legislative

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

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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.

Kentucky passes, and Tennessee considers, “conscience clause” legislation

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Bills would allow religious therapists to refuse treatment to gay and lesbian clients.
                                                                                                                                                                                                                                                                                                           

Kentucky state capitol buildingIt has been a big week for court cases on the rights of gays and lesbians, with California’s Proposition 8 and the federal Defense of Marriage Act both debated at the US Supreme Court. In the mental health world, over the past few months, Eastern Michigan University settled the Julea Ward case without admitting wrongdoing, the “Julea Ward Freedom of Conscience Act” languished in the Michigan legislature, and Jennifer Keeton lost her discrimination case against Augusta State. At a glance, it appears that gay and lesbian clients are making progress toward equality under the law and protection from discrimination in mental health care.

Kentucky and Tennessee, however, appear to be going in a different direction. Both states have moved to protect those therapists who would choose not to treat gay and lesbian clients based on the therapist’s religious beliefs.

Kentucky

In Kentucky, the state legislature has enacted a broadly-worded law to protect religious belief, even overriding the Governor’s veto to do so. The entirety of the new state law:

“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.”

While the law is broad, it seems to me that it would clearly apply to a future case similar to Ward’s or Keeton’s; a student therapist refusing to treat gay and lesbian clients (in the language of the law, “refus[ing] to act”) based on a sincerely held religious belief could not be removed from their university (“exclusion from programs”) or even disciplined in any way (“assessing penalties”). Yes, the “unless” clause creates a possible exception, but it also creates a very high bar for that exception. And although the bill applies specifically to government, the state’s major family therapy programs — at Kentucky, Western Kentucky, and Louisville — are all housed in public (state-government-funded) institutions, so courts would be likely to apply the new law to any actions taken by these programs.

It is also notable that the Kentucky bill is so broad that it would apply in any setting, not just universities, so licensed therapists working in public mental health settings also appear to be granted the freedom to discriminate in client care based on their religious beliefs, without fear of repercussions.

Tennessee

Tennessee, meanwhile, is considering a much more specific bill modeled after last year’s unsuccessful effort at conscience clause legislation in Michigan. The Tennessee bill, which would allow students in counseling, psychology, or social work programs to refuse to treat clients based on the student’s religious beliefs so long as they refer to a therapist willing to serve the clients, has moved forward in the state legislature despite objections from psychology faculty at the University of Tennessee. Those faculty members argued that the bill would allow

“a Hindu, opposed to killing animals, refusing to counsel a hunter; a Christian refusing to provide counseling to a Jew; [and] a student who opposes alcohol consumption refusing to counsel someone with a drinking problem.”

The professors went on to argue that, by allowing therapists to make the kinds of choices described above, the bill would force educational programs to allow their students to violate professional codes of ethics. This, they argue, would threaten the programs’ accreditation status. (As I’ve mentioned before, accreditation has been a handy cudgel for those on both sides of the debate.)

The bill (SB514) has passed the Tennessee Senate and is currently awaiting hearing in the state House of Representatives.

Other states

There seems to be some confusion (especially in the Tennessee legislature) about whether the Michigan bill (HB5040 and SB518, in 2011) passed; as best as I can tell, it never made it out of that state’s Senate Education Committee. A similar Arizona bill, however, was successful, so these proposals seem to be batting about .500 so far.

As I have said previously, the underlying issues are complex. It is of course true that every mental health profession’s code of ethics prohibits discrimination on the basis of sexual orientation. But many of those same codes also require therapists to place the client’s values above their own — and to make referrals when the therapist is unable to do that, or if the therapist is unable, for any reason, to provide competent treatment. Religious therapists who have strong beliefs against homosexuality are placed in the difficult position of balancing the ethical requirement that they not discriminate with the ethical requirement that they provide competent services, without letting their own values interfere. What seems to be clear is that if mental health professional groups cannot better clarify these issues on their own, some state legislatures are quite willing do it for them.

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Your comments are welcome. Add to the discussion in the comments below, by email to ben[at]bencaldwell.com, or — if you are better at brevity than I am — through my Twitter feed.

Eastern Michigan settles Julea Ward case

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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.

As landmark California law heads to court, few support reparative therapy for minors

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SB1172 would prevent licensed therapists from trying to change the sexual orientation of minors.                                                                                                                                                                                                                                                                                                            

JudgesTools IconTwo lawsuits (Pickup v Brown and Welch v Brown) have sought to stop the implementation of SB1172, California’s landmark bill passed last year that outlaws the practice of reparative therapy on minors. Though one of these suits did lead to an injunction preventing 1172 from taking effect until the legal challenges could be sorted out, things aren’t looking good for those who would like it to remain legal for licensed therapists to try to turn gay kids straight.

Here is a list of all those who have filed amicus (“friend of the court”) briefs in support of SB1172, as of the February 10 listing on the federal appeals court’s web page for this case. I’ve put the major professional mental health associations in bold. (Full disclosure: I’m on the AAMFT-CA Board of Directors, and represented the organization in a lot of work on SB1172 and the brief onto which AAMFT-CA signed.)

