BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 868 (Ammiano)
          As Introduced
          Hearing Date: June 11, 2013
          Fiscal: Yes
          Urgency: No
          NR


                                        SUBJECT
                                           
                Courts: training programs: gender identity and sexual  
                                     orientation

                                      DESCRIPTION  

          This bill would require that the Judicial Council establish  
          training programs for judges and others who perform duties in  
          family law matters, on the effects of gender identity and sexual  
          orientation in family law proceedings. 

          This bill would also require the Judicial Council to create  
          training standards on cultural competency and sensitivity  
          relating to, and best practices for, providing adequate care to  
          lesbian, gay, bisexual, and transgender youth for counsel in  
          juvenile court and appointed special advocates (CASAs).

                                      BACKGROUND  

          Lesbian, gay, bisexual, and transgender (LGBT) youth are  
          significantly over represented in the juvenile justice system.   
          Although LGBT youth only represent five to seven percent of the  
          nation's overall youth population, they compose nearly 15  
          percent of those currently in the juvenile justice system.  
          (Jerome Hunt and Aisha C. Moodie-Mills, The Unfair  
          Criminalization of Gay and Transgender Youth, June 29, 2012.)   
          Yet, despite the disproportionality high rates of LGBT youth  
          entering the child welfare system, it is not clear that schools,  
          law enforcement officers, or the courts are equipped to deal  
          with the unique experiences and challenges this particular  
          population faces. 

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          Research shows that LGBT youth in the child welfare system are  
          twice as likely to have experienced family conflict, child  
          abuse, and homelessness as other youth. (Irvine, We've had three  
          of them: Addressing the invisibility of lesbian, gay, bisexual,  
          and gender non-conforming youths in the juvenile justice system,  
          (2010) 19 Colum. J. Gender & L. 675.)  Many of these youth leave  
          their homes to escape conflict or emotional and physical abuse,  
          but often they are pushed out of the home by their own families.  
           Those who escape hostility and abuse at home are very likely to  
          end up homeless. In fact, LGBT youth represent up to 40 percent  
          of the homeless youth population, even though they compose less  
          than seven percent of the youth population overall. (Jeff  
          Krehely, Nico Sifra Quintana,and Josh Rosenthal, On the Streets,  
          Washington: Center for American Progress, 2010.)  Once in the  
          child welfare system, LBGT youth are often at risk of biases and  
          discrimination, and of being inappropriately classified and  
          according to their birth sex rather than by their gender  
          identity. 

          Seeking to address a systematic lack of training with respect to  
          the needs of LGBT youth in the foster system, last year, AB 1856  
          (Ammiano, Ch. 639, Stats. 2012) required training for group home  
          administrators, foster parents, and relative caregivers, as  
          specified, to 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  
          would further require the Judicial Council to provide similar  
          training for family law judges and others who perform duties in  
          family law, appointed counsel in juvenile court, and court  
          appointed special advocates (CASAs).

                                CHANGES TO EXISTING LAW
           
           1.Existing law  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.  (Gov. Code Sec. 68553.)
           
            This bill  would add that the training programs above must  
            include training on the effects of gender identity and sexual  
            orientation in family law proceedings.

           2.Existing law  establishes the jurisdiction of the juvenile  
                                                                      



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            court, which is authorized to adjudge certain children to be  
            dependents of the court under certain circumstances, including  
            extreme abuse or neglect. (Welf. & Inst. Code Sec. 300 et  
            seq.)

             Existing law  requires the juvenile court to appoint counsel if  
            a child or nonminor dependent is not represented by counsel.   
            Existing law requires the Judicial Council to promulgate rules  
            and guidelines that establish, among other things, training  
            requirements for appointed counsel for children.  (Welf. &  
            Inst. Code Sec. 317 (c).)   

             This bill  would require 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.Existing law  requires the Judicial Council, through its rules  
            and regulations, to require an initial and ongoing training  
            program for all persons acting as a court appointed special  
            advocate (CASA) which covers various topics, including, but  
            not limited to, dynamics of child abuse and neglect, social  
            service systems, and child development.  (Welf. & Inst. Code  
            Sec. 102 (d).)  

             This bill  would require that the initial and ongoing training  
            programs for all CASAs include cultural competency and  
            sensitivity relating to, and best practices for, providing  
            adequate care to lesbian, gay, bisexual, and transgender  
            youth.  
          
                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author:

            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  
                                                                      



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            environment, we can reduce the discrimination that some LGBT  
            foster youth experience and impose outcomes for these youth.

           2.LGBT youth in the child welfare system
           
          This bill would require the Judicial Council of California to  
          implement training for CASAs and court-appointed counsel in  
          child welfare cases on cultural competency and sensitivity  
          relating to, and best practices for, providing adequate care for  
          LGBT youth.  This bill would also require the Judicial Council  
          to add to existing training programs instruction on the effects  
          of gender identity and sexual orientation in family law  
          proceedings.

          LGBT youth reportedly face a number of challenges and obstacles  
          after entering the juvenile system.  In support of this bill,  
          Equality California writes, "aside from physical and verbal  
          abuse and harassment, instances of unlawful discrimination  
          against LGBT youth in foster care include confiscating LGBT  
          supportive materials or prohibiting LGBT youth from receiving  
          LGBT supportive services offered through LGBT youth groups or  
          resource centers. There are also many cases of caregivers or  
          service providers refusing to use the youth's requested name or  
          pronoun, or prohibiting the youth from wearing clothing  
          consistent with their gender identity. Often, staff members  
          choose to isolate the youth from their peers in foster care or  
          transfer them to a new placement if there is harassment or  
          assault rather than resolving the underlying prejudice and  
          providing supportive services."

