First place — Law student essay contest: Christina Lowry
FFRF awarded Christina $4,000.
By Christina Lowry
In recent years, a spate of “religious refusal” bills have been considered by national and state legislatures. These “conscience clauses” have sought to allow businesses and professionals to operate based on sincerely held religious beliefs, including refusal of service. In the wake of the Obergefell v. Hodges and Masterpiece Cakeshop cases, these bills have often explicitly and implicitly targeted LGBTQ+ individuals for this discrimination.
Two such bills were introduced in the Texas Legislature this spring and are currently under consideration by committees. The first, TX H.B. 4357, shields mental health providers from professional disciplinary action and civil liability for providing counseling based on their sincerely held religious beliefs. The second, TX S.B. 85, permits mental health providers and counselors to refuse to provide any service that would violate their sincerely held religious beliefs. Both have potentially dangerous ramifications for LGBTQ+ Texans.
The LGBTQ+ community has long had a fraught relationship with mental health care. Until 1973, homosexuality was defined by the American Psychiatric Association as a mental illness. Despite efforts by the psychiatric community in the ensuing decades to end the stigma, a variety of pseudoscientific “conversion therapy” practices abound throughout the United States. The evidence indicates these practices are at best ineffective, and at worst can cause permanent harm. Conversion therapy is widely condemned by the medical establishment. Eighteen states have banned the practice for minors, and a 2015 ruling may pave the way for adult victims to be recompensed through state anti-fraud statutes. But, if enacted, H.B. 4357 would protect Texas conversion therapy providers from such fraud and malpractice suits, as long as the counseling stems from a religious belief that homosexuality should be “cured.”
Mental health care is an extensive field. The Texas legislation covering mental health includes behavior analysts, addiction counselors, family therapists, marriage counselors, nurses, physicians, sex offender specialists, corrections officers for the mentally handicapped, and social workers in its definitions. With such a diverse field of needs and treatments, it follows that conversion therapy is far from the only type of religiously influenced mental health care that H.B. 4357 could encompass: Imagine a marriage counselor who believes divorce is sinful, or a social worker who believes children should not be raised by LGBTQ+ parents. State-sponsored addiction counselors already teach that drug use is a moral weakness: Five of the 12 steps of Alcoholics Anonymous mention God (or a higher “power”). AA’s reported effectiveness has come under scrutiny, with some studies finding less than a 10 percent success rate, yet courts routinely order AA attendance for drug- and alcohol-related offenses. While proponents suggest some faith-based remedies, like AA, are a viable form of treatment, they should not be confused with empirically researched and proven methods. If health care providers are not forthcoming with the beliefs and methods underscoring their treatments, patients are left at risk and, under H.B. 4357, with no recourse when injured.
Protecting ineffective and harmful treatments, solely because the counselor providing them does so from religious conviction, dangerously upends the balance between religious freedom and patient health and safety. This imbalance between the rights of service providers and the rights of the public they serve are just one problem inherent in religious refusal bills. Exemption requests may be based on convenience rather than conviction, yet tasking courts with assessing a religious adherent’s sincerity is intrusive and further entangles government with religion. And when government grants are not withheld from exempted organizations, taxpayer dollars essentially fund discrimination. This is the case in the second bill, S.B. 85, which permits mental healthcare providers to refuse to provide treatment, if doing so violates the provider’s beliefs, and shields them from administrative and state-imposed consequences.
Religious refusal bills rely on a free-market assumption that the people denied service may simply find an alternative — S.B. 85 protects counselors only as long as the provider refers the patient elsewhere. But such alternatives are not always feasible, especially so in the case of these bills. First, health care is starkly different from most consumer goods — denial of a wedding cake may be hurtful, but denial of treatment for mental illness can be deadly. Second, mental health care is a scarce resource to begin with. The need for mental health care is especially pronounced in the LGBTQ+ communities. LGBTQ+ adults are more than twice as likely as straight adults to experience a mental illness, and 40 percent of transgender individuals attempt suicide in their lifetime — a staggering nine times the rate of the American population. Ironically, living under discriminatory religious refusal laws like the bills at issue can cause increased mental distress for LGBTQ+ individuals.
H.B. 4357 and S.B. 85 come at a time when the need for mental health care is acute nationwide. The problem is exacerbated in large rural states. Only four counties in Texas meet a suggested population-to-psychiatrist ratio. In 95 percent of Texas counties, at least one site, and often the entire county, is designated a shortage area for mental health professionals by the federal Health Resources and Service Administration. Texas public school counselors oversee nearly double the recommended number of students. There simply are too few mental health care providers, which allows them to turn away patients because of religious beliefs, counter to medical ethics, inhibiting patient access to an already scarce, and desperately needed, resource.
Christina, 27, graduated from Washington & Lee University in 2014 with a B.A. in German and religion. She commissioned in the U.S. Army, serving tours in Korea and Germany before returning to Virginia for law school. Christina is now a third-year student at William & Mary Law School. She serves as the president of the Military & Veterans Law Society, vice president of the Women’s Law Society, and is a graduate research fellow with the Center for Legal and Court Technology. After graduation, she plans to return to the Army as a JAG officer.