Protecting conscience rights and professional judgment
April 18, 2019
As usual, this legislative session saw the introduction of legislation that would require some form of sexual orientation and gender identity (“SOGI”) non-discrimination. This year’s version prohibits psychologists from discriminating on the basis of SOGI. While this legislation appeals to the agreeable intention of ensuring that nobody is the target of unjust discrimination, it contains fatal flaws that trample on the professional judgment and conscience rights of psychologists.
BACKGROUND ON LB891
Sen. Patty Pansing Brooks of Lincoln introduced LB891, which contains two key provisions. First, the legislation prohibits psychologists from discriminating against a variety of legally protected classes of persons, including sexual orientation and gender identity. Second, it prohibits the Department of Health and Human Services from adopting any rules or regulations that govern the practice of psychology contrary to the code of conduct adopted by the Board of Psychology. The board has regulatory oversight of the practice of psychology in Nebraska.
LB891 was introduced in response to an ongoing stalemate that has occurred at the Board of Psychology. The board has vehemently advocated for SOGI non-discrimination language, claiming that it is required by the American Psychology Association’s national code of conduct.
Nebraska’s current and previous governors have claimed that such inclusion would fall outside the regulatory authority of the Board of Psychology.
The Nebraska Catholic Conference has maintained that even if such authority existed, non-discrimination language would need to be accompanied by robust conscience protection language. Without conscience protection language, the rights of psychologists would be violated. This would force faith-based and other psychologists and organizations who disagree out of service.
The Board of Psychology has not been agreeable to adequate conscience protection for psychologists. This has created an impasse, which LB891 seeks to overcome.
FATAL FLAWS OF LB891
There are several reasons LB891 is bad policy for Nebraska.
First, there is no demonstrable need for LB891. No showing has been made that those in the proposed protected classes of sexual orientation and gender identity have been targets of unjust discrimination and require special legal treatment.
The claim often is lodged against faith-based providers, such as Catholic Social Services’ Immaculate Heart of Mary Counseling Services in the Diocese of Lincoln, that they will not serve a gay, lesbian or transgendered person. This claim is absolutely false. Psychologists at Immaculate Heart Counseling Services will serve anyone with any array of mental health issues (for example, bipolar disorder, depression or suicidal ideation).
Second, like other SOGI non-discrimination legislation, LB891 seeks to impose a normative view of marriage and human sexuality and punish anybody who dissents from this view. Psychologists with differing rational and faith-based views on so-called same-sex marriage or gender transition therapy could face professional repercussions. For example, psychologists who would not directly assist or refer a gay man to enhance his same-sex relationship could face professional discipline, such as a loss of their professional license.
In a Lincoln Journal-Star article on LB891, Sen. Pansing Brooks reportedly said that “if psychologists have such fervently held, particularly tender beliefs that they couldn’t possibly refer a person to another psychologist, maybe they should not be practicing in that area.” This comment is deeply disturbing, as it states that anybody who disagrees on the issue of marriage or gender identity should find another profession.
Suggestions and soft threats to “get out of the profession” have similarly arisen in the context of abortion, where academics and ethicists have claimed that certain doctors should either provide abortions or directly refer a person for an abortion even if it violates their professional medical judgment or conscience beliefs.
Third, LB891 undermines access to critical mental health care services. Such legislation in effect imposes a dilemma on providers: Choose to follow the onerous, conscience-violating government mandate or exit the profession.
Since providers inevitably would leave the profession and not violate their conscience, this would mean fewer providers. Psychologists, like those at Catholic Social Services, would not be available to accompany any number of clients suffering from serious mental health issues. We already lack a sufficient number of mental health care practitioners and cannot afford to run people out of the profession, simply because they hold a traditional view of marriage and human sexuality.
Simply put, LB891 is a solution in search of a problem that undermines the mental health care needs of clients.
Tom Venzor is executive director of the Nebraska Catholic Conference, with headquarters in Lincoln. Contact him at firstname.lastname@example.org.