Are Therapists Required to Serve Every Client?

In a 2023 decision, the U.S. Supreme Court ruled in favor of an evangelical Christian web designer who argued that she should not be legally required to serve same-gender couples who request websites to be created for their marriage (Creative LLC v. Elenis, 2023). The plaintiff originally argued that a Colorado statute that prohibited discrimination on the basis of sexual orientation infringed her constitutionally protection for free expression. The 6 to 3 majority of the Supreme Court, however, found that state’s nondiscrimination statute infringed the plaintiff’s right to free speech as guaranteed by the First Amendment of the U.S. Constitution. This ruling has opened the door to many questions about whether and when any other types of service providers can refuse to serve people because they do not want to be compelled to provide certain types of speech. This post considers whether the Creative LLC case applies to mental health professionals (MHPs) who would like to refuse to serve particular clients on the basis of their sexual orientation, gender identity, religion, or other aspects of human diversity.

Applying the Creative LLC Decision to Mental Health Practice

Some legal commentators have argued that the Creative LLC decision provides individuals who operate businesses with a freedom to discriminate, particularly for work that involves speech or other forms of expression (e.g., music, art). Certainly, one of the primary methods of intervention among MHPs is speech. Whether we are providing cognitive-behavioral therapy, narrative therapy, motivational interviewing, or any other type of psychotherapy, we are using words or speech to communicate with our clients. Whether we are interacting with clients in person, through videoconferencing, or through the exchange of text messages, we are using speech. Under the First Amendment protections, some might argue, the government should not be able to tell us what to say or not to say to our clients. Free speech is a basic tenet of a free and democratic democracy. The principle of free speech allows MHPs to determine what to say and what interventions to use when helping clients.

Limits of Free Speech

The right to free speech is not an absolute right. There are many limitations on free speech in our society: People are not free to conspire to murder, they are not free to use social media to incite others to violence, and they are not free to defame others (knowingly spreading false information that hurts another person’s reputation). For MHPs, there are many limitations on free speech that relate to our professional obligations. Given our ethical duty to maintain client confidentiality, we are not free to share private client information with our friends and family (APA, 2017, s.4.01; NASW, 2021, s.1.07). When obtaining consent to services, we are not permitted to provide clients with false information; we have an obligation to provide clients with accurate and honest information (APA, s.3.10 & s. 5.02; NASW, s.1.03 & 4.04). When using a particular form of intervention with clients, we are not permitted to say things to them that amount to incompetent or discriminatory practice (APA, s.2.01 & s.3.01; NASW, s.1.04 & 4.02). So, are we permitted to refuse to serve clients who are LGBTQ+, clients who engage in extramarital sexual relations, clients who practice a religion that we do not ascribe to, or clients who engage in any behavior or affiliation with which we have a sincere religious or moral objection? Further, does free speech permit us to refuse to provide gender-affirming care to transgender clients (APA, 2015; HRC, n.d.), harm reduction counseling to clients with substance use disorders, or family mediation to clients who want to divorce?

Law vs. Ethics

The intersection of free speech and the ethical responsibilities of MHPs continues to be a topic of debate within the mental health and legal communities. Litigation and political debate over these issues are likely to continue. As MHPs, we believe in the rights of clients to free speech, to access to services, and to freedom from discrimination. How we should conduct ourselves in our professional (work) lives is different from how we may conduct ourselves in our personal lives. In your personal life, you are free to befriend or not befriend anyone that you wish. If you choose not to befriend someone because of their race, gender, religion, sexual orientation, or political affiliation, that is your personal decision and prerogative. In your work-life as an MHP, your code of ethics suggests that services to all people should be provided in a nondiscriminatory manner. In our work, the principle of fidelity suggests that our primary commitment is to our clients. Given the duty of fidelity, there are times when we need to prioritize our clients’ needs over our own wishes and beliefs (APA, Principle B; NASW, 1.01).

Some MHPs believe that they can simply refer out clients that they do not wish to work with. Although referring clients may be an option to consider, it is important to also consider the impact of refusing to serve particular clients on the basis of their gender, religion, and so on. Rejecting clients shows disrespect. It also violates the principle of equal access to services (Creative LLC v. Elenis, 2023, Sotamayor, in dissent). For clients with a history of trauma and discrimination, it may already be difficult to reach out for help from MHPs. When such clients are rejected by a particular MHP, they may be less likely to reach out to other MHPs in the future, fearing further rejection.

Conscience Clauses

“Conscience clauses” in laws, agency policies, or ethical codes provide professionals with a right to refuse to provide clients with particular services based on moral or religious grounds (Clay, 2013). Thus, a pharmacist whose religious beliefs conflict with abortion may be excused from providing medication to facilitate an abortion. In states or countries that allow for medical assistance in dying, medical professionals are not required to provide assistance in dying if they have conflicting moral or religious beliefs.

In the case of Ward v. Polite (2012), a graduate student in counseling refused to provide services to provide counseling to a gay client as part of her required practicum for her course of studies. Given her religious beliefs about homosexuality, she believed she should be excused from serving this client. The student suggested referring the client to another counselor. The university program expelled her from the program because she refused to serve gay clients, contrary to the ethics of serving clients without discrimination. The court found that the university violated the student’s freedom of religion. Part of the ruling was based on the finding that the university program did not have a policy about “not referring clients” on the basis of their religious beliefs or moral conscience. The majority also found that the profession’s code of ethics did not prohibit referring clients.

Given the findings in Ward v. Polite, it is important for MHP associations and educational programs to provide clear guidance in their codes and policies on whether and when it is ethical to refer clients on the basis of religious or moral objections (APA, 2013). If MHPs can simply say that they will refer out clients who are Black, gay, Latino, Muslim, atheist, and so on given their religious or moral convictions, then MHPs would essentially be free to discriminate.

The Path Forward

The principles of beneficence (doing good), nonmaleficence (avoid doing harm), justice (being fair), and autonomy (respecting client freedom) are essential guidelines for various forms of health and mental health practice (Beauchamp, & Childress, 2019). As MHPs, we should be at the forefront of ensuring that clients have equal access to services and freedom from discrimination within services (APA, General Principles; NASW, Ethical Principles). We need educational programs that ensure MHPs are prepared to work with clients from various backgrounds and with various social identities, even if they have moral or religious concerns (APA, 2013). We need supervision and professional consultation to help MHPs with potential struggles between their professional, religious/spiritual, and personal/moral beliefs and duties (Barsky, 2023). We need frank discussions about the best way to ensure that all people have access to the mental health care that they may need and desire. And we need laws, agency policies, and professional practice procedures to support accessible, competent, and ethical mental health services for all.

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The phrase “Let them eat cake” is attributed to Marie Antoinette, the last queen of France. Although there is no reliable record that indicates she actually said these words, she is often credited with saying them in response to hearing that her peasant subjects were starving and had no bread (Cunningham, n.d.). Since cake is more expensive than bread, this expression is used convey the disdain or disrespect that a person of privilege has for people who lack such privilege. As MHPs, we must not have a “let them eat cake” attitude with people who identify with particular diversity groups or engage in particular behaviors that conflict with our personal, moral, or religious beliefs. Rather, we should treat them with the dignity and respect that all people deserve.

Note: The material in this article is for general information only. For current legal information or advice particular to your situation, please consult with an attorney in your jurisdiction.