A California law mandating ‘implicit bias’ training for medical professionals violates the First Amendment

When most people talk about free speech violations, they mean censorship—the prohibition of certain speech. And while that’s certainly the version that gets more attention in the media, there’s another kind of free speech violation that is possibly even more insidious: the compelling of certain speech.

Dr. Azadeh Khatibi is an ophthalmologist in California, but she was born in Iran around the time the Revolution and spent the first six years of her life living in an oppressive, authoritarian theocracy. She was young when her family left Tehran for the United States, but Dr. Khatibi—whose first name means “freedom”—still remembers what it was like to have the government dictate what she was and was not allowed to say.

And what is happening in her home state of California has her deeply concerned.

California’s obsession with ‘implicit bias’

As a medical doctor, Dr. Khatibi—along with every other doctor in California—is required to complete 50 hours of continuing medical education (CME) classes every two years in order to keep her license to practice medicine. But in 2019, California legislators passed AB 241, which mandates that all CME courses that involve direct patient care, regardless of who is teaching it or what specifically it is about, must include implicit bias training.

“Implicit bias” is the idea that medical professionals unconsciously treat patients differently based on their race or other immutable characteristics. The State of California has gone forward with the legal requirement for such training in medicine, regardless of the fact that the research supporting the existence of implicit bias is mixed. Worse, other evidence shows that improper implicit bias training can backfire, causing anger, frustration, and resentment among those taking the training.

In practice, this law means that instead of being trained to treat each patient as a unique individual with specific healthcare needs and goals, doctors are being told they must actively think about a patient’s race, ethnicity, gender, sexual orientation, and other fixed characteristic types that may or may not have anything to do with what they are being treated for. It encourages doctors to think of their patients as members of identity groups instead of as individuals.

Further, CME instructors are being compelled by California in violation of their First Amendment rights.

Dr. Khatibi has organized and taught CME courses for many years in medicine, including ophthalmology. She also has a passion for teaching the public and her patients about wellness and the needs of highly gifted and sensitive people.

Now, regardless of its relevance in her CME courses, she must replace some of her instruction with a discussion of implicit bias.

While the requirement for implicit bias training may not seem like much cause for alarm for many, for Dr. Khatibi, it’s a serious issue. She’s seen this sort of behavior before.

Trading one state of oppression for another

“I kind of grew up with that,” she says, referring to a climate of repression, restrictions, and requirements regarding behavior and speech. “It really messes up your psyche as an individual, depending especially on if you’re a more sensitive person. And then also collectively, the psyche of the collective consciousness gets sick and people are always worried, shutting, closing the windows before they have people over, that sort of thing. …So you grow up with almost like this duality of being where you’re one way and then another. That’s a very unhealthy way to grow up.”

She went on to describe the state of education in Iran at the time her family immigrated. “At that point, [the Iranian government] had closed the universities down for three years to revise the textbooks and make sure people were learning what was deemed ‘correct’ to learn.”

In addition to the first-hand knowledge of how authoritarian governments can alter institutions and individuals through compelled learning, the implicit bias training requirement for all CME courses touching on direct patient care is simply not the best use of doctors’ precious time, both as CME students and teachers.

“You have X amount of time,” Dr. Khatibi says, talking about CME classes. “You have to mention implicit bias. Then that means that you don’t have time to talk about other things that you think are even more important. That’s number one. You’re actually changing the narrative of medicine by changing the narrative of medical education by not saying what you would’ve taught because you actually are now forced by law to teach something else. If you carry it back, the trajectory of medical education gets changed because the person is talking about X instead of talking about Y, and it would’ve benefited society if you actually talked about Y instead of X.”

The tradeoffs of compelled speech are inescapable. If a teacher is legally required to include instruction on a topic that is not directly related to the subject of their class, it means less time can be devoted to what students actually need to learn.

In regard to the passage of AB 241, Dr. Khatibi says, “I think it’s well-meaning, but it’s completely unconstitutional.”

Requiring this training forces instructors to espouse views they may find unpersuasive and unsupported by evidence. Not only is this sort of behavior on the part of the government a violation of the First Amendment and detrimental to patient care, it also sets everyone on the very real and perilous path to ever-expanding authoritarianism. As Dr. Khatibi says, “I saw that in Iran, and I saw if you do it even a little bit, even that little bit is dangerous.”

Pacific Legal Foundation is helping Dr. Khatibi fight back with a federal lawsuit to stop California from controlling speech—just like the Iranian government of her childhood used to do.

Nor is this her first legal battle with the State of California regarding what medical doctors can and cannot say in their practices and trainings. She has also taken part in a separate lawsuit to challenge California’s AB 2098, which jeopardizes a doctor’s medical license if they practice in a way that is contrary to the “consensus contract standard of care”—as determined by the state, of course.

Dr. Khatibi is joined in the lawsuit challenging AB 241 by Dr. Marilyn Singleton, a California anesthesiologist, and Do No Harm, a national medical advocacy organization. Dr. Singleton teaches continuing medical education courses in California and wrote in The Washington Post that the implicit bias requirement spreads the “malignant false assumption that white people are inherently racist.”

Do No Harm embraces the principles of freedom and has previously filed complaints with the Office of Civil Rights and a federal lawsuit against Pfizer’s race-based fellowships. Its members, including Dr. Singleton, have given continuing education courses in the past and wish to do so in the future without being compelled to promote implicit bias.

The doctor-patient relationship is sacrosanct. Neither doctors nor patients need California

legislators to tell them what they should be thinking about or what advice practitioners should be giving when treating their patients. And Dr. Khatibi is living up to her name by taking a stand against the unconstitutional meddling of the State of California.