Arkansas lawmakers gave the initial OK Tuesday to a new ethics rule that would allow counselors to cite their conscience to avoid treating a current or prospective client.
During a meeting of the Arkansas Legislative Council's Administrative Rules and Regulations Subcommittee, lawmakers did not object to a proposed "conscience clause" to be incorporated into soon-to-be-adopted ethics guidelines for the roughly 2,800 counselors working in state.
The clause -- which was endorsed by the Board of Examiners in Counseling earlier this year -- said no counselor will be sanctioned for referring away a client because of conscientious objections of the counselor stemming from any "ethical, moral or religious principle."
Tennessee passed a law earlier this year that prohibited the sanctioning of counselors for refusing service to those who posed an affront to their religious or moral values -- a law that has been criticized for being discriminatory against gays. In contrast, Arkansas counselors would be required to seek their own counseling about their objections and be compelled to find a way to overcome those objections before referring the client to another provider.
The board's head, Michael Loos, said that in the past, counselors could refer a client, but the newly formed code of ethics from the American Counseling Association prohibits such referrals predicated on deeply held beliefs.
Loos said this proposed state rule was a step to find a middle ground between the new national standards and a law like Tennessee's.
"We don't want to attack the [American Counseling Association's] code of ethics at all. That guides our professional conduct. We also don't want to adversely affect state laws about freedom of religious practice and beliefs," Loos said. "You can't treat a discriminatory issue by being discriminating."
But discrimination is exactly what the rule allows, according to the head of the state chapter of the American Civil Liberties Union, Rita Sklar.
The new rule would allow counselors to "put themselves first," Sklar said, arguing that it confounds the distinction between religious beliefs and professional duties.
"This rule is about using religion to discriminate, plain and simple, to discriminate and to put a client in harm's way, both of which are in opposition to the mandate of mental health professionals," Sklar wrote in an email. "If your personal views about gender identity, for instance, are so strong that you can't possibly treat a suicidal transgender student, you should not be treating that child. But you should not see this rule as I think it will be seen: a green light to turn away someone in need that you disapprove of, just because of your religious beliefs."
The rule is set to go into effect if it gets final approval from the Arkansas Legislative Council. Any complaints filed against counselors who invoked the protection would be reviewed by the Board of Examiners.
The new state rule proposal says that counselors are not allowed to discriminate, and a counselor can refer a client only if it's clear that the counselor's religious objections would prove a negative influence in treatment and if that counselor has sought some form of "self-examination," Loos said.
That stands in contrast to the American Counseling Association's own code, which prohibits such referrals "based solely" on a "personally held value ... beliefs, and behaviors." The national code also requires counselors to seek help and training to prevent "imposing their values" onto clients, especially "when the counselor's values are inconsistent with the client's goals or are discriminatory in nature."
Officials from the American Counseling Association did not return a call for comment Tuesday.
Jerry Cox, president of the Family Council, said his group hasn't been involved with the Board of Examiners' proposal, but he said that similar debates and differences will emerge in the near future.
"If I just looked down the road, I think you're going to see greater discussion about the rights of conscience and how you balance that with people being able to maintain certain goods and services," Cox said. "It's hard to tell where [that debate will happen] because it's hard to tell where the culture is headed right now."
In 2015, Arkansas passed the Religious Freedom Restoration Act, which was designed to protect Arkansans against any government action that would unduly burden their religious practices and beliefs.
Sklar said religious liberty is one thing, but it doesn't protect a right to discriminate.
"Institutions like schools and hospitals that employ and serve people of many faiths, and provide health, educational, and other social services should play by public rules," Sklar wrote. "Religious freedom in America means that every person has the right to his or her own personal, religious beliefs. It is not a free pass that people can use whenever they want to discriminate against others."
After Tuesday's meeting, Loos said the rule is not about discrimination but is about ensuring that both clients and practitioners can engage in a dialogue to get the best outcome for both.
The issue is stirring some controversy within the counseling community, according to Loos. But he said he doubted there would be many, if any, complaints filed with his board over a counselor's objections to treatment over matters of conscience.
"It's not as big a deal as it could be," he said. "But we want to be prepared to take charge and responsibility for it."
In May, the American Counseling Association moved its planned annual conference out of Nashville because of that state's recently passed law. And just a week ago, two gay-rights activists filed suit challenging the Tennessee law's constitutionality.
Metro on 06/15/2016