BILL ANALYSIS Ó 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. (more) AB 868 (Ammiano) Page 2 of ? 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 AB 868 (Ammiano) Page 3 of ? 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 AB 868 (Ammiano) Page 4 of ? 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 AB 868 (Ammiano) Page 5 of ? 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 AB 868 (Ammiano) Page 6 of ? 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 AB 868 (Ammiano) Page 7 of ? 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) **************