American Association for Marriage and Family Therapy – California Division
American Civil Liberties Union of Northern California
Rt. Rev. Marc Handley Andrus, Episcopal Bishop of California
California Council of Churches
California Faith for Equality
California Network of Metropolitan Community Churches
California Psychological Association
Children’s Law Center of California
City and County of San Francisco
Dependency Legal Group of San Diego
Dr. Jack Drescher
East Bay Children’s Law Offices
Equality California
First Amendment Scholars
Gaylesta
Health Law Scholars
Justice and Witness Ministries
The LGBTQ-Affirmative Therapist Guild of Utah
Legal Advocates for Children and Youth
Legal Services for Children
Los Angeles Gay & Lesbian Center
Los Angeles Youth Network
National Association of Social Workers
National Association of Social Workers – California Chapter
Parents, Family and Friends of Lesbians and Gays
Public Counsel
St. Paul’s Foundation for International Reconciliation
Survivors of Sexual Orientation Change Efforts
The Trevor Project
Truth Wins Out
Unitarian Universalist Legislative Ministry California
United Church of Christ

Quite a list, eh? Lawyers, scholars, local government, mental health professionals, churches, and advocacy groups, all on the same side. And here is a list of all those who have filed amicus briefs in support of using therapy to try to turn gay kids straight, and asking that the law be struck down:

National Legal Foundation

While the points of emphasis are a bit different from one brief to the next, those briefs in support of SB1172 make a number of compelling arguments. The restriction on reparative therapy isn’t unique, as California already restricts a variety of health care practices; the legislature made a well-informed decision in rejecting the practice of reparative therapy among minors; reparative therapists can’t claim free speech as a defense here, since many professional restrictions are by their nature restrictions on speech (like the rules requiring therapists to maintain confidentiality for their clients); and on and on. Basically every argument made by those who support reparative therapy gets demolished. They’re interesting reading, and a good preview of the legal arguments on both sides.

The two cases will be heard together in April at the US Ninth Circuit Court of Appeals. Obviously, the number of groups on either side of the issue will not decide the case, but the level of consensus here at least says something about just how far on the fringes reparative therapy has become.

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Your comments are welcome, either in the comments below, via email to ben[at]bencaldwell[dot]com, or to my Twitter feed.

California’s ludicrous new elder abuse reporting law

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California law has changed dramatically for mandated reporters of suspected elder or dependent adult abuse. The good news: The changes only impact some instances of abuse. The bad news: The law is a needlessly complex mess.                                                                                                                                                                                                                                                                                                            

Elderly couple with ear muffsWhile the California legislative process often works quite well — witness the passage of SB1172 — a pair of other bills that got far less attention this year will also impact the practices of MFTs, LCSWs, and LPCCs (and all psychotherapists) in the state.

California’s requirements for mandated reporting of elder and dependent adult abuse have changed significantly. These changes have already taken effect, because one of the bills putting the changes into place was marked as emergency legislation. The new law replaces what had been a single standard for when and to whom reports are sent with five different standards based on the specifics of the situation — specifics that, under the law, mandated reporters are not required to investigate.

“Wait, what?” is a fully appropriate response here.

Assembly Bill 40 began in 2011 as a response to an information-sharing problem. When elder or dependent adult abuse takes place in a long-term care facility (such as a nursing home), mandated reporters could report to either law enforcement or the county ombudsperson (a sort of resident advocate for those in long-term care). However, there were problems with information-sharing between ombudspersons and law enforcement, so AB40 initially would have required mandated reporters to send their written reports of suspected abuse to both.

It was a dumb and expensive way to solve the information-sharing problem, forcing therapists to take the time to make duplicate reports rather than just fixing the information flow between ombudspersons and law enforcement. Some of California’s mental health professionals jumped in to oppose the measure.

But it moved forward anyway, with the support of ombudspersons and law enforcement organizations. AB40 was amended many times through its journey through the legislature, and many of the same changes were proposed in Senate Bill 1051. Where the process ended is this:

As of today (because SB1051 was marked emergency legislation, it took effect September 27, 2012, immediately upon the Governor’s signature), mandated telephone reports of suspected elder or dependent adult abuse in California must be made “immediately or as soon as practicably possible” in some cases, “immediately, and no later than within two hours” in others, and within 24 hours in others. Written reports must be sent to various combinations of law enforcement, adult protective services, county ombudspersons, and facilities’ licensing agencies — requiring triplicate reporting in some instances. Filing reports via Internet appears to be allowed in some instances and not others. And the acceptable time frames for written reports will now vary as well, from 2 hours to two working days. These combinations are based on:

  • Whether the abuse took place in a long-term care facility
  • Whether the abuse was physical abuse
  • Whether the abuse resulted in serious bodily injury
  • Whether the abuse was caused by a resident with a physician’s diagnosis of dementia

For the problems that existed with the old standard, at least mandated reporters could be reasonably expected to know who they needed to report to, and when. The new standards are simply too complex to be held in memory, and will likely result in many reports being sent to the wrong places at the wrong times.

It’s bad law.

But it is currently the law of California. So mandated reporters will need to be able to determine where their reports should go and when.

I’ve put together a flowchart of reporting timelines and report recipients; a thumbnail appears below, and the full-size, non-pixelated version is part of my ebook, Basics of California Law for LMFTs, LPCCs, and LCSWs (2013 edition). Use the link for more information or to order.

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Your feedback is welcome, through the comments here, by email to ben [at] bencaldwell [dot] com, or to my decidedly non-abusive Twitter feed.