Litigation & Legislation Shaping the Counseling of LGBTQ Clients www.counseling.org/kaplan

David Kaplan, Ph.D. Chief Professional Officer American Counseling Association dkaplan@counseling.org Time to THRIVE Conference February, 2015

It all starts with systems theory……

ACA Position Statements Supporting the LGBTQ Community Not a mental disorder Counselors must not discriminate Counselors must not impose their values The right to marry Opposition to reparative therapy

Litigation attempts to prevent the counseling of LGBTQ clients

Ward v. Wilbanks

The basics A practicum student referred rather than counsel a homosexual client. After due process, the student was dismissed from the counseling program. The student sued the university counseling faculty and officials alleging violation of her 1st & 14th amendment rights, including to practice her religious beliefs.

ACA became involved Challenged the validity and enforceability of the non-discrimination clause of the ACA Code of Ethics.

ACA Code of Ethics C.5. Nondiscrimination Counselors do not condone or engage in discrimination based on age, culture, disability, ethnicity, race, religion/spirituality, gender, gender identity, sexual orientation, marital status/partnership, language preference, socioeconomic status, or any basis proscribed by law.

ACA Submitted an amicus brief http://www.counseling.org/resources/pdfs/EMUamicusbrief.pdf Provided expert testimony Recommended Dr. Mary Hermann for expert testimony

Court Findings The District Court granted a summary judgment in favor of the University. The 6th Circuit Court of Appeals remanded the case for trial. The case was settled.

Augusta State University lawsuit Keeton v. Anderson-Wiley

Keeton Case Similar to Ward Advocated for reparative therapy Creative remediation

The Judge ruled against the student and for the ASU counseling program

“This is not a case pitting Christianity against homosexuality” Rather, the judge ruled, it is about a university enforcing reasonable standards - the ACA Code of Ethics.

An appeal was denied by the 11th federal circuit court

And in February, 2013 an appeal for the circuit court to revisit their decision was denied

Lawsuit issues Is it permissible to deny counseling services to an LGBTQ client on the basis of the counselor’s values? Can referral be made at any time a professional counselor wishes to do so? When is a client a client?

Is it permissible to deny counseling services to an LGBTQ client on the basis of the counselor’s values?

Judge’s opinion “The ACA Chief Professional Officer, Dr. Kaplan, explained in his expert report that plaintiff’s request to refer clients based on their protected status (sexual orientation) ‘was a clear and major violation of the ACA code of Ethics as it would have been if she had refused to counsel an assigned African American on the basis that her values would not allow her to provide services to people of color.’ ”

Can referral be made at any time a professional counselor wishes to do so?

Judge’s opinion “Regarding referrals... ACA chief Professional Officer David Kaplan [states that] there is no statement in the ACA Code of Ethics that referral can be made on the basis of counselor values.”

Judge’s opinion “Referrals are taught to be a last resort…EMU could not confer a counseling degree on a student who said she would categorically refer all clients who sought counseling on topics with which she had contrary moral convictions.”

When is a client a client?

ACA Testimony The ACA published book The Counselor and the Law makes it clear that the definition of a client begins at the moment an individual requests assistance… This obligates professional counselors to respect the dignity and to promote the welfare of a client even if a session has not yet occurred. It is therefore clear that the individual assigned to Ms. Ward was her client.

The good news It continues to be a major violation of the ACA Code of Ethics for a counselor to discriminate against clients on the basis of gender identity or sexual orientation

The not so good news States have gotten into the act with conscience clause legislation

Arizona Graduate programs in counseling or social work cannot require students to counsel gay people in ways that are inconsistent with the student’s values

Michigan Bills introduced to prohibit universities from disciplining a counseling, social work, or psychology student “because the student refuses to counsel or serve a client as to goals that conflict with a [student’s] sincerely held religious belief or moral conviction…”

Virginia House Bill #1414 introduced in January

It’s getting personal…language from Michigan SR 66 “Whereas, The American Counseling Association, a private organization that promulgates a code of ethics widely used by university counseling programs and state licensure boards in training for and regulating the counseling profession, has publicly supported universities that have punished or dismissed students for adhering to their sincere religious convictions…”

On the positive legislation front… However…. On the positive legislation front…

California New Jersey Washington DC have banned reparative therapy for children

An outcome of this litigation & legislation…… A strengthening of counselors code of conduct

A.4.b. Personal Values Counselors are aware of –and avoid – imposing their own values, attitudes, beliefs, and behaviors.

A.11.b Inability to Assist Clients Counselors refrain from referring prospective and current clients based solely on the counselor’s personally held values, attitudes, beliefs, and behaviors

So who is winning?

We Are!

Resources American Counseling Association government affairs current issues webpage www.counseling.org/government-affairs/current-issues American Psychological Association conscience clause legislation webpage www.apa.org/pi/lgbt/resources/policy/conscience-clause-brief.aspx National Center for Lesbian Rights campaign to end conversion therapy (including laws and legislation by state) www.nclrights.org/explore-the-issues/bornperfect/

Resources ACLU using religion to discriminate webpage (including medical care) www.aclu.org/using-religion-discriminate Lambda Legal website (search legal issues by state) www.lambdalegal.org/

Let’s Schmooze!

Litigation & Legislation Shaping the Counseling of LGBTQ Clients www.counseling.org/kaplan