Senate Bill 1172 would stop licensed therapists from providing reparative therapy to minors. It awaits Governor Brown’s signature or veto.Updated 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. # # # 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.
California law defines normal, consensual, adolescent heterosexual behavior — and all same-sex sexual behavior — as child abuse. The law is discriminatory. It harms the therapeutic relationship. It needs to be changed.
- One partner 13 or younger: If the other partner is also 13 or younger and both children are of similar maturity, report only if there is evidence of intimidation, coercion, bribery, or other exploitation. If the other partner is 14 or older, report.
- One partner age 14 or 15: If the other partner is under 14, report. If the other partner is 14 to 20 years old, do not report unless there is evidence of exploitation as described above. If the other partner is 21 or older, report.
- One partner age 16 or 17: If the other partner is under 14, report. If the other partner is 14 or older, do not report unless there is evidence of exploitation as described above.
- For normally-developing heterosexual teens, it is common to engage in oral sex before progressing to intercourse. Most of those who have had sex before age 18 have also had oral sex(2), and a 2006 review of national data showed that at almost a quarter of teenagers who had not had vaginal intercourse had engaged in oral sex. This sets up a backward reporting standard, where sex itself may not be considered abuse depending on the ages of the adolescents, but behavior that occurs earlier in development or as foreplay to intercourse is considered abuse.
- For normally-developing gays and lesbians, any sexual activity before reaching adulthood is classified as abuse in the eyes of the law. Remember, oral sex, anal sex, and object penetration are always considered abuse if either partner is under 18. If we have finally reached the point where consensual sex between gay or lesbian adults can no longer be criminalized, it seems a natural extension to treat consensual sexual activity among gay and lesbian teens on a par with consensual sexual activity among straight teens. If we say consensual, heterosexual sex between minors that meets specific criteria (not exploitive, and weighing the minors’ ages) is not abusive, shouldn’t that same treatment be given to similar consensual, homosexual behavior under the same conditions?
- Religious teens get caught in this mess too, as was pointed out by Dr. Judy Johnson, a Licensed Educational Psychologist who serves on California’s Board of Behavioral Sciences. It is not unusual for religious, heterosexual teens to engage in oral or anal sex instead of vaginal intercourse. These teens often specifically cite their religious beliefs as a reason for delaying intercourse. At an April committee meeting for the BBS, Dr. Johnson noted that these teenagers often say they are seeking to preserve their virginity. So, even in a consensual relationship, a teenager preserving their virginity on their own terms means engaging in what the state would consider child abuse.
- Direct the client not to share important sexual experiences. This usually starts with educating the client on the law’s limits to confidentiality, and may involve frequent reminders to the client about what cannot be discussed in therapy. This keeps the therapist from having to report, and thus keeps them compliant with the law, but it also closes potential conversation about a key area of adolescent growth and social development. Teenagers often want to discuss their relationships in the safe context of therapy precisely because they trust the therapist to have such conversation in private and without judgment. Stopping this conversation means that teenagers cannot have honest conversations with their therapists about sexual feelings and behaviors, including the risks and consequences of their actions. For teenagers who already distrust adults, this only further fuels that distrust. Finally, as should be obvious, directing teens not to talk about sexual experiences means directing them not to talk about experiences of real abuse that should be reported.
- Educate the client about what must be reported, and then allow them to use coded language. I have known some therapists who felt better using this as a middle-ground option, to at least give their adolescent clients some leeway to discuss sex. However, it (by design) leaves the waters of what is being discussed muddy on both sides, and leads to awkward, stilted conversations about sexual behavior. It also doesn’t really protect the therapist; regardless of what specific words the client is using, if the therapist reasonably believes the client is communicating that a reportable act took place, the therapist is legally obligated to report it.
- Choose not to follow the reporting law, accepting the liability that comes with that decision. A therapist who knowingly fails to report what the state considers child abuse can face up to six months in jail. However, taking on this risk allows for the most open and honest discussion of a client’s sexual behavior, and comfortable communication about sexual activity actually delays risky sexual behavior.
While I’m no lawyer, the fact that the law is discriminatory on its face would seem to make it unlikely to withstand a legal challenge. If I were the state of California, I certainly would not want to be defending the existing law in court. But why should the state wait to be sued by a 17-year-old reported as a child abuser for having consensual oral sex with his or her 17-year-old, same-sex partner? It would be far preferable to resolve the issue through legislation, but so far there has not been enough political will to make the needed changes. Because an amendment to make the law fair would necessarily reduce the mandated reporter’s obligations, it would look like a weakening of the child abuse reporting law — and in the wake of the Jerry Sandusky scandal at Penn State, lawmakers have reflexively moved in the opposite direction. An analysis from the California Assembly Appropriations Committee lists no less than seven bills in the state legislature this year that would expand mandated reporting and stiffen penalties for failure to report. The Board of Behavioral Sciences has expressed interest into at least examining the issue. I brought this to them at their April [page 27] and July Policy and Advocacy Committee meetings, and they have agreed to place it on a future agenda for discussion. What’s really needed, though, is a lawmaker with the nerve to stand up and say, “The current law is wrong, it discriminates against gay and lesbian youth, and it makes it harder to provide a safe therapeutic environment for normal, healthy adolescents. Let’s make the law do what we intended for it to do in the first place: protect vulnerable people from harm. Let’s stop requiring therapists to label normal teenagers as child abusers.” References 1. Atkins, C. L. (2007). Reporting consensual activity between minors: The confusion unraveled. The Therapist, 19(1), 32-35.
Because of this antiquated reporting law, I warn my adolescent clients not to talk to me about these things, as I am required by law to report it. As one of my grad students asked, “You mean, you have to tell a teen not to talk about something they most likely need to talk to someone about?” I sadly must explain, yes.
