BILL ANALYSIS                                                                                                                                                                                                    



                                                             AB 868
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          Date of Hearing:  April 23, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                 AB 868 (Ammiano) - As Introduced:  February 21, 2013
           
          SUBJECT  :  COURTS: TRAINING PROGRAMS: GENDER IDENTITY AND SEXUAL  
          ORIENTATION

           KEY ISSUE  :  SHOULD GENDER IDENTITY, SEXUAL ORIENTATION, AND  
          CULTURAL COMPETENCY AND SENSITIVITY CURRICULA BE INTEGRATED INTO  
          EXISTING JUDICIAL TRAINING PROGRAMS ENACTED THROUGH PRIOR  
          JUDICIAL COUNCIL- SPONSORED AND SUPPORTED LEGISLATION? 

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.
                                          
                                      SYNOPSIS
          
          This bill seeks to integrate gender identity, sexual  
          orientation, and cultural competency and sensitivity curriculum  
          relating to providing adequate care to lesbian, gay, bisexual,  
          and transgender (LGBT) youth into existing judicial training  
          programs enacted through prior Judicial Council-sponsored and  
          supported legislation.  The measure is designed to provide court  
          professionals with the education and training needed to better  
          understand the intricately different cultural impacts LGBT youth  
          experience.  According to the author, LGBT youth are  
          disproportionately targeted for harassment and discrimination.   
          Because training is crucial to enable legal service providers to  
          fulfill their responsibilities to provide safe and  
          nondiscriminatory care, this bill appropriately mandates that  
          gender identity, sexual orientation and cultural competency  
          curriculum relating to providing care to LGBT youth be  
          integrated into existing judicial training programs originally  
          spurred by Judicial Council-sponsored and supported legislation.  
           The bill is completely consistent with existing state policy,  
          which prohibits discrimination of or harassment of any person on  
          the basis of sexual orientation, gender identity and gender  
          expression.  The measure is supported by civil rights and  
          children's groups.  The Judicial Council has communicated some  
          concern to the Committee that such legislative efforts might  
          inadvertently intrude on the doctrine of separation of powers.   
          However this is perplexing, especially in light of the fact, as  
          noted in the analysis, that the Council has appropriately  
          supported and helped fashion several similar legislative efforts  








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          in the past regarding such timely and critically-needed training  
          programs.  The Council has committed to work with the author to  
          address any technical drafting concerns it might have with the  
          measure.  

           SUMMARY  :  Seeks to integrate gender identity, sexual  
          orientation, and cultural competency and sensitivity curriculum  
          relating to providing adequate care to LGBT youth into existing  
          judicial training programs.  Specifically,  this bill  :

          1)Requires that training programs for judges, referees,  
            commissioners, mediators, and others who perform duties in  
            family law matters include instruction in all aspects of  
            family law, including the effects of gender identity and  
            sexual orientation on family law proceedings.

          2)Requires that training programs for appointed counsel for a  
            child include instruction on cultural competency and  
            sensitivity relating to, and best practices for, providing  
            adequate care to lesbian, gay, bisexual, and transgender  
            youth.

          3)Requires that initial and ongoing training programs to all  
            persons acting as a CASA include cultural competency and  
            sensitivity relating to, and best practices for, providing  
            adequate care to lesbian, gay, bisexual, and transgender  
            youth.  
           
          EXISTING LAW  : 

          1)Requires the Judicial Council to perform various duties  
            designed to assist the judiciary, including establishing  
            judicial training programs for judges, referees,  
            commissioners, mediators, and others who perform duties in  
            family law matters that include instruction in all aspects of  
            family law, including the effects of gender on family law  
            proceedings.  (Government Code Section 68553.)

          2)Establishes the jurisdiction of the juvenile court, which is  
            authorized to adjudge certain children to be dependents of the  
            court under certain circumstances.  (Welfare and Institutions  
            Code Section 300 et seq.)

          3)Requires the court to appoint counsel if a child or nonminor  
            dependent is not represented by counsel.  The Judicial Council  








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            shall promulgate rules and guidelines that establish, among  
            other things, training requirements for appointed counsel for  
            children.  (Welfare and Institutions Code Section 317 (c).)   

          4)Requires the Judicial Council, through its rules and  
            regulations, an initial and ongoing training program for all  
            persons acting as a CASA that covers various topics,  
            including, but not limited to, dynamics of child abuse and  
            neglect, social service systems, and child development.   
            (Welfare and Institutions Code Section 102(d).)  

          5)Makes it an unlawful employment practice for an employer or  
            other covered entity to refuse to hire or employ a person  
            because of the race, religious creed, color, national origin,  
            ancestry, physical disability, mental disability, medical  
            condition, genetic information, marital status, sex, gender,  
            gender identity, gender expression, age, or sexual orientation  
            of any person.  (Government Code Section 12940(a) emphasis  
            added.)   

