BILL ANALYSIS Ó
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| Hearing Date:April 23, 2012 |Bill No:SB |
| |1172 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 1172Author:Lieu
As Amended:April 16, 2012 Fiscal: No
SUBJECT: Healing arts: sexual orientation change efforts.
SUMMARY: Prohibits psychotherapists from providing sexual orientation
change efforts (SOCE) without the informed consent of adult patients,
and allows a cause of action to be pursued by patients or former
patients against a psychotherapist.
Existing law:
1) Existing law provides for licensing and regulation of various
professions in the healing arts, who utilize psychotherapeutic
techniques, including physicians and surgeons with a psychiatric
specialty, licensed clinical psychologists, licensed marriage and
family therapists (LMFTs), licensed clinical social workers (LCSWs)
and licensed professional clinical counselors (LPCCs). (BPC §
2099, § 2928, § 2940, § 4980.40.5, and § 4996.2)
2) Defines psychotherapy, as practiced by licensed clinical
psychologists, as the use of psychological methods in a
professional relationship to assist a person or persons to acquire
greater human effectiveness or to modify feelings, conditions,
attitudes and behavior which are emotionally, intellectually or
socially ineffectual or maladjustive. (BPC § 2903)
3) Defines psychotherapy, as practiced by LCSWs, as the psychosocial
methods within a professional relationship to assist the person or
person to achieve a better psychosocial adaptation to acquire
greater human realization of psychosocial potential and adaptation,
to modify internal and external conditions which affect
individuals, groups or communities in respect to behavior, emotions
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and thinking, in respect to their intrapersonal and interpersonal
processes. (BPC 4996.9)
4) Defines counseling interventions and psychotherapeutic techniques
as the application of cognitive affective, verbal or nonverbal,
systemic or holistic counseling strategies that include principles
of development, wellness and maladjustment that reflect a
pluralistic society.
(BPC § 4999.20 (b))
5) Indicates that these interventions and techniques should be
specifically implemented in the context of a professional clinical
counseling relationship and use a variety of counseling theories
and approaches. (BPC § 4999.20 (b))
6) Permits MFTs to use applied psychotherapeutic techniques to enable
individuals to mature and grow within marriage and the family.
(BPC § 4980.2)
7) Permits LPCCs to apply counseling interventions and
psychotherapeutic techniques to identify and remediate cognitive,
mental and emotional issues including personal growth, adjustment
to disability, crisis intervention and psychosocial and
environmental problems. (BPC § 4999.20 (b))
This bill:
1)Makes the following findings and declarations:
a) An individual's sexual orientation, whether homosexual,
bisexual, or heterosexual, is not a disease, disorder, illness,
deficiency, or shortcoming. The major professional associations
of mental health practitioners and researchers in the United
States have recognized this fact for nearly 40 years.
b) Sexual orientation change efforts (SOCE) pose critical health
risks to lesbian, gay, and bisexual people, including confusion,
depression, guilt, helplessness, hopelessness, shame, social
withdrawal, suicidality, substance abuse, stress, disappointment,
self-blame, decreased self-esteem and authenticity to others,
increased self-hatred, hostility and blame toward parents,
feelings of anger and betrayal, loss of friends and potential
romantic partners, problems in sexual and emotional intimacy,
sexual dysfunction, high-risk sexual behaviors, a feeling of
being dehumanized and untrue to self, a loss of faith, and a
sense of having wasted time and resources. This is documented by
the American Psychological Association Task Force on Appropriate
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Therapeutic Responses to Sexual Orientation in its 2009 Report of
the Task Force on Appropriate Therapeutic Responses to Sexual
Orientation.
c) Recognizing that there is no evidence that any type of
psychotherapy can change a person's sexual orientation and that
sexual orientation change efforts may cause serious and lasting
harms, the American Psychiatric Association, the American
Psychological Association, the American Counseling Association,
the National Association of Social Workers, and the American
Academy of Pediatrics uniformly oppose efforts to change the
sexual orientation of any individual.
d) Minors who experience family rejection based on their sexual
orientation face especially serious health risks. In one study,
lesbian, gay, and bisexual young adults who reported higher
levels of family rejection during adolescence were 8.4 times more
likely to report having attempted suicide, 5.9 times more likely
to report high levels of depression, 3.4 times more likely to use
illegal drugs, and 3.4 times more likely to report having engaged
in unprotected sexual intercourse compared with peers from
families that reported no or low levels of family rejection.