          AB 1856 ((Ammiano, Ch. 639, Stats. 2012); see Background) sought  
          to deal with these issues as they relate to caregivers of foster  
          youth.  However, because courts and judicial employees are in a  
          unique position to recognize issues of gender identity and  
          sexual orientation prior to placement with out-of-home  
          caregivers, this bill seeks to educate judges and  
          court-appointed advocates of foster youth.  Arguably, education  
          and training on the needs of LGBT youth will help these  
          court-appointed counsel and CASAs ensure that these youth are  
          placed in appropriate environments. 

          Staff notes that as written, this bill requires the Judicial  
          Council to implement additional training standards for judges in  
          family courts, but makes no mention of judges in the juvenile  
          courts.  Because this bill is targeted at protecting LGBT youth  
          in the foster system, the author should consider amending the  
                                                                      



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          bill as follows:

             Suggested amendment: 
           
            Welfare & Institutions Code Section 304.7 is amended to read: 

            304.7.  (a) On or before July 31, 1997, the Judicial Council  
            shall develop and implement standards for the education and  
            training of all judges who conduct hearings pursuant to  
            Section 300. The training shall include, but not be limited  
            to  : (1)  a component relating to Section 300 proceedings for  
            newly appointed or elected judges and an annual training  
            session in Section 300 proceedings; and  (2) cultural  
            competency and sensitivity relating to, and best practices  
            for, providing adequate care to lesbian, gay, bisexual, and  
            transgender youth.
           
           3.Separation of powers/covered under existing law
           
          The Judicial Council, while not taking a formal position on this  
          bill, has expressed concern that AB 848 may pave the way for  
          future bills which could impermissibly interfere with the  
          judicial branch, by allowing the Legislature to determine how  
          judicial training resources are used. The Judicial Council  
          writes:

            Under the principle of separation of powers of the three  
            co-equal branches, it is critical that each branch refrain  
            from unnecessary interference with the independent operation  
            of the others. The California judicial branch has an exemplary  
            training program overseen be the Center for Judiciary  
            Education and Research, with the active involvement of scores  
            of judges and justices who devise curricula and training  
            programs to ensure that all judges have access to the training  
            they need to be effective and unbiased jurists.  

            Because there was recognition within the branch that LGBT  
            youth who come before the juvenile courts have unique needs  
            and concerns, a reference tool was developed for juvenile  
            court judges to advise them as they address the placement  
            needs of these youth, and this information has been  
            incorporated into the Juvenile court training curriculum.   
            Thus, the requirements of [this bill] would not require the  
            branch to institute new training programs or rearrange its  
            training priorities in this instance.  However, future  
            legislation requiring training on a particular topic might  
                                                                      



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            cost the branch its ability to deploy limited training  
            resources in the manner that the branch determines is most  
            appropriate and effective. 

          It should be noted that the Legislature has mandated the  
          Judicial Council create and implement training standards on a  
          number of occasions.  For example, SB 1209 (Roberti, Ch. 1134,  
          Stats. 1987) required the Judicial Council of California to  
          establish judicial training programs in all aspects of family  
          law, including the effects of gender, for judges and others who  
          perform duties in family law.  Staff notes that a significant  
          difference between SB 1209 and this bill, is that SB 1209  
          implemented changes which had also been suggested by Judicial  
          Council's own Committee on Gender Bias.  This bill, however,  
          seems to seek a solution to a problem which Judicial Council  
          argues it has already appropriately addressed in its training  
          curriculum. 

           4.Additional concerns raised by the opposition
           
          In opposition to this bill the California Catholic Conference  
          (CCC) argues that court professionals already have extensive  
          experience dealing with these issues.  CCC writes, "this mandate  
          seems to assume that [court professionals] won't know how to  
          deal with gender and orientation issues.  That is very unlikely,  
          due to the high level of publicity surrounding these issues. ?  
          However, if the sponsor and author of this bill truly think that  
          the court professionals are untrained and unknowledgeable ? we  
          suggest private funds be sought-not public-to offer training  
          opportunities as deemed necessary by those professionals in the  
          field." 


           Support  :  Children's Law Center of California; Dependency Legal  
          Group of San Diego; East Bay Children's Law Offices; Equality  
          California; National Association of Social Workers-California  
          Chapter; two individuals

           Opposition  :  California Catholic Conference

                                        HISTORY
           
           Source :  Author

           Related Pending Legislation  :  None Known

                                                                      



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           Prior Legislation  :

          AB 1856 (Ammiano, Chapter 639, Statutes of 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, Chapter 688, Statutes of 1994) required  
          Judicial Council to collect and analyze information on the  
          effects of allegations of child abuse or neglect and integrate  
          into its family law judicial training programs.

          SB 1209 (Roberti, Chapter 1134, Statutes of 1987) 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.

           Prior Vote  :

          Assembly Floor (Ayes 49, Noes 20)
          Assembly Appropriations Committee (Ayes 12, Noes 5)
          Assembly Judiciary Committee (Ayes 8, Noes 2)

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