these propositions. Indeed, both clinical experience and recent research show that the sexual attractions of those who experience same-sex attractions may be, and often are, fluid. Nor is there any scientific evidence of a “gay gene;” indeed, research exploring possible genetic correlation of same-sex attraction implies that there is no such gene or genes. Moreover, gender confusion or dysphoria obviously is not immutable; the vast majority of cases of teenage gender dysphoria resolve themselves over time without any therapeutic intervention at all.
The proposed rule amendments are grounded in a misunderstanding or mischaracterization of what actually does—and does not—happen in counseling by an ethical, competent therapist who recognizes that sexual attractions and gender identity sometimes can and do change. In fact, an ethical therapist, while open to the possibility of client change, is not attempting to “change” the client at all. The focus of therapists whose approach is open to a client’s desire for change is not primarily on the attractions or feelings themselves. Instead, their therapy addresses underlying issues that are causing clients distress (which may range from family, parental, and social relationships to sexual abuse or trauma to pornography use) that may also bear on a client’s sexual attractions or behaviors or gender confusion. Therapy may explore the importance and role that the attractions and behaviors play in the client’s life and what may reinforce them (including pornography use), and exploring fluidity in attractions, all according to the client’s freely chosen and desired objectives.
Ethical and competent therapy never involves physically aversive techniques (such as electroshocking genitals or inducing vomiting). No known licensed therapist in Utah has used such techniques for decades, as the supporters of the proposed amendments concede. Nor does ethical and competent therapy involve verbally abusive techniques such as bullying, intimidation, shaming, or humiliation. Contrary to the impression the activists who support the proposed amendments want people to have, the proposed amendments are not directed either exclusively or even primarily at physically aversive practices. They are designed to suppress ordinary conversational speech between a client and his or her therapist that does not support the unscientific innate and immutable activist misinformation.
Again contrary to what the activist supporters of the proposed amendments want government officials to believe, there is no scientific research that indicates that ethical and competent “talk” therapy with a licensed therapist that is open to the possibility that a client’s sexual attractions, sexual orientation, or gender dysphoria may be fluid is harmful to either minor or adult clients. Indeed, the real-world experience of both therapists and clients is the opposite. While many clients may not experience significant change in same-sex attractions or behaviors or gender perceptions in the course of therapy, many do. A substantial share of gender-confused youth will be helped in resolving that confusion. Many clients experiencing same-sex attractions do experience significant or substantial diminishment of those attractions and increased ability to manage them and live lives consistent with their personal religious and moral convictions.
Further, some clients also experience increase in heterosexual attractions, even in some cases to the point of entering into healthy and satisfying heterosexual marriages.
The proposed amendments (like HB 399) are structured to define prohibited “sexual orientation change efforts” and “gender identity change efforts” both every broadly and ambiguously, and at the same time create a “safe harbor” for therapeutic approaches that are “gay-affirming” or transgender/gender-dysphoria-affirming. Because the “affirming” approach would be the only therapeutic approach for which a therapist could be assured that he or she would not be at risk of professional discipline, the inevitable result would be to chill any therapeutic discussion that is not gay-affirming or transgender/gender-dysphoria-affirming. That was the intent of the proponents of HB 399.
Indeed, the fear of being caught up in a costly quasi-judicial proceeding, with its attendant negative publicity, would lead therapists to be overcautious about any conversation outside an “affirming” approach concerning any issue that could bear on same-sex attractions or gender confusion or dysphoria.
The proposed amendments give rise to a number of unanswered, difficult, and very troublesome questions in practical application in the therapist’s office. In a wide variety of situations that are likely to arise, the therapist simply would not know and could not ascertain where the line is between what discussions would be prohibited and what discussions would be permitted (other than those from a gay-affirming or transgender/gender-dysphoria-affirming perspective). Good rules provide bright and clear lines defining what is prohibited versus what is proper. The proposed amendments exemplify the opposite.
The likely practical result of the proposed amendments would be to (a) limit therapists’ ability to effectively help minors; (b) potentially increase the risk of suicide in minors rather than reduce it; (c) make it more difficult to effectively address trauma resulting from sexual abuse; (d) make it more difficult to address compulsive sexual thoughts and behaviors; (e) prevent therapists from addressing with minor clients feelings or emotions related to gender confusion or the risks of gender-altering medical procedures; and (f) impede minor clients’ ability to achieve their own self-determined goals.
The proposed amendments are not based on objective research or scientific fact. In drafting the proposed amendments, the Psychologist Licensing Board, according to the Rule Analysis, “consulted with national experts, and coordinated with the American Psychological Association” (APA). However, it appears that the “experts” consulted were limited to gay- affirming and transgender-affirming advocates. Further, it is very clear that the APA division that deals with sexual orientation and gender issues (Division 44) is severely ideologically corrupted and biased, and cannot credibly lay claim to either balance or scientific objectivity. Its own official statements show that Division 44 is much more of a pro-gay-activist and pro- transgender political advocacy section of the APA than a research and scientific organization, and the materials it produces—on which the Psychologist Licensing Board relies—reflect that. Nevertheless, even the radically pro-gay and pro-transgender Division 44, by its own admission, has not found any reliable scientific evidence that ordinary ethical, competent therapy by qualified licensed therapists that addresses issues that may have bearing on a client’s sexual attractions or behaviors or gender perceptions is harmful to minor or adult clients, much less generally or inherently harmful.
Science has not discovered a “gay gene” or genes, and the results of genetic research imply that there is no such gene. Further, extensive research does indicate that the sexual attractions of a large percentage of men and women who experience same-sex attractions are fluid over time. Same-sex attractions or “orientation” are not inborn or immutable.
The current fad of transgenderism and medical “gender change” procedures is unscientific and involves many risks and dangers, particularly with medical, hormonal, or chemical “change” procedures that are irreversible.
In short, objective research and actual science do not give support to, and provide no basis for, the proposed rule amendments.
The proposed amendments are both a content- and viewpoint-based regulation of speech that is presumptively unconstitutional under the First and Fourteenth Amendments to the Constitution of the United States. Supporters of the proposed amendments (and of HB 399) argue that they are constitutional in view of decisions of the Ninth Circuit and the Third Circuit in 2014 that sustained the California and New Jersey statutory minor therapy bans against a First Amendment challenge. However, those decisions were based primarily on a First Amendment legal theory that the U.S. Supreme Court later expressly rejected in a 2018 decision. Indeed, the Supreme Court identified both the Ninth Circuit and the Third Circuit decisions as the primary examples of the legal doctrine the Supreme Court rejected. Thus, the 2014 Ninth Circuit and Third Circuit decisions are not valid or reliable precedent.
The proposed amendments, in their operation, would not be neutral toward religion. They are based on an implicit hostility to the religious principles of a majority of clients (of all religious backgrounds) who seek therapy to address unwanted same-sex attractions or to resolve gender dysphoria, and would make it more difficult for those clients to obtain professional assistance in living according to their faith and religious convictions. The proposals further would exert forceful legal pressure on therapists of faith to either provide therapy that is contrary to their religious convictions or to remain silent or leave their practices.
In any number of situations, the proposed amendments would leave people of common intelligence (in this case, therapists) necessarily guessing at their meaning and differing as to their application. The proposed amendments do not give fair notice of what therapeutic conversational speech is forbidden. Consequently, the proposed amendments are impermissibly vague, and thus void, under the Due Process clause of the Fourteenth Amendment.