In April, the Tennessee Legislature passed a bill, which the state’s governor then signed into law, allowing counselors to refuse to see any client if counseling that client involves “goals, outcomes or behaviors that conflict with the sincerely held principles of the counselor or therapist.”
The law, which is in direct opposition to the ACA Code of Ethics, was pushed through despite the concerted efforts of the American Counseling Association, the Tennessee Counseling Association (TCA) and other opponents. Even more alarming is that the legislation could represent only the beginning of efforts to pass similar laws in other states.
In response to the controversial law, the ACA Governing Council made the decision to move the 2017 ACA Conference & Expo out of Nashville and relocate it to San Francisco.
“We agreed it was important to move the conference because the Tennessee governor signed a bill into law that attacked our code of ethics and allowed counselors to refuse services to clients in the Tennessee communities based on their religious and personal beliefs,” explains Thelma Duffey, whose term as ACA president ends July 1. “We believed it was important that ACA take a public and powerful stance in opposition to this bill, and relocating provided us with this opportunity. We also believed it was important that we communicate our support to our members who voiced deep concerns about continuing to hold the conference in Tennessee in light of the new law. And, ultimately, we made the move based on our long-held belief of nondiscrimination and our commitment to advocacy for all people.”
The intent of Tennessee’s law is to allow counselors to discriminate against potential clients who identify as lesbian, gay, bisexual or transgender (LGBT), says ACA CEO Richard Yep. “This [is] a full-frontal attack on specific populations that some very conservative right-wing groups in the United States want to exclude from mental health services that they desperately need,” he says. “The new law will permit a counselor to reject an individual simply because of that provider’s beliefs and values. ACA and its code of ethics are very clear that counselors do not bring those beliefs and values into a counseling relationship.”
In addition to being unethical, the law is harmful to those looking for help, Yep emphasizes. “For someone seeking the services of a mental health provider to be told that because of who they are, a service provider will not work with them sends an incredibly negative message of exclusion, bigotry and discrimination,” he says.
Counseling in the crosshairs
When the Supreme Court ruled in June 2015 that states must recognize the validity of same-sex marriage, it marked a significant step forward in the fight for equal rights for LGBT individuals. At the same time, it also served as a clarion call to those determined to continue discriminatory policies and attitudes.
Currently, there are nearly 200 pieces of proposed anti-LGBT legislation in the United States. Like the Tennessee law, many of these proposed pieces of legislation — and other laws that have already been passed — were born partly in reaction to the Supreme Court’s decision, notes Perry Francis, who served as chair of the Ethics Revision Task Force for the 2014 ACA Code of Ethics. ACA believes that conservative politicians and lobbying groups focused on Tennessee and the counseling profession in large part because of a prior legal case, Ward v. Wilbanks.
In 2009, a counseling student named Julea Ward was dismissed from the counseling program at Eastern Michigan University (EMU) for refusing to counsel a gay client. Ward then filed suit against EMU in U.S. District Court, asserting that the university’s counseling program violated her rights to free speech and freedom of religion. In 2010, a U.S. District Court judge granted summary judgment in favor of EMU.
Ward was represented by the Alliance Defending Freedom (ADF), a nonprofit law firm that Art Terrazas, ACA’s director of government affairs, describes as the conservative equivalent of the American Civil Liberties Union. ADF is connected to the Family Research Council, a conservative lobbying organization. These organizations influence the Family Action Council of Tennessee, whose president, David Fowler, is a former Tennessee state senator who was a driving force behind Senate Bill (SB) 1556 and House Bill (HB) 1840. A group of conservative state legislators sponsored the bills, which eventually became the law signed by the governor.
The counseling profession also made an inviting target because the ACA Code of Ethics explicitly focuses on protecting clients by not imposing a counselor’s viewpoint, explains Lynn Linde, ACA’s senior director for the Center for Counseling Practice, Policy and Research. Linde, an ACA past president who also served on the Ethics Revision Task Force, notes that this focus on the client is unique to ACA. Although other organizations’ ethics codes implicitly prohibit mental health professionals from imposing their personal beliefs on clients, she says, the ACA Code of Ethics is explicit in this prohibition.
The legislation was introduced in the Tennessee Senate in January and passed with very little discussion, according to TCA President Kat Coy. It then moved on to the Tennessee House of Representatives. At that point, TCA rallied its members to contact their legislators to express their opinions on the bill, Coy says.
As the legislation was being debated in the Tennessee House, TCA and ACA worked together to provide expert testimony on the harmful nature of the bill and to educate individual legislators about the counseling profession, its code of ethics and the danger the legislation posed to those seeking mental health services in Tennessee. Although the law states that any counselor who turns away a client because of personal beliefs must give the client a referral, Linde notes that Tennessee has a critical shortage of mental health professionals. That raises questions about whom a counselor can refer to if he or she is the only mental health professional within 150 miles and, more important, where prospective clients are supposed to go to get the help they need, she says.
