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)
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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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