Law and ethics

Washington, Texas, Arizona, Michigan weighing “conscience clause” laws

Far-reaching laws would appear to place therapists’ religious values above anti-discrimination rules.

The Washington State Capitol
The states of Washington, Texas, Arizona, and Michigan have joined a growing list of states considering so-called “conscience clause” legislation, that would allow health care providers (including therapists) to refuse to treat specific types of clients based on the therapist’s religious beliefs. Kansas governor Sam Brownback signed such bill into law in March, and a Kentucky bill was passed into law earlier this year through an override of the Governor’s veto.

While some states have designed such bills specifically for health care settings, most of the recent conscience clause bills apply to all work settings that require state licensure or other involvement of state government. They use language very similar to that of the successful Kentucky bill:

“Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A ‘burden’ shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”

As I mentioned in my earlier discussion of the Kentucky law, such language in any state would make it exceedingly difficult for marriage and family therapy graduate programs (if they receive state funding) to discipline or expel students who plainly state their intent to discriminate when providing therapy services. It would also mean that state licensure boards would have a high burden when attempting to discipline the license of a therapist who was discriminatory in their practice.

While written to protect religious freedom in broad terms, it can be argued that these laws are emerging with a more specific, if not directly spoken, purpose in mind: to allow religious business owners and health care providers to freely discriminate against gay and lesbian clients. That has certainly been a concern with the Kentucky religious freedom law. The Washington law, meanwhile, arose in response to a consumer protection lawsuit that the state’s Attorney General filed against a florist who had refused to provide flowers for a gay couple’s wedding (same-sex marriage is legal in Washington). The lawsuit argued that the florist, who cited religion in refusing to serve the couple, was illegally discriminating on the basis of sexual orientation.

The text of the proposed conscience clause legislation in Washington makes the target of the law clear once you know what the bolded language here means (emphasis added):

Nothing in this section may burden a person or religious organization’s freedom of religion including, but not limited to, the right of an individual or entity to deny services if providing those goods or services would be contrary to the individual’s or entity owner’s sincerely held religious beliefs, philosophical beliefs, or matters of conscience. This subsection does not apply to the denial of services to individuals recognized as a protected class under federal law applicable to the state as of the effective date of this section. The right to act or refuse to act in a manner motivated by a sincerely held religious belief, philosophical belief, or matter of conscience may not be burdened unless the government proves that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.

Federal law currently prohibits discrimination against a variety of protected classes. Discrimination based on race, gender, disability, or nationality is prohibited under federal law, for example. But gays and lesbians are not a protected class in federal law. So the main impact of this bill would be to allow discrimination, based on religious belief or matters of conscience, against gay and lesbian clients.

Still, the broad wording of these laws allows for much farther-reaching impact. A commentary on the Washington proposal in the (Salem, OR) Statesman-Journal suggests that it could revive religious objections to mixed-race couples. The group Americans United for Separation of Church and State describes other acts that these bills appear to legalize:

A pharmacist could refuse to provide Plan B drugs to a rape victim. The owner of an apartment building could refuse to rent to an unmarried couple.

These examples and more can be applied to therapists and their clients, with the therapist either as discriminator or victim. A therapist under these laws may refuse to treat gay and lesbian clients. In states that leave out the federal law stipulation that Washington included, that therapist may also refuse to treat Mexicans, or Mormons, or any other group they see fit to turn away. Therapists working at hospitals, in group practices, or in other settings as employees might also be discriminated against at the moral whim of their employers, who would be able to summarily fire therapists who have premarital sex (or who don’t, if the employer decides that their personal morals favor premarital sex), or who identify as gay or lesbian. Each of these would be of questionable legality even under the new laws, because of the potentially overriding impact of federal anti-discrimination law, but they would appear to be clearly illegal in most instances under current law. Bringing the legality of such acts into question — inviting lawsuits to sort out the underlying issues, and placing a high burden on the state to justify any restriction of acts of morality or conscience — seems to be the idea.

