BILL ANALYSIS Ó
AB 868
Page 1
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. /
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