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Psychotherapist challenges NYC's censorship of private conversations with adult patients

ADF represents Orthodox Jewish counselor opposing city’s speech ban

Thursday, Jan 24, 2019
NEW YORK – An Orthodox Jewish psychotherapist filed a federal lawsuit Wednesday against the city of New York for violating his freedom of speech and infringing on his religious faith and that of his patients. Dr. Dovid Schwartz, a licensed psychotherapist and member of the Chabad Lubavitch Orthodox Jewish Community in Brooklyn, is challenging the city’s new ordinance that prohibits certain patient-counselor conversations that the New York City Council disfavors.

In 2018, the city council adopted a law making it illegal for any person to provide services for a fee that “seek to change a person’s sexual orientation or seek to change a person’s gender identity to conform to the sex of such individual that was recorded at birth.” Notably, the law only prohibits counsel in one direction—assisting a patient who desires to reduce same-sex attraction or achieve comfort in a gender identity that matches her or his physical body. The law threatens increasing fines of $1,000, $5,000, or $10,000 for first, second, and subsequent violations. By contrast, counseling that steers a patient towards a gender identity different than his or her physical body is permitted. Unlike other existing counseling censorship laws, it is unprecedented in its reach—extending to the counseling of willing adult patients.

“All Americans, secular and religious, deserve the right to private conversations, free from government censorship,” said Alliance Defending Freedom Senior Counsel Roger Brooks. “It is difficult to imagine a more direct violation of freedom of speech protected by the First Amendment than New York City’s attempt to regulate the private sessions between an adult and his counselor. The city council’s regulation is unprecedented and threatens to stand between Dr. Schwartz’s patients and the lives they choose to pursue. As the U.S. Supreme Court noted in its 2018 NIFLA decision, ‘[T]he people lose when the government is the one dictating which ideas should prevail.’”

In the course of his wide general practice, Schwartz regularly encounters and serves patients who want his help overcoming same-sex attraction. Because of their religious beliefs and personal life goals, clients who seek his counsel often desire to experience opposite-sex attraction so they can marry, form a natural family, and live consistently with their Orthodox Jewish faith. A number of patients have pursued and achieved those goals with the aid of his psychotherapeutic services. Schwartz uses no techniques in working with his patients other than listening and talking—yet the law claims to forbid even that.

“Nearly all of Dr. Schwartz’s patients share his faith, and they value his counsel about issues of sexuality and family in part because his perspective is grounded in their shared Jewish faith and respect for Torah teachings,” said ADF Legal Counsel Jeana Hallock. “The government has no right to dictate the personal goals an adult pursues with his or her therapist. If, for example, a woman’s life goal includes marrying a husband and starting a family, and she seeks input from a counselor who shares her beliefs, the government simply has no business monitoring these conversations or interfering with these goals, regardless of the city council’s views about them. The counselor-patient relationship is a sensitive one, privileged under state and federal law, and the city council seriously oversteps its role when it tries to control those conversations, or imposes government views on patients or therapists.”

The lawsuit, Schwartz v. City of New York, asks the court to protect Schwartz from being forced to choose between risking severe financial penalties or self-censoring his conversation with patients in a manner that denies them the assistance they desire.
  • Pronunciation guide: Dovid (DAH’-vid)

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.
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