Linde and others testified about the harm this could do to potential clients. In the process, they also tried to clear up some mistaken beliefs that Tennessee legislators held. For example, Lisa Henderson, who chairs TCA’s public policy committee, says one of the first arguments she encountered was that because Tennessee is a sovereign state, it would not be dictated to by the federal government. Henderson had to explain that ACA is a professional organization that is not connected in any way to the federal government.
Linde and others testified that ACA’s opposition to the legislation was not about controlling individual counselors but rather concern for the harm that could be done to prospective clients. In addition, the law would be in direct opposition to the ACA Code of Ethics, which all member counselors are obliged to follow. Many states — including Tennessee — base their licensure standards of practice all or in part on the ACA ethics code.
An ethical dilemma
A common claim by those who support the law is that by asking counselors not to impose their beliefs on clients, the ACA Code of Ethics is actually demanding that counselors give up certain personal beliefs. That is an incorrect assumption, Linde says.
“Nobody is asking us to give up who we are the moment we walk into a counseling session,” she emphasizes. Counselors do not have to change their beliefs, but they must not impose those beliefs on clients, she continues.
“We, as professional counselors, seek to engage our clients in a genuine, thoughtful, caring relationship,” says Francis, a professor of counseling and coordinator of the counseling clinic in the College of Education Clinical Suite at EMU. “In order for me to connect to a client, I need to know who I am and what my personal values are so that I can be genuine in the room. At the same time, the profession is saying to counselors that you also enter the room with the values of the counseling profession, which are clearly delineated in the code of ethics.”
Francis says a counselor’s responsibility is spelled out in the ACA Code of Ethics in Standard A.4.b. (Personal Values): “Counselors are aware of — and avoid imposing — their own values, attitudes, beliefs and behaviors. Counselors respect the diversity of clients, trainees and research participants and seek training in areas in which they are at risk of imposing their values onto clients, especially when the counselor’s values are inconsistent with the client’s goals or are discriminatory in nature.”
Many of those who supported Tennessee’s “sincerely held principles” legislation asserted that ACA changed its code of ethics regarding counselors’ personal values during the 2014 revision in response to Ward v. Wilbanks. Francis and Linde say that assertion is false.
“We clarified what has [long] been there,” Linde says. From the 1988 version onward, the ethics code has stated that counselors can refer clients only when a client is no longer progressing, when the counselor’s services are no longer required because the client has met his or her goals or when counseling no longer serves the client, Linde explains.
Anticipating that some might try to argue that a counselor who holds views diametrically opposed to what the client believes is not “competent” to counsel that client, the 2014 revision of the ethics code clarified the issue of referral, Linde and Francis explain. Standards A.11.a. and A.11.b. were added to further delineate what constitutes competency.
v A.11.a. (Competence Within Termination and Referral): “If counselors lack the competence to be of professional assistance to clients, they avoid entering or continuing counseling relationships. Counselors are knowledgeable about culturally and clinically appropriate referral resources and suggest these alternatives. If clients decline the suggested referrals, counselors discontinue the relationship.”
v A.11.b. (Values Within Termination and Referral): “Counselors refrain from referring prospective and current clients based solely on the counselor’s personally held values, attitudes, beliefs and behaviors. Counselors respect the diversity of clients and seek training in areas in which they are at risk of imposing their values onto clients, especially when the counselor’s values are inconsistent with the client’s goals or are discriminatory in nature.”
In addition, Standard A.4.b. was expanded to include the necessity of obtaining training and multicultural competency, Francis says.
Linde says ACA’s official position is that although counselors in Tennessee are now legally able to refer clients on the basis of personal beliefs, that action still goes against the profession’s code of ethics. Accordingly, ACA will still sanction any member who engages in such behavior, Linde emphasizes. This also applies to counselors-in-training at university or college programs.
Linde testified in detail for legislators on the issue of competence. “Counselors can’t refer due to client characteristics,” she says. “It’s on [the counselor] if you come from another country and I don’t know anything about you or your culture. I have to educate myself on your culture.”
However, if a client comes to a counselor with a problem or issue that the counselor is not qualified to treat based on his or her individual scope of practice, then referral is appropriate. For example, Linde says, a client might present to a counselor for treatment of depression. In the course of therapy, the counselor might realize that the heavy drinking the client is engaging in is due to a chronic substance abuse problem, not just self-medication. Unless the counselor is specially credentialed to provide substance abuse counseling, the counselor would be operating outside of his or her scope of practice to offer those services. In this case, the counselor should instead refer the client to another counselor who is qualified to provide in-depth substance abuse services.