This is documented by Caitlyn Ryan et al. in their article
entitled Family Rejection as a Predictor of Negative Health
Outcomes in White and Latino Lesbian, Gay, and Bisexual Young
Adults (2009) 123 Pediatrics 346.
e) California has a compelling interest in protecting the lives
and health of lesbian, gay, and bisexual people.
2)Defines "informed consent" as consent that is voluntarily provided
in writing by a patient to a psychotherapist with whom the patient
has a therapeutic relationship. The informed consent must explicitly
manifest the patient's agreement to sexual orientation change
efforts and include a statement as specified. Consent that is
provided as a result of therapeutic deception or duress or coercion
is not informed consent.
3)Defines "psychotherapist" as a physician and surgeon specializing in
the practice of psychiatry, a psychologist, a psychological
assistant, a psychiatric technician, a marriage and family
therapist, a registered marriage and family therapist, intern, or
trainee, an educational psychologist, a licensed clinical social
worker, an associate clinical social worker, a licensed professional
clinical counselor, or a registered clinical counselor, intern, or
trainee.
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4)Defines "psychotherapy" as the professional assessment, evaluation,
treatment, or counseling of a mental or emotional illness, symptom,
or condition by a psychotherapist.
5)Defines "sexual orientation change efforts" as psychotherapy aimed
at altering the sexual or romantic desires, attractions, or conduct
of a person toward people of the same sex so that the desire,
attraction, or conduct is eliminated or reduced or might instead be
directed toward people of a different sex. It does not include
psychotherapy aimed at altering sexual desires, attractions, or
conduct toward minors or relatives or regarding sexual activity with
another person without that person's consent.
6)Defines "therapeutic deception" a representation by a
psychotherapist that sexual orientation change efforts are endorsed
by leading medical and mental health associations or that they can
or will reduce or eliminate a person's sexual or romantic desires,
attractions, or conduct toward another person of the same sex.
7)Defines "therapeutic relationship" as the relationship that exists
during the time the patient receives psychotherapy.
8)Prohibits a psychotherapist, as defined, from performing sexual
orientation change efforts in the absence of informed consent of the
adult patient.
9)Requires that to obtain informed consent, a treating psychotherapist
shall provide a patient with a form to be signed by the patient that
provides informed consent and that the form shall contain a
statement as specified.
10)Specifies that under no circumstances shall a patient under 18
years of age undergo sexual orientation change efforts, regardless
of the willingness of a patient's parent, guardian, conservator, or
other person to authorize such efforts.
11)Specifies that the right to refuse sexual orientation change
efforts is not waived by giving informed consent and that consent
may be withdrawn at any time prior to, during, or between sessions
of sexual orientation change efforts and that any act of duress or
coercion by any person or facility shall invalidate the patient's
consent to sexual orientation change efforts.
12)Provides that a cause of action may be brought against a
psychotherapists by a patient , former patient, or others as
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specified if the sexual orientation change efforts were conducted
without first obtaining informed consent or by means of therapeutic
deception, or if the sexual orientation change efforts were
conducted on a patient who was under 18 years of age at any point
during the use of the sexual orientation change efforts.
13)Specifies those brining the cause of action may recover actual
damages, or statutory damages in the amount of $5,000, which ever in
greater, in addition to cost and reasonable attorney's fees.
14)Specifies the time for which commencement of the action may be
brought.