Ultimately, if these and similar laws continue to pass around the country, the non-discrimination clause in the AAMFT Code of Ethics may best be considered moot. Any therapist with moral or religious beliefs that declare some people to be unequal could freely discriminate on the basis of race, gender, nationality, or any other basis without fear of any repercussions against their license. AAMFT could still act on an ethics complaint, even removing a therapist from the association. But the therapist would never need to inform clients that the complaint had happened, and could freely continue in practice as the state could not discipline their license.

Bills similar to the ones enacted in Kansas and Kentucky, and proposed in Washington and Tennessee, are now pending in several other states:

  • In Texas, a religious-freedom act already exists in state law, but Texas Senate Joint Resolution 4 would make that law part of the state Constitution.
  • Nevada Senate Bill 192 is similarly broad and has advanced through the Senate to the state Assembly.
  • In Arizona, Senate Bill 1178 has been amended from a bill on long-term disability into a broad religious-freedom measure.
  • And in Michigan, where religious-freedom legislation proposed in response to the Julea Ward case failed last year, a broader bill on religious freedom in health care (Michigan Senate Bill 136) is making progress. Among other changes, the Michigan bill would (quoting a Senate Committee Analysis) “Prohibit an employer from penalizing a health provider and prohibit a university, college, or educational institution from refusing admission to an individual or penalizing a student or member of its faculty or staff for expressing a conscientious objection or requesting an accommodation to avoid participating in a health care service.”

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Your comments are welcome. Post in the comments section below, by email to ben[at]bencaldwell.com, or through my Twitter feed.

Eastern Michigan settles Julea Ward case

The university settled in December and will pay Ward $75,000, according to AnnArbor.com.

JudgesTools IconJulea Ward’s lawsuit against her graduate program in counseling at Eastern Michigan University took several interesting turns last year. The case started when Ward refused to counsel a gay client as part of her training; the university determined this was discrimination, and expelled Ward from the program. She sued, claiming she was being singled out for her religious beliefs. I’ve previously discussed the case here and here.

Ward’s case is often discussed in the same breath as Jennifer Keeton’s. Keeton sued Augusta State University, where she had been a graduate student in counseling, after the university expelled her for clearly stating her refusal to counsel gay and lesbian clients and her unwillingness to complete a university-mandated remediation plan.

While Keeton lost her case, Ward appeared to at least have some chance of winning hers. In a footnote within his ruling in favor of Augusta State University in the Keeton case, United States District Judge J. Randal Hall made it clear that the two cases had similar themes but very different specifics (citations removed, and paragraph breaks and emphasis added, for clarity):

This case is distinguishable. In Ward, the plaintiff, a student enrolled in Eastern Michigan University’s graduate counseling program, asked to refer a gay client during her practicum course because she claimed that her faith prevented her from affirming a client’s same-sex relationships. No remediation plan was issued; instead, the plaintiff was promptly dismissed from the program following a formal review. […] The plaintiff in Ward was disciplined after she asked to refer a client, but evidence showed that the university may not have had a policy prohibiting such referrals; indeed, there was evidence that referrals had been permitted for others in the past. […] The Sixth Circuit held that a juror could find that the plaintiff was dismissed because of her religious views.

This case presents a stark contrast: Keeton was cited by faculty for statements which evinced an intent to clearly violate program policies, i.e., according to the remediation plan, faculty believed that Keeton had expressed an interest in conversion therapy. Moreover, Keeton later stated definitively, and without mention of referral, that she would not withhold open judgment of a client’s sexual choices in a counseling session, action also in violation of program policies. One final set of facts serves to
distinguish the two cases – Keeton was not, like the plaintiff in Ward, summarily dismissed. Instead, she was subjected to a remediation plan, the details and import of which was painstakingly explained by faculty members through meetings, written plans, emails, and face-to-face discussions. […]

In sum, the patience and measure exhibited by faculty members during the course of Keeton’s protracted remediation proceedings, coupled with the nature and content of their efforts to ensure that Keeton understood how her actions violated professional ethics and could harm future clients, mark this case as different from Ward.

Eastern Michigan, apparently seeing the writing on the wall, chose to settle with Ward and has agreed to pay her $75,000. Notably, the university is neither admitting any wrongdoing nor changing any of its policies as a result of the ruling, according to AnnArbor.com. In the meantime, Michigan’s legislature debated the “Julea Ward Freedom of Conscience Act” — which would have allowed graduate students in mental health to refuse to treat gay and lesbian clients if providing treatment would conflict with the student’s religious beliefs.

