BILL ANALYSIS Ó
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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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