BILL ANALYSIS                                                                                                                                                                                                    



                                                                      



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          |SENATE RULES COMMITTEE            |                  SB 1172|
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                                 THIRD READING


          Bill No:  SB 1172
          Author:   Lieu (D)
          Amended:  4/30/12
          Vote:     21

           
           SENATE BUSINESS, PROF. & ECON. DEV. COMM.  :  5-3, 4/23/12
          AYES:  Price, Corbett, Correa, Hernandez, Vargas
          NOES:  Emmerson, Strickland, Wyland
          NO VOTE RECORDED:  Negrete McLeod

           SENATE JUDICIARY COMMITTEE  :  3-2, 5/8/12
          AYES:  Evans, Corbett, Leno
          NOES:  Harman, Blakeslee


           SUBJECT  :    Healing arts:  sexual orientation change 
          efforts

            SOURCE  :     Equality California
                       Mental Health America of Northern California
                       National Center for Lesbian Rights


           DIGEST  :    This bill prohibits psychotherapists from 
          providing sexual orientation change efforts without the 
          informed consent of adult patients, and allows a cause of 
          action to be pursued by patients or former patients against 
          a psychotherapist. 

           ANALYSIS  :    

          Existing law:
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          1. 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).  
             (Business and Professions Code (BPC) Section 2099, 
             Section 2928, Section 2940, Section 4980.40.5, and 
             Section 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 Section 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 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 Section 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 
             Section 4999.20 (b))


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          6. Permits MFTs to use applied psychotherapeutic techniques 
             to enable individuals to mature and grow within marriage 
             and the family.  (BPC Section 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 Section 4999.20 (b))

          This bill:

          1. 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.

          2. Defines "psychotherapist" as a physician and surgeon 
             specializing in the practice of psychiatry, a 
             psychologist, a psychological assistant, 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.

          3. Defines "psychotherapy" as the professional assessment, 
             evaluation, treatment, or counseling of a mental or 
             emotional illness, symptom, or condition by a 
             psychotherapist.

          4. 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, 

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             attractions, or conduct toward minors or relatives or 
             regarding sexual activity with another person without 
             that person's consent.

          5. 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.

          6. Defines "therapeutic relationship" as the relationship 
             that exists during the time the patient receives 
             psychotherapy.

          7. Prohibits a psychotherapist, as defined, from performing 
             sexual orientation change efforts in the absence of 
             informed consent of the adult patient.

          8. 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.

          9. 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.

          10.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.

          11.Provides that a cause of action may be brought against a 
             psychotherapists by a patient, former patient, or others 
             as specified if the sexual orientation change efforts 
             were conducted without first obtaining informed consent 

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             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.

          12.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.

          13.Specifies the time for which commencement of the action 
             may be brought.

          14. Provides findings and declarations of the Legislature 
             including that an individual's sexual orientation, 
             whether homosexual, bisexual, or heterosexual, is not a 
             disease, and that sexual orientation change efforts can 
             pose critical health risks, as described. 

          15.Provides statements of psychological, psychiatric, 
             medical, and other associations' regarding their 
             disproval of therapy aimed at changing sexual 
             orientation or therapy based on the assumption that 
             homosexuality is a mental disorder. 

          16.States that California has a compelling interest in 
             protecting the lives and health of lesbian, gay, and 
             bisexual people.

           Comments  

          According to the author's office, the intent of this bill 
          is to limit deceptive therapies that are harmful to minors 
          by mental health providers.  This 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 lesbian, gay, bisexual, 
          and transgender youth by preventing these types of 
          therapies that are potentially dangerous as well as making 
          adults aware of the potential harms associated with sexual 

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          orientation change therapies. 

           Background  

           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 
          Section 2903)

          Across the United 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, 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:  

           Board Certified Psychiatrists (Doctor of Medicine or 
            Doctor of Osteopathic Medicine with specific training in 
            psychotherapy and psychopharmacology) 
           Licensed Clinical Psychologists
           Licensed Clinical Social Workers
           Licensed Marriage and Family Therapists
           Licensed Professional Clinical Counselors
          
           History of Homosexuality and the American Psychiatric 
          Association (APA)  .   A number of research studies on 
          homosexuality conducted in the 1940s and 1950s, combined 
          with protests during the civil rights movement of the 1960s 
          and 1970s led to the reformation of how homosexuality was 

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          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.  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-1980s 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 EDH was removed from DSM-III-R in 1987. 
          
           History of Homosexuality and the World Health Organization 

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          (WHO)  .  In 1992, 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.  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."   

          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."
            
           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 APA 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.

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          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))

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  5/8/12)

          Equality California (co-source)
          Mental Health America of Northern California (co-source)
          National Center for Lesbian Rights (co-source)
          California Communities United Institute
          Coming Out Into Light

           OPPOSITION  :    (Verified  5/8/12)

          American Association for Marriage and Family Therapy 
          California Association for Licensed Professional Clinical 
          Counselors 
          California Association of Marriage and Family Therapists 
          California Psychiatric Association 
          California Psychological Association 
          Pacific Justice Institute

           ARGUMENTS IN SUPPORT  :    In support of this bill, Equality 
          California writes, "Sexual orientation change efforts pose 
          critical health risks to lesbian, gay, and bisexual people, 
          including depression, shame, decreased self-esteem, social 
          withdrawal, substance abuse, risky behavior and 
          suicidality.  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 

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          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."

           ARGUMENTS IN OPPOSITION  :    The California Psychological 
          Association (CPA), in their opposition to this bill, states 
          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 
          micromanages the work of individual therapists.  The CPA is 
          willing to support this bill if it removes the outright ban 
          on SOCE for minors and if the informed consent form is 
          simplified.  
           

          JJA:mwk  5/10/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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