I’ve written about that and a similar “conscience clause” bill that did become law in Arizona. A similar bill has now been proposed in Tennessee, which I’ll tackle in a separate post.

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Your comments are welcomed in the comments section below, by email at ben[at]bencaldwell[dot]com, or in the conversation on my Twitter feed.

California may become first state to limit “reparative therapy”

Senate Bill 1172 would stop licensed therapists from providing reparative therapy to minors. It awaits Governor Brown’s signature or veto.

California Capitol-fromSWUpdated 9/30/12 – Governor Brown signed the bill into law. It takes effect January 1, 2013.

Senate Bill 1172, a proposed California law that would prevent licensed therapists from offering so-called “reparative therapy” to minors, has passed the state Assembly and Senate and is currently on Governor Jerry Brown’s desk. The Governor has until the end of this month — less than a week away — to sign or veto the bill.

If he signs it, California would be the first state in the US to take such action. Other states are eyeing the California bill closely, with some planning to propose similar bills. Gay rights organizations are also paying close attention to the bill, and have been pushing the Governor to sign it.

“Reparative therapy,” also sometimes known as “conversion therapy” and referred to in the bill as “sexual orientation change efforts,” is a form of therapy that aims to help people distressed by same-sex attraction change those attractions and ultimately become more heterosexual. The therapy was pioneered by Dr. Joseph Nicolosi, who suggests in his original book on the topic that same-sex attractions are unhealthy.

All the major professional associations in mental health have issued statements discouraging their members from using reparative therapy, though none has gone so far as to declare the practice inherently unethical. (See statements from the AAMFT, ACA, APA, CAMFT, and NASW; there’s a nice history of associations’ stances on the topic here.) These statements typically cite the lack of research support for any therapy succeeding in altering sexual orientation, and the serious risk of harm that comes to gay and lesbian clients when a therapist tells them that their sexuality is wrong or unhealthy.

However, the therapy remains practiced by a number of mental health professionals, who offer anecdotal reports of clients who say they were helped by the approach.

While professional associations are usually loath to accept government intrusion into clinical practice, it is noteworthy that all of the major professional associations in mental health in California are now either neutral on the bill or actively supporting it. All were initially opposed, but as the language of the bill has been amended, all have dropped their opposition. Here is where the major mental health professional associations currently stand:

AAMFT-CA: Support

The American Association for Marriage and Family Therapy, California Division was (with NASW-CA) one of the first associations to move from opposition to support. (Full disclosure: I’m the current Legislative and Advocacy Committee Chair for AAMFT-CA, and I’ve worked a great deal on this bill.)

NASW-CA: Support

The National Association of Social Workers, California Division was (with AAMFT-CA) one of the first associations to move from opposition to support.

CPA (Psychologists): Support

The The California Psychological Association had initially joined three other organizations (Psychiatrists, CAMFT, and CALPCC) in jointly oposing the bill. While all four organizations have since dropped their opposition, CPA appears to be the only one of the four to move to a position of support.

CALPCC: Neutral

The California Association of Licensed Professional Clinical Counselors has dropped its opposition, though the bill is not currently mentioned anywhere on the group’s web site.

CAMFT: Neutral

The California Association of Marriage and Family Therapists has dropped its opposition to the bill. The CAMFT web site includes a relatively soft caution to its members about the use of reparative therapy (referred to here as “sexual orientation change efforts”) but otherwise does not address the bill.

CPA (Psychiatrists): Neutral

The California Psychiatric Association has officially withdrawn its opposition to the bill, citing a 1998 statement of the American Psychiatric Association which reads in part, “The American Psychiatric Association opposes any psychiatric treatment, such as ‘reparative’ or ‘conversion’ therapy, which is based upon the assumption that homosexuality per se is a mental disorder.”

Whatever your stance on the bill, both sides are suggesting you contact Governor Brown’s office directly to let him know. The Governor’s office can be reached by phone at 916-445-2841, by email here, or on Twitter at @JerryBrownGov.