Henderson, a private practitioner in the Nashville area, says that when she met with individual legislators about the “sincerely held principles” bills, it appeared that some of them already had their minds made up. When presented with the ethics testimony, she says, many of these legislators argued that it was impossible for counselors to separate themselves from their beliefs. They also rejected a primary counseling value of putting clients first, Henderson says.
“I kept reminding them that these are complex issues,” says Henderson. She points out that even though it takes years to become a professional counselor, the legislators were making decisions about the counseling profession based on a few hours’ worth of knowledge gleaned in hearings and meetings.
During efforts to defeat the legislation, Henderson acknowledges that she also encountered some counselors in Tennessee who supported it. The most common reason given was the counselors’ religious beliefs, she says. For example, one counselor told Henderson that he could not separate his religious beliefs from his counseling values. So, if a client came to him for treatment of alcoholism and wanted to use harm reduction, the counselor — who believes it is wrong to drink or take drugs — would only agree to treat using complete abstinence. Another counselor said she would not be able to counsel someone committing adultery unless that person pledged to end the adulterous relationship.
Francis says another common explanation or justification for values-based referrals is that a counselor who has a conflict with a client’s lifestyle or choices might not provide the best service or even cause harm. “This is a perfectly valid concern and is upheld in the ethics,” he says. “We don’t want to cause harm. We don’t want to put the client in any sort of jeopardy.”
However, Francis explains, the flaw in that reasoning is in assuming that the problem resides with the client. Instead, it is the counselor who needs to make adjustments and seek supervision, consult with trusted colleagues or get additional training to better serve the client.
Ultimately, it is those seeking mental health services who will be harmed by the passage of the legislation. “In rural Tennessee, or anywhere in the state that is listed as a mental health shortage area, there simply are not enough providers,” says Catherine B. Roland, who begins serving as ACA president July 1. “So, if a counselor is allowed to pick and choose who they will see simply due to a strongly held belief or value, those most in need of services will have nowhere to turn.”
The law is also written very broadly, which leaves it open to individual interpretation, Terrazas notes. “Initially the bill covered religious beliefs, but the wording was changed to ‘sincerely held principles,’ which could be broadened to include almost anything that a counselor disagrees with,” he says.
Duffey agrees. “People seeking mental health services can potentially be affected in any number of adverse ways as a result of this law,” she says. “For one, they are now aware that a law exists that protects counselors from working with them if the counselors’ beliefs conflict with who they are. That is profound. In a time where so much progress is being made with respect to equality and human rights, this bill may bring a painful resurgence of old feelings of rejection and discrimination and feelings of social exclusion.”
Current and future implications
Although those who defend the law often cite religious concerns for doing so, TCA leaders say many of their members who are Christian counselors have vowed not to use the law to discriminate.
In fact, other counselors have cited their religious beliefs as a reason not to discriminate. “[The Tennessee law] is an affront to the heart of Christianity,” says Ryan Thomas Neace, an ACA member and counselor practitioner in St. Louis. “The Scriptures reveal that those whom the religious folks said weren’t towing the line — not observing religious rituals or laws, not living up to sexual and moral purity codes by having sex too much or with the wrong people or drinking too much, etc. — those people were often far more hungry for genuine, transformative encounter than the religious folks themselves. This is why Jesus kept their company so much.”
Neace, who has been practicing for almost 14 years, cites his experience as an example of how harmful the law is to clients and to the counseling profession’s ideals. “By the time many of my LGBTQ+ clients show up at my office, they’ve already been hounded by unsupportive, and often abusive, friends, family, religious communities and sadly, professionals,” he says. “This law makes the sacred space that we offer as counselors less sacred and less spacious.”
There are already many barriers that discourage potential clients from reaching a counselor’s office, Neace says, and research suggests that LGBT individuals face even more obstacles. In Neace’s opinion, the obstacles the Tennessee legislation has erected for LGBT clients “are perhaps more akin to land mines.”
Unfortunately, Neace says, some counselors don’t seem to comprehend the precedent — and the slippery slope — that this law sets. “In a more long-term sense, it literally opens the door for clients to be denied therapy if they in some way represent an affront to anything counselors sincerely or principally believe,” he says. “This actually could, in my case, extend to me as a Christian. Someone could refuse to see me because of my religious beliefs. It’s hard to understand that religious folks who back this bill don’t see that it ushers in opportunities for the very persecution they hope to avoid.”