FISCAL EFFECT: None. This bill has been keyed "non-fiscal" by
Legislative Counsel.
COMMENTS:
1. Purpose. Equality California is the Sponsor of the bill.
According to the Author, the intent of the bill is to limit
deceptive therapies that are harmful to minors by mental health
providers. The bill seeks to provide awareness of the alternatives
to and the potential harmful effects of sexual orientation change
therapies while also protecting children from these treatments.
The Author states "?this so-called reparative therapy, conversion
therapy or reorientation therapy is scientifically ineffective and
has resulted in much harm." This bill seeks to provide protections
for LGBT youth by preventing these types of therapies that are
potentially dangerous as well as making adults aware of the
potential harms associated with sexual orientation change
therapies.
2. The Practice of Psychotherapy. Psychotherapy is a general term
referring to therapeutic interaction or treatment contracted
between a trained professional and a client or patient; family,
couple or group. Psychotherapy includes the use of psychological
methods in a professional relationship to assist a person or
persons to acquire greater human effectiveness or to modify
feelings, conditions, attitudes and behavior which are emotionally,
intellectually or social ineffectual or maladjustive. (BPC §
2903)
Across the Unites States, psychotherapy may be performed by
practitioners with a number of different qualifications, including
psychiatrists, clinical psychologists, counseling psychologists,
clinical or psychiatric social workers, mental health counselors,
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marriage and family therapist, rehabilitation counselors, school
counselors and psychiatric nurses among others. Requirements of
these professions vary, but often entail graduate school and
supervised clinical experience.
In the State of California, only the following professionals are
licensed and regulated under the Board of Psychology, Board of
Behavioral Sciences and Medical Board to provide psychotherapy,
among other services, to patients:
a. Board Certified Psychiatrists (MDs or DOs with
specific training in psychotherapy and psychopharmacology,)
b. Licensed Clinical Psychologists (LCPs)
c. Licensed Clinical Social Workers (LCSWs)
d. Licensed Marriage and Family Therapists (LMFTs)
e. Licensed Professional Clinical Counselors (LPCCs)
3. History of Homosexuality and the American Psychiatric Association
(APA). A number of research studies on homosexuality conducted in
the 1940's and 1950's, combined with protests during the civil
rights movement of the 1960's and 1970's led to the reformation of
how homosexuality was classified by mental health and medical
associations such as the APA and the APA removed homosexuality from
its official Diagnostic and Statistical Manual of Mental Disorders
(DSM) in 1973.
Prior to the civil rights movement, the medical view of
homosexuality was that it was a mental disorder and disease. There
were a series of resulting encounters between activists and
psychiatrists at the annual meetings of the APA between 1970 and
1972 where gay activists challenged the APA. As a result, the
diagnosis of homosexuality was deleted from the
DSM-II.
The APA did not initially embrace this change. In recognition of
those who opposed deleting the classification, the APA made a
compromise. The DSM-II diagnosis of Sexual Orientation Disturbance
(SOD) replaced homosexuality. Accordingly, individuals comfortable
with their homosexuality were no longer classified as having a
mental disorder. Instead, only those who were "in conflict with"
their sexual orientation were classified as having a mental
disorder. However, this change engendered continued controversy.
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Those opposing the diagnosis argued that there were no reported
cases of unhappy heterosexual individuals seeking treatment to
become homosexual. This problem was addressed in the 1980s DSM-III
where SOD was replaced by ego-dystonic homosexuality (EDH).
In the mid 1980's during the revision of the DSM-III, the diagnosis
of EDH also engendered controversy. Those on the APA Advisory
Committee working on the revision who desired to retain the EDH
diagnosis argued that they believed the diagnosis was clinically
useful and that is was necessary for research and statistical
purposes. The opponents noted that making a patient's subjective
experience of their own homosexuality the determining factor of
their illness was not consistent with the new evidence-based
approach that psychiatry had embraced. They argued that empirical
data did not support the diagnosis and that it was inappropriate to
label culturally induced homophobia as a mental disorder. The APA
Committee agreed with the opponents and the diagnosis of
ego-dystonic homosexuality was removed from DSM-III-R in 1987.
