Legal experts: Kentucky ban on counseling that doesn’t affirm kids’ gender identity is unconstitutional, could put foster kids at risk

A month after Kentucky’s governor signed an executive order to ban “conversion therapy,” neither he nor the state’s family services agency has answered how the order may affect fostering and adoption.

The order prohibits the Cabinet for Health and Family Services (CHFS) from using state or federal funds on therapy or counseling that seeks to change or does not support a minor’s gender identity or sexual orientation.

“‘Conversion therapy’ means any practice, treatment, or intervention that seeks or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender,” Gov. Andy Beshear’s order reads.

The Lion contacted multiple state officials for clarification over a two-week period. Despite confirmations of messages received or forwarded, no comments have been provided. 

Specifically, The Lion asked Veronica Sears, the manager for the Adoption Services Branch of CHFS how her “branch expects the order to affect fostering and adoption within the state,” including whether foster or adoptive parents might face scrutiny for religious beliefs that contradict the governor’s views of sex and gender.

“I have forwarded your request through the appropriate channels. You should hear from someone soon,” Sears replied on Sept. 26. Follow-ups with two other officials cc’d in her reply did not yield a response. 

The Lion also sought clarification from the governor’s communications director, Crystal Staley, and the director of the Division of Protection and Permanency at CHFS, Melanie Taylor, neither of whom responded. 

But two legal groups specializing in first amendment cases, including cases involving “conversion therapy” did respond, and both agree the governor’s order is unconstitutional. 

First Liberty Institute, which successfully sued Beshear over the governor’s COVID restrictions on churches gathering during the pandemic, tells The Lion it is currently considering the possibility of legal action. 

“Governor Beshear makes a habit of violating the constitution and losing religious liberty cases in federal court, like when we defeated his Covid restrictions on churches,” Executive General Counsel Hiram Sasser said. “We are looking at his order and making our plans.” 

A similar ban in Michigan has given rise to a lawsuit filed by the Becket Fund for Religious Liberty on behalf of Catholic counselors who may be prevented from talking to children about “underlying causes of their gender confusion,” and may be required to “assist children with a ‘gender transition.’” 

Similar laws have been passed – and legally challenged – in other states, according to Adèle Keim, senior counsel at Becket. 

“Governor Beshear’s executive order is a re-tread of laws passed in California and Washington State,” Keim told The Lion. “These misguided laws outlaw the kind of supportive, nonjudgmental therapy that international experts agree is the best way to help children struggling with gender dysphoria. 

“The Supreme Court has already said that states can’t control what clients and their counselors talk about in therapy, and other states that have passed these bans have found themselves bound up in court for years.” 

Children in Kentucky’s foster care system may be at particular risk, as state funds provide crucial counseling to those minors and the families that care for them. 

“Under Governor Beshear’s order, kids in foster care could be cut off from trusted counselors and families that depend on K-CHIP could lose their ability to help their kids navigate sensitive issues surrounding sex, sexuality and gender identity in a way that reflects their faith,” Keim said. “Will Kentucky foster parents be punished if they provide their foster kids with therapy that reflects their faith? These are questions Kentucky needs to answer.” 

David Walls, executive director of Kentucky’s Family Foundation, sees the ban as an attack on Christians in particular. 

“This order, like previous failed legislative efforts, is designed to promote false LGBTQ ideologies and muzzle Christian counselors, therapists and pastors from helping children struggling with sexual orientation or gender identity confusion,” Walls said, according to the AP. 

Other experts take issue with how Beshear’s order could usurp parental rights and even the rights of minors who want the kind of therapy the governor is prohibiting. 

“When did it become OK for the governor to interfere with the rights of parents to seek counsel to help their children onto a better path in life that they believe leads to flourishing?” Commonwealth Policy Center’s Richard Nelson asked in a media briefing. “And for the minors struggling with their sexual identity and who desire to change, why would the governor shut the door on them?” 

While one Republican state lawmaker appeared to support the order, Rep. Josh Calloway, R-District 10, said Beshear usurped the authority that belongs to the Legislature, which reconvenes in January, according to the AP. 

“We are the lawmaking body, and laws should be made by people’s representatives,” Calloway said. 

“Conversion therapy” bans have become popular in progressive states and cities in the past decade or so, led by California and New Jersey where state statutes went into effect in 2013. Progressive opposition to the counseling, typically practiced by Christians, claims it is abusive and lacks medical support. 

According to one pro-LGBT group, 23 states and the District of Columbia have restrictions on the practice. But court-issued injunctions in Florida, Alabama and Georgia currently prevent the enforcement of such bans, and Indiana has outlawed the bans altogether.