Whose conscience matters?

When can a therapist decide their own morals and values outweigh those of their clients?

The AAMFT has kindly made my article on conscience clause laws in mental health the cover story for the September issue of Family Therapy Magazine. You can read the article here if you’re an AAMFT member.

Of course I’m biased here, but I think you’ll find it worth the read. While I’ve written about the topic a few times here on the blog (most recently, I wrote about conscience clause laws being considered in Washington, Texas, Arizona, and Michigan), my focus here has been much narrower than it is in the magazine. In the FTM piece I take a broad look at the issue, from the origins of conscience clauses to the best arguments for and against them. While these laws are often spurred by a desire to protect religious practitioners, you don’t need to be religious to be impacted by them, and you might be surprised at what the laws would appear to allow:

Most conscience clause laws are so broadly written that they could allow […] therapists to refuse to treat sexually active unmarried couples, or therapists morally opposed to immigration to refuse treatment to clients based on nationality, even in a mental health emergency.

Is this a price worth paying to protect therapists’ moral views? My skepticism is raised when considering that the religious practitioners and legislators backing these bills often seem to have a desire to legitimize discrimination against gay and lesbian clients. So, you know, that’s not okay. But the issue isn’t black and white, as I hope the magazine article illustrates.

In addition to the main article, a sidebar I had written about conscience clause laws being considered or adopted in various states around the country was transformed into a really cool national map infographic. I wish I could take credit for that — it’s great visual layout — but that’s all magazine staff. Check it out.

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I have another article in the works proposing a way therapists could consider the appropriateness of a conscience-based referral, within the fuzzy boundaries of existing law and the existing AAMFT Code of Ethics. So stay tuned for that (for several months, in all likelihood, but I’ll keep you updated).

Your comments are welcome. You can post them in the comments below, or email me at ben[at]bencaldwell[dot]com.

Proposed new MFT accreditation standards eliminate vague religious exemption

If adopted, the draft COAMFTE standards would require all programs to teach LGBTQ-affirmative practices.

W-classroomThe public comment period closes Wednesday on the draft version of new accreditation standards for graduate programs in marriage and family therapy. The Commission on Accreditation for Marriage and Family Therapy Education (COAMFTE) is proposing some major changes from current standards:

  • The draft standards would restore the 500-client-contact-hour requirement for practicum. Under the current, version 11.0 standards, programs can require fewer hours as long as they have evidence to show that their practicum results in students being competent to practice at the master’s level. This vague standard has left different accredited programs using different experience requirements, which can be confusing to state licensing boards who want to know how much practical experience they can reasonably expect to be included in graduate degrees.

  • The draft standards separate accreditation requirements into “eligibility standards” and “accreditation standards.” As it is now, the Commission makes its decisions based on the full scope of information presented to them. Programs that meet most but not all standards may still be granted accreditation, with stipulations — requirements that the program comes into full compliance with the standards within a year. This proposed split into eligibility and accreditation standards arguably makes the accreditation bar a bit higher: Programs that fail to meet even one of the eligibility standards would not be eligible for accreditation, regardless of their performance on the other standards.

  • The draft standards would go back to a singular, mandatory core curriculum for all accredited programs. Of course, programs would remain free to add on to this core curriculum as they see fit, but all accredited programs would be required to have the same core set of coursework.

  • Perhaps what is most notable in the draft standards is what is missing: The draft standards remove COAMFTE’s current vague, blanket exemption for religious programs. The exemption, present in the current COAMFTE standards (p. 3), says

    Religiously affiliated institutions that have core beliefs directed toward conduct within their communities are entitled to protect those beliefs.

    It has never been clear to me what that is supposed to mean in practice, but the way I read it, any religious-based program that wants COAMFTE accreditation but isn’t in tune with any part of the standards was free to ignore that part of the standards, as long as they could tie their objection to their religious beliefs. Under the proposed new standards, not only would that clause go away, but the required curriculum would include at least three semester units on

    diversity, power, privilege and oppression as they relate to race, age, gender, ethnicity, sexual orientation, gender identity, socioeconomic status, disability, health status, religious and spiritual practices, nation of origin or other relevant social categories throughout the curriculum. It includes practice with diverse, international, multicultural, marginalized, and/or underserved communities, including LGTBQ affirmative practices. [emphasis in original]

    It is much clearer what the new standards would mean: Every COAMFTE-accredited program would need to teach its students how to work with LGBTQ clients in a positive, affirming way, and an appreciation for the harm such clients suffer from living in a heterosexist society.

To me, these are all good and necessary changes. First, as to the hours and curriculum changes: I hear chatter among MFTs around the country that licensing boards haven’t known what to do with the current COAMFTE standards. Those current standards are so flexible that licensing boards don’t necessarily know what they’re getting when someone comes to them with a COAMFTE-accredited degree. The draft standards, if adopted, would bring back greater consistency in content across programs and could restore state boards’ confidence in maintaining COAMFTE accreditation as the standard educational requirement for licensure.

Second, as to the removal of the religious exception: I’ve written previously about the struggles some religious therapists face when trying to work with LGBT clients, and the debate there is far from settled. But accredited programs can and should teach affirmative practices. The debate here should be restricted to how a therapist balances their values with client needs in the therapy room, not about whether the therapist can be exempted from exposure to affirmative techniques or to the suffering LGBTQ clients genuinely experience.

There’s only one thing COAMFTE didn’t included that I wish they would: Require MFT programs to be more transparent about cost.

COAMFTE will be reviewing comments on the proposed changes this fall. If adopted, the new standards would likely take effect in 2014 for new accreditations and be phased in for those programs already accredited.

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.

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

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
Childrenā€™s Law Center of California
City and County of San Francisco
Dependency Legal Group of San Diego
Dr. Jack Drescher
East Bay Childrenā€™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.