Keith Myers, a licensed professional counselor and ACA member, wrote an opinion piece for USA Today in May in which he highlighted some of the potential consequences of the law that its advocates might not have anticipated. “Imagine that Joe, a veteran who served our country faithfully, comes to counseling at a rural Tennessee practice,” Myers wrote. “He talks about his strong opinions concerning the Islamic State terrorist group and ways the military should be intervening. His male counselor happens to be a pacifist. This counselor has strong feelings against any kind of war or any type of military intervention against ISIL. Before the new law, he would have felt obligated to help Joe. Now, he refers Joe to another counselor 25 miles away from where Joe resides. Joe becomes angry and ultimately avoids getting help. The harm has been done.”
Henderson has already seen an effect. “After the news broke that the bill had been signed into law, one of my own clients asked if I would continue to see her now that I don’t have to,” Henderson recounts. “And this is a person who I already have an existing relationship with.”
One of Henderson’s counseling colleagues shared another story related to the passage of the law. During a client intake, the client asked questions about how the counseling process worked but also asked how long it would be before the counselor might decide not to work with the client any longer. The client wanted to know what he would do if that happened.
Counselors who practice in other states might question why they should be overly concerned about what is happening in Tennessee. “Quite simply, if it can happen in Tennessee, it can happen in any state in the union, making it an issue for all counselors,” Roland says. “One only needs to realize that the anti-LGBTQ legislation in so many states continues to grow. Those who believe in an anti-LGBTQ agenda are passionate and are using the legislatures and courts in this country to make their voices heard. ACA stands in support of the counseling profession and the consumers who seek our services — all consumers.”
The law could also contribute to misperceptions that go beyond what is happening in Tennessee. “This bill is problematic for counselors who hold religious beliefs and also support our code of ethics,” Duffey says. “The discussions around this issue can create misunderstandings and generalizations, with suggestions that faith-based counselors are, in principle, discriminatory. This is, of course, unfair and inaccurate, and runs the risk of creating division where it doesn’t exist.”
Terrazas says there is a danger that similar legislation could be proposed in other states and notes that ACA Government Affairs is maintaining a very watchful eye.
With the “sincerely held principles” legislation being signed into law in Tennessee, what happens next? ACA and TCA are taking a number of steps.
“We are certainly starting to pick up the pieces of what has transpired over the past several months and focusing on the future,” Coy says. “We are aware that there are varying opinions in Tennessee, and we will need to navigate through all of that in the coming months. Our ultimate goal shall remain meeting the needs of our membership and focusing on the needs of our clients.”
At July’s state leadership institute, TCA plans to focus on educating its members about what happened and encouraging them to in turn educate the public on the issues, Coy says. TCA’s annual conference in November will be devoted in part to additional education and training and to deciding what the association’s next steps should be.
When she was interviewed near the end of May, Coy said the rest of TCA’s plan of action was under development. “We will be sending out a survey to membership asking them what they want,” she said. “Our initial ideas will be training in the form of webinars, single-event training opportunities, podcasts, training bulletins and continued membership development.”
On the national level, Terrazas says that ACA Government Affairs is encouraging counselors in all states to get to know their legislators. The purpose is not only for counselors to be aware of what bills are being proposed in their states but also to educate legislators about counseling and what counselors do, he says.
The ACA leadership also wants counselors in Tennessee to know that even though the 2017 ACA Conference is being relocated from Nashville, the association is not abandoning the state’s practitioners. “ACA stands ready to assist with grassroots advocacy and to provide materials to Tennessee counselors who seek resources that will help the public policy officials understand the deleterious effects of this new law on the citizens of Tennessee,”
“We will continue to work with our colleagues in Tennessee in hopes that this law can be overturned,” Roland says. But she also offers a caution: “We cannot for a moment forget about the other 49 states where efforts like these can arise quickly and without notice.”
Despite the potential damage caused by the “sincerely held principles” law in Tennessee, Duffey believes the counseling profession will eventually emerge stronger than ever. “I absolutely believe we will ultimately be stronger as a result of our decision [to relocate the ACA Conference] and the unity we are experiencing through this advocacy,” she says. “I have been heartened by the outpouring of support for the Governing Council’s decision and by the appreciation of those members who courageously shared their stories and concerns. In fact, people who often vigorously debate other issues have come together on this one — in support, with clarity and with a sense of pride.”
Does the ACA Code of Ethics trump discriminatory institutional policies? Read the July issue of the Journal of Counseling & Development, featuring three articles in the special Trends section that discuss the ethical issues raised by the practice of accrediting counseling programs at colleges and universities that use statements in their Codes of Conduct that are nonaffirming of LGBT individuals.
Laurie Meyers is the senior writer for Counseling Today. Contact her at email@example.com.
Letters to the editor: firstname.lastname@example.org