4.History of Homosexuality and the World Health Organization (WHO).
In 1992, the WHO removed the diagnosis of homosexuality as a mental
disorder from the International Classification of Disorders-10
(ICD-10). Similar to the DSM, the ICD-10 is a classification system
for medical and mental disorders used internationally. The WHO
replaced homosexuality with the diagnosis of ego-dystonic sexual
orientation which falls under the category of: "Psychological and
behavioural disorders associated with sexual development and
orientation". The ICD-10 ego-dystonic sexual orientation diagnosis
is defined as:
"The gender identity or sexual preference (heterosexual,
homosexual, bisexual, or pre-pubertal) is not in doubt, but the
individual wishes it were different because of associated
psychological and behavioural disorders, and may seek treatment
in order to change it."
The WHO also notes: "Sexual orientation by itself is not to be
regarded as a disorder? it is often a result of unfavorable and
intolerant attitudes of the society or a conflict between sexual
urges and religious belief systems."
5.Sexual Orientation Change Therapy (SOCE). SOCE, sometimes called
reparative therapy,
conversion therapy, or reorientation therapy, is an attempt to
change the sexual orientation of a person from homosexual or
bisexual to heterosexual. According to the American Psychiatric
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Association, conversion therapy is a type of psychiatric treatment
"based upon the assumption that homosexuality is a mental disorder
or based upon the a priori assumption that a patient should change
his/her homosexual orientation."
Joseph Nicolosi, one of the founders of modern reparative therapy,
promotes psychoanalytic theories suggesting that homosexuality is a
form of arrested psychosexual development, resulting from "an
incomplete bond and resultant identification with the same-sex
parent, which is then symbolically repaired in psychotherapy."
Nicolosi's intervention plans involve conditioning a man to a
traditional masculine gender role via participation in sports
activities, avoidance of the other sex unless for romantic contact,
avoiding contact with homosexuals, increasing time spent with
heterosexuals, engaging in group therapy, marrying a person of the
opposite sex and fathering children.
Others, particularly conservative Christian transformational
ministries, use the term conversion therapy to refer to the
utilization of prayer, religious conversion, individual and group
counseling to change a person's sexual orientation.
The federal Ninth Circuit Court of Appeals addressed the issue of
sexual orientation therapy in the context of an asylum application.
The court held that a Russian citizen who was subjected to sexual
orientation change treatments that included sedative drugs and
hypnosis "constituted mental and physical torture." Pitcherskaia v
INS 118 F.3d 641 (9th Cir. 1997)
6.National Association for Research and Therapy of Homosexuality
(NARTH). NARTH is a
group of psychologists and analysts that views homosexuality as a
dysfunction that can be corrected. In their January 2012 Statement
on Orientation Change they write:
"Those who are highly pessimistic regarding change in sexual
orientation appear to have assumed a categorical view of change,
which is neither in keeping with how sexual orientation has been
defined in the literature nor with how change is conceptualized for
nearly all other psychological challenges. NARTH believes that
viewing change as occurring on a continuum is a preferable
therapeutic approach and more likely to create realistic
expectancies among consumers of change-oriented intervention. With
this in mind, NARTH remains committed to protecting the rights of
clients with unwanted same-sex attractions to pursue change as well
as the rights of clinicians to provide such psychological care."
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7. Positions of Mental Health Associations. Several national mental
health associations have commented on the use of sexual orientation
change efforts including reparative therapy, conversion therapy and
reorientation therapy.
a. The American Psychological Association , in its 1997
Resolution on Appropriate Therapeutic Responses to Sexual
Orientation states:
"We oppose portrayals of lesbian, gay and bisexual youth and
adults a mentally ill due to their sexual orientation and
support the dissemination of accurate information about
sexual orientation and mental health and appropriate
interventions in order to counteract bias that is based in
ignorance of unfounded beliefs about sexual orientation."
