Tenn.'s Discriminatory Counseling Law Protects LGBT Folks from Getting Bad Advice

As a bonus, it also avoids the thorny issue of compelled speech.


Credit: Katarzyna Bialasiewicz |

Is there are service or occupation that is less of a "public accommodation" than psychological counseling? Therapy is a deeply personal, deeply intimate, often experimental process. It is dependent in part on the therapist developing a bond of trust with his or her client. Getting therapy is not like buying a pack of gum or a ticket to the movies or a stack of flapjacks at a diner. The relationship between the professional and the client actually matters.

So the anger over a new bill signed into law in Tennessee seems overheated and irrational. Yesterday Gov. Bill Haslam signed into law Senate Bill 1556, which allows counselors and therapists to decline to provide their services to a client for "goals, outcomes, or behaviors that conflict with the sincerely held principles of the counselor or therapist," as long as the professional recommends somebody else who can help the client. This is widely understood to be a law to permit therapists to turn away gay and (probably more likely) transgender clients if they are not on board with their sexual orientations or gender transitions.

It's a law that permits discrimination. There's no getting around it. The law is literally, obviously designed to allow a service provider to refuse customers on the basis of certain attributes. That doesn't, though, necessarily mean that it's a bad law. In our current round of culture war conflicts, some folks are absolutely outraged. Here's some anger from a mayor and the American Civil Liberties Union via The Tennessean:

Nashville Mayor Megan Barry, who is a Democrat and opposed the bill, said in a statement Wednesday that she was disappointed in the governor's decision to sign it into law.

"It hurts our LGBT citizens, negatively impacts our economy and seeks to undermine the counseling profession. As mayor of Nashville, I'll continue to do whatever I can to create a warm and welcoming city free from discrimination," Barry said.

Hedy Weinberg, executive director of the American Civil Liberties Union of Tennessee, had a similar position and said ACLU is "disappointed that the governor has chosen to sign this troubling bill into law. This measure is rooted in the dangerous misconception that religion can be used as a free pass to discriminate. Allowing counselors to treat some potential clients differently from others based on their personal beliefs defies professional standards and could cause significant harm to vulnerable people."

A couple of thoughts on this that people like Barry and Weinberg should stop for a moment and consider:

First, what sort of potential "significant harm" could come to, for example, a transgender person who consults with a therapist who doesn't support or agree with transitioning but it is essentially forced to keep that belief quiet and serve this client? What sort of quality of care is that transgender person likely to get? These folks seems to be simply treating therapy like any other professional service, like getting a mole removed or one's taxes done. That's simply not how therapy works. Gay and transgender clients face significant harms from unwittingly ending up with therapists who do not support them, but are constricted by the law from saying so or sending them to a therapist who would fit them better.

Second, if we set aside for a moment the issue of whether the right of free association applies to commercial service providers, we can debate whether goods like wedding cakes or floral arrangements count as artistic expressions and are therefore subject to free speech protections. But there's no debate here: Therapy is literally speech. The consequence of an antidiscrimination law covering therapists wouldn't just be requiring them to take these clients—it would be requiring them to actually say and endorse therapeutic positions with which they do not agree. It is compelled speech disguised as occupational regulation. In the culture war cake wars, even those who argue that a baker can be forced to make a wedding cake acknowledge that the baker can't be compelled to put messages onto a cake he or she finds obscene or disagrees with. Thus a bakery can't be forced to make a cake with a swastika on it or to express overt pro-gay or anti-gay sentiments. That counts as compelled speech, and it's generally unconstitutional.

How is any of that different from the government requiring a therapist to take on clients and tell them things that therapist does not believe and in fact may believe is wrong or dangerous? Or let's consider a possible unintended outcome here: a court determines that a therapist can be obligated to accept gay or transgender clients under a state's antidiscrimination laws, but the state cannot compel the therapist to espouse positions with which he or she does not agree. Who does this even help? Certainly not the gay or transgender client.

The Tennessean notes that the reason why the state felt the need to pass this law in the first place is because Tennessee incorporates the American Counseling Association's (ACA) ethics rules into its regulations for therapists. The ACA (which opposes this law) updated its ethics rules in 2014 to prohibit referring clients to other therapists for discriminatory reasons.

Perhaps what Tennessee should be doing here is considering whether it's appropriate in the first place for the state to tie the legal right to practice an occupation with the rules set up by a private association (with its own agendas) within that occupation. The position the ACA holds sets up an easy, voluntary solution. The ACA has every right to set up ethical guidelines and require that its members follow them. Those who don't want to follow those rules do not get to be a member of the ACA. This is a completely separate matter from whether an individual should be allowed to practice therapy under Tennessee law.

Then the ACA can promote the fact that their members do not discriminate. People looking for counseling on gay or transgender issues will then know that when they select somebody who is a member of the ACA, they'll find a supportive therapist. The Tennessean even notes that some activists are setting up an initiative for counselors to sign up and indicate that they won't discriminate. I bet they're going to find plenty of them.

Finally, I suspect that the outcome people want but are reluctant to actually say out loud is that they don't want people to hold these anti-gay, anti-transgender attitudes at all, and if they do, they should be forbidden from being therapists, period. That's a very blinkered, simplistic attitude toward a field of work that provides a wide spread of counseling treatments. That a particular therapist is not a good choice for a gay or transgender teen to seek counseling does not mean that therapist isn't great at other types of treatment in the field for other people. It's a needlessly reductive attitude. Let a thousand therapists bloom and leave it to citizens to find the ones that fit them best.

There is no reason for this conflict to even be happening at all. The government should not be playing a role in determining the circumstances by which therapists take on clients and it should most clearly and obviously not be determining what therapists say in their sessions.