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 AB 868 Page 2 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 AB 868 Page 3 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).) AB 868 Page 4 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 AB 868 Page 5 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 AB 868 Page 6 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 AB 868 Page 7 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 AB 868 Page 8 Eight Individuals Opposition California Catholic Conference Analysis Prepared by : Drew Liebert and Rebecca Kramer / JUD. / (916) 319-2334