The American Psychological Association also convened a Task
Force on Appropriate Therapeutic Responses to Sexual
Orientation. The task force conducted a systematic review
of peer-reviewed journal literature on sexual orientation
change efforts. They concluded: "Efforts to change sexual
orientation are unlikely to be successful and involves some
risk of harm, contrary to the claims of sexual orientation
change efforts practitioners and advocates."
It should also be noted that the American Psychological
Association included an article that investigated and
promoted the use of conversion therapies in its June 2002
issue of the Professional Psychology: Research and Practice
peer-reviewed journal.
b. The American Psychiatric Association published a
position statement in March of 2000. In it they state:
"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 or based upon the
a priori assumption that a patient should change his/her
sexual homosexual orientation."
c. The American School Counselor Association's position
statement on professional school counselors and LGBT and
Questioning (LGBTQ) youth states:
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"It is not the role of the professional school counselor to
attempt to change a student's sexual orientation/gender
identity but instead to provide support to LGBTQ students to
promote student achievement and personal well-being.
Recognizing that sexual orientation into an illness and does
not require treatment, professional school counselors may
provide individual student planning or responsive services
to LGBTQ student to promote self-acceptance, deal with
social acceptance, understand issues related to coming out,
including issues that families may face when a student goes
through this process and identify appropriate community
resources."
d. The American Academy of Pediatrics published an
article in the Pediatrics journal in 1993. They state:
"Therapy directed at specifically changing sexual
orientation is contraindicated, since it can provoke guilt
and anxiety while having little or no potential for
achieving changes in orientation."
e. The American Medical Association's Council on
Scientific Affairs prepared a report in 1994. In it they
state:
"Aversion therapy (a behavioral or medical intervention
which pairs unwanted behavior, in this case, homosexual
behavior, with unpleasant sensations or aversive
consequences) is no longer recommended for gay men and
lesbians. Through psychotherapy, gay men and lesbians can
become comfortable with their sexual orientation and
understand the societal response to it."
f. The National Association of Social Workers prepared
a 1997 policy statement in which they state:
"Social stigmatization of lesbian, gay and bisexual people
is widespread and is a primary motivating factor in leading
some people to seek sexual orientation changes. Sexual
orientation conversion therapies assume that homosexual
orientation is both pathological and freely chosen. No data
demonstrates that reparative or conversion therapies are
effective, and, in fact, they may be harmful."
g. Just The Facts Coalition (Coalition) . In 2006, a
coalition of education, health and mental health
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organizations, under the leadership of the director of
advocacy of the Gay, Lesbian, and Straight Education Network
(GLSEN), developed a resource aid for school officials
regarding sexual orientation development in youth and
reparative and sexual orientation conversion therapy. The
resource was created in response to an "upsurge" in
promotion of efforts to change sexual orientation through
therapy and religious ministries and the "demand" that these
perspectives on homosexuality be taught in schools. The
Coalition clarified that homosexuality is not a mental
disorder and that the emergence of same-sex attraction and
orientation is not abnormal or mentally unhealthy. The
Coalition includes the following organizations:
i. American Academy of Pediatrics
ii. American Association of School
Administrators
iii. American Counseling Association
iv. American Federation of Teachers
v. American Psychological Association
vi. American School Counselor Association
vii. American School Health Association
viii. Interfaith Alliance
ix. National Association of School
Psychologists
x. National Association of Secondary School
Principals
xi. National Association of Social Workers
xii. National Education Association
xiii. School Social Work Association of America
8.Informed Consent. This bill would require that the following
statement appear on the informed consent form of any psychotherapist
who elects to provide sexual orientation change therapeutic
techniques with a client:
"Having a lesbian, gay or bisexual sexual orientation is not a
mental disorder. There is no scientific evidence that any type
of therapies are effective in changing a person's sexual
orientation. Sexual orientation change therapies can be harmful.