2. Halpern, C. T., & Haydon, A. A. (2012). Sexual timetables for oral-genital, vaginal, and anal intercourse: sociodemographic comparisons in a nationally representative sample of adolescents. American Journal Of Public Health, 102(6), 1541-0048. # # # As I said, I’m not a lawyer. The above information should not be construed as legal advice when determining whether a child abuse report is required. Consult with a supervisor and/or an attorney about your specific situation. What are your thoughts about the law and how to best fix it? Post a comment below, email me at ben[at]bencaldwell[dot]com, or post a message to my Twitter feed.
Jennifer Keeton had refused to treat gay clients, and Maria Salcido alleged that racial bias kept her from finishing her family therapy degree.
There have been at least three recent lawsuits involving students in the mental health professions and allegations of discrimination. In recent rulings, universities prevailed in two of those suits: Jennifer Keeton’s case against Augusta State University, and Maria Salcido’s case against Southern Miss University. The third case, in which Julea Ward sued Eastern Michigan University, remains in court.
In 2010, Jennifer Keeton sued Augusta State. The school had expelled her from its counseling program after she had said many times over in classes and in meetings with school officials that she would not counsel gay or lesbian clients. The university offered Keeton a remediation plan, with the hope of aiding her in not imposing her values on clients. Keeton claimed the university was trying to force her to change her religious beliefs. The university insisted that the intent of the remediation was in keeping with the ACA Code of Ethics. The ACA Code requires that counselors not impose their values on clients, regardless of what the counselor’s personal values may be.
A federal district court last month ruled in favor of the university. Importantly, the judge in the case also reinforced the importance of professional ethical codes, noting
[W]hen someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements. […] The ACA and ASCA Codes, with their emphasis on the counselor’s role in facilitating personal client growth and self-determination, both expressly proscribe the imposition of a counselor’s personal views in counseling situations.
The AAMFT Code of Ethics, like most professional codes, includes a non-discrimination statement. Interestingly, the AAMFT Code does not include the kind of clear prohibition against professionals imposing their own personal values that is found in the codes of other organizations. At best, it is implied in the AAMFT Code. That could become important if an MFT program is ever challenged in court over similar issues.
In a separate case last year, Maria Salcido filed a claim against Southern Miss, alleging that racial bias kept her from completing her MFT degree there. She had withdrawn after being unable to find a placement site for her required externship experience. Her suit accused the university of preventing her from getting a placement because of her race.
She not only lost her case, the language of the court ruling against her suggests frustration that she wasted everyone’s time:
[Salcido’s] bare factual allegations are seasoned with healthy doses of legal conclusions and fall far short of plausibly suggesting a discriminatory state of mind on the part of any defendant.
That was how the court reacted to her discrimination claim; she didn’t fare any better on the other claims she made against the university. The entirety of her suit was dismissed with prejudice.~ Together, these rulings appear to suggest that students cannot use accusations of discrimination to get what they want from graduate programs in mental health, particularly when (as in Keeton’s case) they are asking to overrule academic decisions tied to the ethical standards of the profession the student is trying to get into. Unfortunately, it is too early to say the question is settled: the Julea Ward case is still out there, and it bears more than a few things in common with Keeton’s. (The judge in Keeton’s case uses a lengthy footnote to discuss what is different between the Ward and Keeton cases [pages 49-50], one of many reasons that ruling is worth reading.) I’ve previously written about the Ward lawsuit, a recent ruling that keeps the Ward case alive, and “conscience clause” legislation proposed as a direct result of Ward’s experience. # # # Post your comments on these cases below, email me at ben[at]bencaldwell[dot]com, or join the conversation on my Twitter feed.
Her religious discrimination suit is returned to a federal jury. Meanwhile, a proposed law in Michigan would allow students to refuse to treat any client they chose, out of any genuine religious or moral belief.
For the first time, she won a court ruling in her case against Eastern Michigan University, which had disciplined her for refusing to provide counseling services to a gay client as part of her graduate practicum training. Just weeks later, legislation bearing her name moved forward in the Michigan legislature despite protests from universities and professional associations that the Julea Ward Freedom of Conscience Act would make it harder to effectively train mental health professionals.
In the court case, Ward’s victory was limited but it does keep her case alive. While not making a determination of the merits of the case, the 6th Circuit Court of Appeals ruled that Ward should have the opportunity to argue that her religious beliefs were used against her, according to the Associated Press. The case will be returned to a Detroit-based federal jury.
In the Michigan legislature, the House Education Committee advanced HB5040, the bill bearing Ward’s name. According to the Holland Sentinel, the bill would “prohibit religious discrimination against students who are studying counseling, social work, and psychology.” That description seems a bit narrower to me than the bill itself, which goes beyond just prohibiting discrimination: it actually prohibits universities from any disciplinary actions against students who refuse to treat clients based on “a sincerely held religious belief or moral conviction of the student, if the student refers the client to a counselor who will provide the counseling or services.”
You can keep up with the bill’s progress here: HB5040.
I wrote about Ward’s case for Family Therapy Magazine a couple of months ago (full article: Can a religious therapist refuse to treat gay and lesbian clients?). She described the events that led to her lawsuit in this video for the Christian-based legal organization that is defending her:
I’ll be writing more about HB5040 and other “conscience clause” legislation in the near future. In the meantime, the Pew Research Center offers a fascinating legal history of conscience issues in health care.Update: About a week after this post was initially published, I posted another piece about conscience clause legislation. # # # Share your thoughts on this case: Email me at ben[at]bencaldwell[dot]com, post a comment below, or find me on Twitter (@benjamincaldwel).