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Your comments are welcome. You may post them in the comments section below, via email to ben [at] bencaldwell [dot] com, or to my Twitter feed.

Therapists targeted by spam, scams

Therapists and counselors around the country have been targeted by scams via phone, email, and postal mail. Here are warnings on three of the most common recent ones.

The pre-payment scam. In a therapy-specific variation on an old scam, a therapist receives a call from someone looking to set up therapy for themselves or a family member, telling the therapist that the client is not yet in their city but will soon be arriving (usually for work or school). The caller asks to prepay for several sessions in advance, and mails a check. Within a few days, they call back to say the “client” has had an emergency change of plans, and the money needs to be refunded immediately. Only after the therapist has issued a refund do they discover the original check has bounced.

What to do: This scam could be stopped at several points in the process. 1) Don’t accept payment for services from someone you’ve never met in person. 2) If you do accept pre-payment, do not accept pre-payment for more than one session at a time (this at least limits your potential losses). 3) You may choose to not accept check payments at all; many therapists now accept fees via credit cards, which offer much better fraud protection. 4) If you do accept checks, your bank may allow for instant electronic check processing, so you’ll know right away if a check will not be covered by the issuing bank. 5) If you accept prepayment by mailed check — and again, it’s far better not to — have a clearly written refund policy that establishes your process and timeline for issuing refunds on services paid but not received. This may be part of your cancellation policy, which is related. 6) Never issue a refund before you have actually received the funds in your account.

The counselor scam. A privately-owned company called the American Psychotherapy Association (I will not link to their site because they don’t deserve the traffic, but you can Google it if you’re really interested) has been blanketing California with brochures promising MFTs that they can become “grandparented” into being a “Board Certified Professional Counselor.” The brochure appears to be carefully crafted to mislead MFTs into thinking that the certification might equate to LPC licensure (it does not and will not), without actually saying anything that is factually untrue. The organization does offer a Counselor Certification, and California MFTs can be “grandparented” into it. At least in the sense that the requirements for that designation will change if California eventually licenses professional clinical counselors, as it may soon do.

What to do: Look, I don’t know anything about the American Psychotherapy Association (not to be confused with the far better-known APA); they do have a few folks I highly respect on their board, they put on an annual conference, and they may well be a worthwhile organization. But this is a callous marketing effort designed more to take advantage of California MFTs’ lack of knowledge about how LPC licensure might work than anything else, and it greatly tarnishes their reputation in my eyes. If you receive their mailer, throw it away.

The “men’s movement” spam. On the CAMFT listserv, there have been several posts from therapists who received an email threatening to take action against them based on their name and contact information being listed on AllAboutCounseling.com, one of many sites that host therapy-related articles, blogs, and a therapist directory. (I’m naming them because they’re a victim here, though I would caution that this site was unknown to me before researching this post.) In the email that’s been going around, the attacker — who doesn’t deserve to be named or linked to — suggests that there are dangerous and false articles on the site, and that therapists should be fearful of associating themselves with it. Having reviewed what’s actually on the site, I can’t say it’s all that good, but it’s certainly no worse than what’s on a hundred other therapy- and counseling-oriented sites. What seems to have gotten this attacker’s anger up are the articles about women and women’s issues. He claims to be part of a “men’s movement,” but a men’s movement that uses threats to get its way does a massive disservice to the term “men’s movement” and to men in general.

What to do: This is a tough one. If you’re listed on the web site (and not that many are), you can ask to have your listing removed… but should you? That would seem to be giving in to the threat. On the other hand, if you leave your listing up, this guy could make good on his threat, spewing bile onto the internet and attempting to associate you with his attacks. Yes, his actions are wrong, threatening, juvenile bullying. But some therapists understandably want to be nowhere near anything that looks like controversy. Is it a battle you want to fight? That’s a judgment call.

Generally speaking, therapists can avoid scams like these by using common sense; if a prospective client sounds too good to be true, asks you to violate your own policies or standards, or raises other red flags for you, consult with colleagues, supervisors, and your professional associations. And if you’ve been the victim of any of these scams (or any others), the worst thing to do is stay silent out of embarrassment; that only allows these scams to continue. You serve the profession and the public well by alerting others to such risks.