The risks include but are not limited to depression, anxiety,
and self-destructive behavior. Medical and Mental Health
Organizations that oppose the use of sexual orientation change
therapies include the American Medical Association, the American
Psychological Association, the American Psychiatric Association,
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the National Association of Social Workers, the American
Counseling Association, the American Association for Marriage and
Family Therapy, and the American Academy of Pediatrics."
The right to refuse sexual orientation change efforts is not waived
by giving informed consent and that consent may be withdrawn at any
time prior to, during or between sessions of sexual orientation
change efforts. Further, any act of duress or coercion by any
person or facility shall invalidate the patient's consent to sexual
orientation change efforts.
9.Cause of Action. This bill allows a cause of action to be brought
against a psychotherapist by a patient, former patient or former
patient's descendant if the sexual orientation change efforts were
conducted without first obtaining written informed consent or by
means of therapeutic deception, or if the sexual orientation change
efforts were conducted on a patient who was under 18 years of age at
any point during the use of the sexual orientation change efforts.
The patient, former patient or former patient's descendant may
recover actual damages or statutory damages in the amount of
$5,000.00, whichever is greater, in addition to costs and reasonable
attorney fees.
The time for commencement of the action shall be within eight years
of the date the patient or former patient attains the age of
majority or within five years of the date the patient, former
patient or former patient's descendant discovers or reasonably
should have discovered that the patient was subjected to sexual
orientation change efforts in violation of the law.
A patient, former patient or former patient's descendant will not be
precluded from the right to bring a civil action against a
psychotherapist arising from other legal claims.
10.Arguments in Support. Equality California (Sponsor) indicates that
this bill will help to curb questionable practices "known to produce
lifelong damage to those who are subjected to them." They assert
"SOCE poses critical health risks to LGBT people including
depression, shame, decreased self-esteem, social withdrawal,
substance-abuse, risky behavior and suicidality." They also believe
that minors who experience family rejection based on their sexual
orientations face especially serious health risks.
11.Arguments in Opposition. The California Psychological Association
(CPA) opposes this bill unless it is amended. Specifically, they
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state that the professional guilds have researched the efficacy and
purpose of SOCE and have passed resolutions based on that data and
research. They go on to state "Each profession has a national
organization with a prescribed Code of Ethics, as well as state
organizations and licensing boards to which they report and weigh in
on professional and ethical conduct. The statutory ban on types of
therapy is not the right venue and there is very little precedent in
state law to make an outright ban on a specific type of therapy."
The CPA believes that this bill would micromanage the work of
individual therapists. The CPA is willing to support the bill if it
removes the outright ban on SOCE for minors and if the informed
consent form is simplified.
In a letter jointly authored by the California Psychological
Association , California Association for Licensed Professional
Clinical Counselors, California Psychiatric Association and
California Association of Marriage and Family Therapists , the
organizations state their intent to oppose the bill unless it is
amended. Specifically, they cite a number of technical wording
changes that should occur to ensure that the facts about the
definition, history and the professional associations' positions on
SOCE are accurate. They indicate that they have general concerns
about what is included in the sample informed consent language.
They also indicate that they are "?troubled by the complete ban on
SOCE treatment for minors, especially in the situation wherein the
minor legally consents to his/her own treatment free of parental or
guardian influence."
12.Suggested Author's Amendments. The Author should consider removing
a psychiatric technician under those defined as a "psychotherapist"
since it does not appear as if a psychiatric technician is permitted
within their scope of practice to provide psychotherapy.
NOTE : Double-referral to Judiciary Committee, second.
SUPPORT AND OPPOSITION:
Support:
Equality California (Sponsor)
Opposition: (Oppose Unless Amended)
California Psychological Association
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California Association for Licensed Professional Clinical Counselors
California Psychiatric Association
California Association of Marriage and Family Therapists
Consultant:Le Ondra Clark