Republicans on the Joint Committee for Review of Administrative Rules blocked the Evers administration’s ban on conversion therapy, arguing the administration overstepped its authority.
The Joint Committee for Review of Administrative Rules Thursday voted 6-4 along party lines to prevent the Marriage and Family Therapy, Professional Counseling, and Social Work Examining Board from promulgating a rule barring the practice. The rule seeks to declare employing or promoting a treatment that attempts to change a person’s sexual orientation or gender identity constitutes unprofessional conduct.
The move comes after the GOP-controlled Legislature previously blocked the Evers administration’s attempts to ban conversion therapy. That effort expired last year, and the administration moved last month to put the policy back in place.
Sen. Chris Larson blasted GOP members for allowing what he called torture.
“This may not feel like legislating to you,” the Milwaukee Dem said. “But it is a very roundabout way of allowing and legalizing — accepting — torture through what they call conversion therapy; conversion torture, whatever you want to call it.”
Co-chair Rep. Adam Neylon, R-Pewaukee, said JCRAR was only trying to determine if the Evers administration’s proposal went beyond its scope of powers. He also said Larson was mischaracterizing the rule because the rule change does not include any provisions that mention age.
“So it could be, you know, theoretically somebody that is an adult that voluntarily chooses to go through this type of therapy,” Neylon said. “So it’s not specific to children within this code.”
Sen. Kelda Roys, D-Madison, questioned why a Legislature that does not have a single member who is also a social worker should be regulating the profession’s rules.
“So if there are none,” she said. “Doesn’t that lend credence to the idea that it is really the Legislature is not competent to decide what is professional conduct in a particular regulated industry?”
Co-chair Sen. Steve Nass, R-Whitewater, argued JCRAR regulates many other industries despite its members’ lack of experience in those fields.
“I just want to mention I’m not a therapist,” he said. “I’m not a builder. I’m not a plumber. I don’t run a recycling business. Yet, we legislators deal with all of those. In fact, today — I’m not a farmer, but — we’re going to be voting on cover crops in this committee. Swimming pools and short-term rentals, we’re going to be dealing with that today; we’re going to vote on that.”
The Wisconsin Institute for Law Liberty’s Anthony LoCoco argued the rule violates the right to free speech as well as the state’s constitutional guarantee to religious freedom, and it was arbitrary and capricious.
“Counselors are going to face the nightmare and trying to apply this rule in an infinite number of factual contexts involving concepts on which there is little universal agreement,” he said. “The result of course, given that licenses are at stake, will be self-censorship. And for some pushing these types of rules, that’s the point.”
National Association of Social Workers Executive Director Marc Herstand at the hearing said conversion therapy is “an extremely harmful practice that causes major mental health and suicidal ideology among young people and people who receive this therapy.”
He also argued the rule wouldn’t be considered arbitrary and capricious by a court.
“First of all, given the documented harm that conversion therapy causes LGBTQ youth and its condemnation from every major health and mental and medical organization which I’ve mentioned, no one can say that this proposal is irrational,” he said. “No one can also say that unconsidered, which is necessary, if you’re going to define something as arbitrary and capricious.”
When Rep. Sue Conley, D-Janesville, asked Neylon how this specific rule was arbitrary and capricious, he said the belief of those in favor of suspending the rule is that it falls outside legislative intent.
“So I mean, you know, that’s part of this whole hearing has been discussing our objections towards it,” he said. “I think people have been clear about where they’re coming from. So I’m not sure what else to add.”
“Clearly,” Conley responded. “Thank you.”