Ward v. Wilbanks & Keeton v. Anderson-Wiley: Can Professional Counselors Use Religious Beliefs As the Basis for Refusing to See LGBTQ Clients www.counseling.org/kaplan

David Kaplan, Ph.D. American Counseling Association dkaplan@counseling.org Mary Hermann, J.D., Ph.D. Virginia Commonwealth University mahermann@vcu.edu Time to THRIVE Conference February, 2014

Our involvement in Ward v. Wilbanks We wrote briefs and provided expert testimony on behalf of both the counseling program being sued and the counseling profession.

Overview Counseling’s LGBTQ positions Legal context Case descriptions and outcomes ACA’s positions on the cases Legislative (over)reactions Implications for LGBTQ clients, counselors, and educators Q&A

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

Legal Context of Cases Bruff v. North Mississippi Health Services (2001) Court upheld counselor’s termination for refusal to counsel a lesbian client on relationship issues. Walden v. Centers for Disease Control (2010) Counselor’s employment terminated after she referred client who sought counseling regarding same-sex relationship.

Ward Case Facts A practicum student asked to refer rather than counsel a client who had previously sought counseling services related to a same-sex relationship. The request was granted to avoid harm to the client, but the student was told that she would have to learn to work with a diverse clientele.

Ward Case The faculty offered a remediation plan to the student, but the student refused the plan. The student was dismissed from the counseling program. The student sued the counseling faculty and university officials alleging violation of her 1st and 14th amendment rights, including her right to her religious beliefs.

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. The University did not have to change its gate keeping policies.

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. Hermann for expert testimony

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?

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.

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?

ACA Code of Ethics A.11.c. Appropriate Termination Counselors terminate a counseling relationship when it becomes reasonably apparent that the client no longer needs assistance, is not likely to benefit, or is being harmed by continued counseling.

ACA Code of Ethics A.11.a. Abandonment Prohibited Counselors do not abandon or neglect clients.

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

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…”

California has banned reparative therapy for children However…. California has banned reparative therapy for children

These cases and the current legislative actions have provided opportunities to build awareness in the counseling community

JCD Special Issue on Professionalism, Ethics, and Value-Based Conflicts in Counseling (April, 2014)

ACA Code of Ethics Revision Draft Emphasizes Honoring diversity Promoting social justice Providing culturally competent counseling services Prohibits counselors from condoning or engaging in discrimination against prospective or current clients on the basis of sexual orientation

American School Counselor Association A comprehensive school counseling program “advocates for and affirms all students from diverse populations including: ethnic/racial identity, age, economic status, abilities/ disabilities, language, immigration status, sexual orientation, gender, gender identity/expression, family type, religious/spiritual identity and appearance.” Ethical Standards for School Counselors (Preamble, ASCA, 2010)

ASCA Position Statement “The Professional School Counselor and LGBTQ Youth” “The professional school counselor works with all students through the stages of identity development and understands this development may be more difficult for LGBTQ youth. It is not the role of the school counselor to attempt to change the student’s sexual orientation/gender identity but instead to provide support to the LGBTQ students to promote student achievement and personal well-being.”

ASCA Position Statement “The Professional School Counselor and LGBTQ Youth” Professional School Counselors “are committed to the affirmation of youth of all sexual orientations and identities.” Professional School Counselors “assist all students as they clarify feelings about their own sexual orientation/gender identity and the identity of others in a nonjudgmental manner.”

Implications for counselors and clients: Ensuring cultural competency and promoting best practice

Counselor Education Counselor Educators can continue to train future counselors to provide culturally competent services.

Accrediting Body: Council for the Accreditation of Counseling and Related Educational Programs (CACREP) CACREP supports the ethical Standards of professional organizations (i.e., ACA and its divisions) CACREP Standards include the expectation that students will learn counselors’ roles in eliminating biases, prejudices, and processes of intentional and unintentional oppression and discrimination.

Best Practice: Counselor Educators design academic activities that help students learn to manage value differences that exist between themselves and future clients.

Counselors are not expected to be value-free in their counseling practice, but are expected to avoid imposing their values onto clients. Bracketing Approach (honor but not impose values)

Continuing Education Ethics code revision Conference Books, journals, Counseling Today ACA website (counseling.org) Webinars Podcasts Promoting ALGBTIC

Discussion/Questions

Ward v. Wilbanks & Keeton v. Anderson-Wiley: Can Professional Counselors Use Religious Beliefs As the Basis for Refusing to See LGBTQ Clients www.counseling.org/kaplan