How this year’s religious freedom bills would impact therapists

Golden gavel 1, By walknboston (Flickr: Gavel) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsSeveral states are considering religious freedom bills that would directly impact therapist training and licensure, and clients’ ability to access appropriate mental health care.

As has been the trend for several years now, these bills — also commonly referred to as “conscience clause” legislation — are being framed as protection of the rights of religious people to act in accordance with their moral or religious beliefs, free from government interference. The bills tend to be broadly written, though there have been at least a few instances of bills being written specifically to apply to mental health (including one this year — see discussion of Tennessee below).

While the actual impact of these proposals — many of which use similar or even identical language, and many of which bear the title “Religious Freedom Restoration Act” — is debatable, both supporters and opponents agree that if the bills became law, they would allow religious business owners to refuse to serve gay and lesbian clients. (They also would allow a broad range of other discrimination, as therapists argued when opposing a Tennessee proposal in 2013.) Whether such treatment refusals are discriminatory, and thus illegal, has become something of a flashpoint in US culture generally, and in the psychotherapy world specifically.

Since our focus here is on psychotherapy, it’s worth considering how these proposed 2016 bills would impact our work:

Therapist training

Regular readers of the blog might rightly think I’ve talked this issue to death, but two counselors sued their universities when the universities expelled them for discrimination after the students expressed that they would not treat gay and lesbian clients. (One student actually had refused a client, the other simply said that she would not treat clients who identify as LGBT.) One impact of these bills on state-funded graduate training programs is that it would become much harder for the training program to take any action against a student who states a religiously-based intent to discriminate, or who actually does discriminate in their work.

Therapist discipline

What if the therapist refusing to treat a gay, lesbian, or transgender client is not a student but a licensed professional? In these cases, the therapist is subject to discipline from the ethics committee of their professional association, and also from their state licensure board. Another impact of the proposed religious freedom bills is that it would become much more difficult for licensure boards to discipline therapists for discriminatory behavior (or, for that matter, for any form of unprofessional behavior, if the therapist could link it to a moral or religious belief of theirs). Not only would the licensure board need to prove that the unprofessional action occurred and that it was discriminatory, but they would have to go to court to prove that action against a therapist’s license satisfies the religious freedom bills’ common requirement that government action be the least restrictive means possible of achieving its public-protection ends. That could tie up disciplinary actions in the court system for years. Or, as seems more likely, it would lead licensure boards to stop pursuing discrimination complaints altogether.

Client access to care

Of course, when religious therapists are empowered by law to discriminate as they see fit, and when licensing boards have their power to discipline such actions largely scaled back, the ultimate outcome is that more therapists will choose to turn away gay and lesbian clients rather than developing the competency needed to effectively work with them. That’s a particular problem in rural areas where mental health providers are few, and for non-English speakers whose choices of competent providers may be very limited even in a large city. Simply put, client access to competent care would suffer under these laws. And it would suffer most for clients who already face the greatest struggles in finding quality mental health care.

Here are some of the states currently considering new religious freedom laws:

West Virginia

The discussion of West Virginia’s proposed RFRA has focused broadly on the balance between religion and protection for minority rights, with little discussion of the impact specifically on therapists. However, the bill has been labeled as extreme even relative to other RFRA bills. It not only would allow businesses (including therapists) to discriminate against LGBT consumers based on religious belief, but could theoretically be used to justify almost any violation of law based on religious belief.

Georgia

Georgia’s proposed RFRA uses standard language for such bills, and allows anyone who feels their ability to act in accordance with their religious beliefs has been hindered to sue the government. There are multiple publicly-funded, accredited graduate programs in Georgia for the psychotherapy professions, meaning there would be a particularly strong impact on therapist training there should the bill pass.

Kentucky

Kentucky previously passed a RFRA in 2013, and this year is pursuing a more specific bill related to voluntary expression of religious viewpoints in educational settings. It is not clear how the protections provided in this bill would impact a university’s ability to discipline students for stating a religion-based intent to discriminate against clients who identify as LGBT, as members of other religions, or as members of other protected classes.

Virginia

Virginia also has a general religious freedom bill already on the books. This year’s proposed bill is squarely focused on allowing anti-LGBT discrimination, as it would prevent government from taking disciplinary action against someone who “believes, speaks, or acts in accordance with a sincerely held religious belief that marriage is or should be recognized as the union of one man and one woman and that the terms ‘man’ and ‘woman’ refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics of the individual at the time of birth.” The Virginia legislature has joined this bill with one that seeks to protect clergy from being forced to carry out same-sex weddings in violation of their religious belief.

Tennessee

Unlike the bills discussed above, Tennessee’s legislature has been considering a bill specific to mental health care. It states that counselors and therapists cannot be required to treat anyone who has “goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist” as long as a referral is provided to another professional who will provide treatment. Such refusals could not be used as grounds for criminal or civil legal action, or any disciplinary action against a therapist’s or counselor’s license. The American Counseling Association has expressed strong opposition, noting that the bill seems to be at least in part a defiant response to the non-discrimination and values-based clauses in the 2014 ACA Code of Ethics. But that opposition didn’t stop the bill from sailing through committee and then through a state Senate floor vote last week.

Seeing a trend? It appears to be primarily southern states pursuing these laws so far in 2016. But it would be a mistake to see this as a southern issue; it is very much part of a larger national strategy among religious and conservative policymakers. Religious freedom laws already allow discrimination against people who identify as gay and lesbian in much of the country, and many of these laws also allow a wide range of other religion-based discrimination.

These bills understandably strike fear into many therapists (and educators, supervisors, and prospective clients) for the reasons noted above. The depth of their impact on therapists and therapy training is¬†hard to know in the absence of meaningful test cases in court. (A 2010¬†review found that those who use RFRA laws to assert their religion as a defense in court lose more often than they win.) Even so, the symbolic value of these laws may be enough to scare universities, supervisors, and licensing boards out of acting against therapists who discriminate — or who say they intend to — based on their religious belief.