          6)Makes it unlawful for any housing accommodation to  
            discriminate or harass any person because of the race, color,  
            religion, sex, gender, gender identity, gender expression,  
            sexual orientation, marital status, national origin, ancestry,  
            familial status, source of income, disability, or genetic  
            information of that person.  (Government Code Section 12955(a)  
            emphasis added.)  

          7)Declares that is the policy of the state that all children in  
            foster care shall have the right to not be subjected to  
            discrimination or harassment on the basis of actual or  
            perceived race, ethnic group identification, ancestry,  
            national origin, color, religion, sex, sexual orientation,  
            gender identity, mental or physical disability, or HIV status.  
             (Welfare and Institutions Code Section 16001.9(a)(23)  
            emphasis added.)  

          8)Requires training for administrators of a group home facility,  
            licensed foster parents, and relative or nonrelative extended  
            family member caregivers to also include instruction on  
            cultural competency and sensitivity relating to, and best  
            practices for, providing adequate care to lesbian, gay,  
            bisexual, and transgender (LGBT) youth in out-of-home care.   
            (Health and Safety Code Section 1522.41(c)(1)(I).)  









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           COMMENTS  :  This bill seeks to integrate gender identity, sexual  
          orientation, and cultural competency and sensitivity curriculum  
          relating to providing adequate care to lesbian, gay, bisexual,  
          and transgender (LGBT) youth into existing judicial training  
          programs.  This bill is designed to provide court professionals  
          with the education and training needed to better understand the  
          intricately different cultural impacts LGBT youth experience.  

          The author states:

               LGBT youth are disproportionately targeted for  
               harassment and discrimination in the child welfare  
               system.  This abuse is perpetrated not only by youth  
               peers, but in some cases by facility staff, and other  
               service providers [including] foster parents, relative  
               caregivers, and the courts.  By providing judges,  
               court appointed [youth counsel] and CASAs with  
               training specific to LGBT youth and guidance on proper  
               measures the courts should take to ensure a supportive  
               and safe environment, we can reduce the discrimination  
               that some LGBT foster youth experience and impose  
               outcomes for these youth.

          According to information provided by the author, there is a  
          disproportionate amount of LGBT youth in foster care because of  
          the additional discrimination and abuse LGBT youth face in their  
          families of origin and in their communities.  While it is  
          impossible to determine the exact number of LGBT youth in the  
          foster care system, recent studies suggest that LGBT youth make  
          up almost 18% of the total foster youth population.  However,  
          the actual percentage may be even higher since many do not  
          disclose their gender identity or sexual orientation for fear of  
          continued discrimination and harassment.  

           Existing Court Employee/Personnel Training Programs  .  Current  
          law, supported previously by the Judicial Council, requires that  
          the Judicial Council implement training programs for judges,  
          referees, commissioners, mediators, and others who perform  
          duties in family law matters that include instruction in all  
          aspects of family law, including the effects of gender on family  
          law proceedings.  This bill requires that the training also  
          include the effects of gender identity and sexual orientation on  
          family law proceedings.  Additionally, training conducted by the  
          Judicial Council for appointed counsel for a child who is not  
          represented by counsel in juvenile dependency proceedings, under  








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          the bill, would be required to include a curriculum that also  
          includes instruction on cultural competency and sensitivity  
          relating to, and best practices for, providing adequate care to  
          LGBT youth.  Likewise, initial and ongoing training required for  
          persons acting as a CASA covers various topics, including but  
          not limited to child development, under the bill, would be  
          required to include a curriculum that also includes instruction  
          on cultural competency and sensitivity relating to, and best  
          practices for, providing adequate care to LGBT youth.  
           
          This Measure Is Completely Consistent With Existing State  
          Policy, Which Prohibits Discrimination Of Any Person On The  
          Basis Of Sexual Orientation, Gender Identity And Gender  
          Expression  .  California's Fair Employment and Housing Act  
          prohibit discrimination or harassment on the basis of, including  
          but not limited to, sexual orientation, gender identity and  
          gender expression.  Additionally, under the Foster Care  
          Anti-Discrimination Act of 2003, for example, all foster youth  
          in California have the right to have fair and equal access to  
          all available child welfare services, placement, care,  
          treatment, and benefits, and to not be subjected to  
          discrimination or harassment on the basis of, including but not  
          limited to, sexual orientation and gender identity.  (See  
          Welfare and Institution Code  16001.9(a)(23).)  Because  
          training is crucial to enable service providers to fulfill their  
          responsibilities to provide safe and nondiscriminatory care,  
          placement and services to foster youth, existing law mandates  
          initial and ongoing training for all group home administrators,  
          licensed foster parents, relative or nonrelative extended family  
          member caregivers, and department licensing personnel.  (See  
          Health and Safety Code Section 1522.41.)  

          Furthermore, this measure is consistent with AB 1856 of 2012  
          (Ammiano), which required the training for administrators of a  
          group home facility, licensed foster parents, and relative or  
          nonrelative extended family member caregivers to also include  
          instruction on cultural competency and sensitivity relating to,  
          and best practices for, providing adequate care to LGBT youth in  
          out-of-home care.  This bill extends these training requirements  
          to judicial employees.  

           Judicial Council Expressed Separation of Powers Concerns:   Staff  
          of the Judicial Council of California has communicated some  
          concerns that this measure may somehow violate the separation of  
          powers doctrine by fleshing out additional training components  








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          contained in current law.  However this is perplexing,  
          especially in light of the fact that the Council has  
          appropriately supported and helped fashion several similar  
          legislative efforts in the past regarding such timely and  
          critically-needed training programs.  For example, SB 1209  
          (Roberti), Chap. 1134, Stats. 1987, required the Judicial  
          Council to establish judicial training programs that includes  
          instruction in all aspects of family law, including the effects  
          of gender on family law proceedings, for judges, referees,  
          commissioners, mediators and others as deemed appropriate who  
          perform duties in family law matters.  Not only does the  
          legislative history of SB 1209 indicate that the Council did not  
          raise at that time any opposition or concerns of potential  
          violations of the doctrine separation of powers, instead, it  
          reflects that the Council strongly supported SB 1209 and argued  
          that the measure was completely consistent with the  
          recommendations proposed by the Council's own Committee on  
          Gender Bias, which recommended, among other things, an  
          improvement of judicial education in gender bias issues and  
          integrating education on gender bias issues into judicial  
          training programs.  (See Assembly Committee on Judiciary SB 1209  
          (Roberti) Bill Analysis, July 15, 1987.)  Thus that training  
          mandate legislation had the strong support of the Judicial  
          Council.

          Subsequently, AB 2845 (Connolly) Ch. 688, Stats. 1994 similarly  
          mandated the Judicial Council to integrate instruction on the  
          effects of allegations of child abuse or neglect into its  
          then-existing family law judicial training programs without any  
          opposition or concerns expressed by the Council about the  
          doctrine of separation of powers.  

          Like SB 1209 and AB 2485 before it, both mandated training  
          requirements supported by the Judicial Council, the author has  
          expressed hope that the Council will work with him to support  
          this measure as well. 

           ARGUMENTS IN SUPPORT  :  The National Association of Social  
          Workers, California Chapter which represents over 10,500  
          professional social workers in California, in support of the  
          measure, states that:

               Families are becoming increasingly diverse.  Gender  
               identity and sexual orientation are important  
               dimensions of diversity.  Furthermore, there are  








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               people who do not have knowledge of issues that impact  
               members of the LGBT community.  It is important that  
               people who perform family law matters understand this  
               diversity.  By ensuring that training includes the  
               effects of gender identity and sexual orientation on  
               family law proceedings, that state protects families  
               from the effects of discrimination.  

          Equality California, the largest LGBT rights organization  
          in California, in strong support of the measure, writes:

               By providing judges, children's attorneys, and CASAs  
               with training specific to LGBT youth and guidance on  
               the proper measures the courts should take to ensure a  
               supportive and safe environment, we can reduce the  
               discrimination that some LGBT foster youth experience  
               and improve outcomes for these youth.
           
          Prior Related Legislation :  As noted above, AB 1856 (Ammiano),  
          Chap. 639, Stats. 2012, required the training for administrators  
          of a group home facility, licensed foster parents, and relative  
          or nonrelative extended family member caregivers to also include  
          instruction on cultural competency and sensitivity relating to,  
          and best practices for, providing adequate care to LGBT youth in  
          out-of-home care.

          AB 2845 (Connolly) Ch. 688, Stats. 1994, as noted above,  
          required Judicial Council to integrate instruction on the  
          effects of allegations of child abuse or neglect into its  
          then-existing family law judicial training programs.

          SB 1209 (Roberti) Chap. 1134, Stats. 1987, as noted above,  
          required Judicial Council to establish judicial training  
          programs that includes instruction in all aspects of family law,  
          including the effects of gender on family law proceedings for  
          judges, referees, commissioners, mediators, and others as deemed  
          appropriate who perform duties in family law matters.  

          REGISTERED SUPPORT/OPPOSITION:

          Support

           National Association of Social Workers-California Chapter
          Children's Law Center of California
          Equality California








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          Eight Individuals

           Opposition

           California Catholic Conference

           Analysis Prepared by  :  Drew Liebert and Rebecca Kramer / JUD. /  
          (916) 319-2334