Ward v. Wilbanks
&
Keeton v. Anderson-Wiley:
Can Professional Counselors
Use Religious Beliefs As the
Basis for Refusing to See LGBTQ
Clients
www.counseling.org/kaplan
David Kaplan, Ph.D.
American Counseling Association
dkaplan@counseling.org
Mary Hermann, J.D., Ph.D.
Virginia Commonwealth University
mahermann@vcu.edu
Time to THRIVE Conference
February, 2014
Our involvement in Ward v.
Wilbanks
We wrote briefs and provided
expert testimony on behalf of
both the counseling program
being sued and the counseling
profession.
Overview
Counseling’s LGBTQ positions
 Legal context
 Case descriptions and outcomes
 ACA’s positions on the cases
 Legislative (over)reactions
 Implications for LGBTQ clients,
counselors, and educators
 Q&A

ACA Position Statements
Supporting the LGBTQ
Community
Not a mental disorder
 Counselors must not discriminate
 Counselors must not impose their values
 The right to marry
 Opposition to reparative therapy

Legal Context of Cases
Bruff
v. North Mississippi Health Services
(2001)
– Court upheld counselor’s termination for
refusal to counsel a lesbian client on
relationship issues.
Walden v. Centers for Disease Control
(2010)
– Counselor’s employment terminated after she
referred client who sought counseling
regarding same-sex relationship.
Ward Case

Facts
A practicum student asked to refer rather
than counsel a client who had previously
sought counseling services related to a
same-sex relationship.
The request was granted to avoid harm to
the client, but the student was told that she
would have to learn to work with a diverse
clientele.
Ward Case
The faculty offered a remediation plan to
the student, but the student refused the
plan.
The student was dismissed from the
counseling program.
The student sued the counseling faculty and
university officials alleging violation of her
1st and 14th amendment rights, including
her right to her religious beliefs.

Court Findings
– The District Court granted a summary
judgment in favor of the University.
– The 6th Circuit Court of Appeals remanded the
case for trial.
– The case was settled. The University did not
have to change its gate keeping policies.
ACA became involved
Challenged the validity and
enforceability of the nondiscrimination clause of the
ACA Code of Ethics.
ACA Code of Ethics
C.5. Nondiscrimination
Counselors do not condone or engage in
discrimination based on age, culture,
disability, ethnicity, race,
religion/spirituality, gender, gender
identity, sexual orientation, marital
status/partnership, language preference,
socioeconomic status, or any basis
proscribed by law.
ACA
Submitted
an amicus brief
http://www.counseling.org/resources/pdfs/EMUamicusbrief.pdf


Provided expert testimony
Recommended Dr. Hermann for
expert testimony
Augusta State
University lawsuit
Keeton v. Anderson-Wiley
Keeton Case
• Similar to Ward
• Advocated for reparative therapy
• Creative remediation
The Judge ruled against
the student and for the
ASU counseling program
“This is not a case pitting
Christianity against
homosexuality”
Rather, the judge ruled, it is
about a university enforcing
reasonable standards - the
ACA Code of Ethics.
An appeal was denied
th
by the 11 federal circuit
court
And in February, 2013 an
appeal
for the circuit court to
revisit their decision was
denied
Lawsuit issues
• Is it permissible to deny counseling services
to an LGBTQ client on the basis of the
counselor’s values?
• Can referral be made at any time a
professional counselor wishes to do so?
• When is a client a client?
Is it permissible to deny
counseling services to an
LGBTQ client on the basis
of the counselor’s values?
ACA Code of Ethics
C.5. Nondiscrimination
Counselors do not condone or engage in
discrimination based on age, culture,
disability, ethnicity, race,
religion/spirituality, gender, gender
identity, sexual orientation, marital
status/partnership, language preference,
socioeconomic status, or any basis
proscribed by law.
Judge’s opinion
“The ACA Chief Professional Officer, Dr. Kaplan,
explained in his expert report that plaintiff’s
request to refer clients based on their
protected status (sexual orientation) ‘was a
clear and major violation of the ACA code of
Ethics as it would have been if she had refused
to counsel an assigned African American on
the basis that her values would not allow her
to provide services to people of color.’ ”
Can referral be made at
any time a professional
counselor wishes to do
so?
ACA Code of Ethics
A.11.c. Appropriate Termination
Counselors terminate a counseling
relationship when it becomes
reasonably apparent that the client no
longer needs assistance, is not likely
to benefit, or is being harmed by
continued counseling.
ACA Code of Ethics
A.11.a. Abandonment Prohibited
Counselors do not abandon or
neglect clients.
Judge’s opinion
“Regarding referrals... ACA chief
Professional Officer David Kaplan
[states that] there is no statement
in the ACA Code of Ethics that
referral can be made on the basis
of counselor values.”
Judge’s opinion
“Referrals are taught to be a last
resort…EMU could not confer a
counseling degree on a student who
said she would categorically refer all
clients who sought counseling on
topics with which she had contrary
moral convictions.”
When is a client a client?
ACA Testimony
The ACA published book The Counselor and
the Law makes it clear that the definition of a
client begins at the moment an individual
requests assistance… This obligates
professional counselors to respect the dignity
and to promote the welfare of a client even if a
session has not yet occurred. It is therefore
clear that the individual assigned to Ms. Ward
was her client.
The good news
It continues to be a major
violation of the ACA Code of
Ethics for a counselor to
discriminate against clients on
the basis of gender identity or
sexual orientation
The not so good news
States have gotten into
the act with conscience
clause legislation
Arizona
Graduate programs in counseling or
social work cannot require students
to counsel gay people in ways that
are inconsistent with the student’s
values
It’s getting
personal…language from
Michigan SR 66
“Whereas, The American Counseling Association, a
private organization that promulgates a code of ethics
widely used by university counseling programs and state
licensure boards in training for and regulating the
counseling profession, has publicly supported universities
that have punished or dismissed students for adhering to
their sincere religious convictions…”
However….
California has banned
reparative therapy for
children
These cases and the current
legislative actions have
provided opportunities to
build awareness in the
counseling community
JCD Special Issue on
Professionalism, Ethics,
and Value-Based Conflicts
in Counseling
(April, 2014)
ACA Code of Ethics Revision
Draft

Emphasizes
– Honoring diversity
– Promoting social justice
– Providing culturally competent
counseling services

Prohibits counselors from condoning
or engaging in discrimination against
prospective or current clients on the
basis of sexual orientation
American School Counselor
Association
A comprehensive school counseling program
“advocates for and affirms all students from
diverse populations including: ethnic/racial
identity, age, economic status, abilities/
disabilities, language, immigration status,
sexual orientation, gender, gender
identity/expression, family type,
religious/spiritual identity and appearance.”
Ethical Standards for School Counselors (Preamble,
ASCA, 2010)
ASCA Position Statement “The Professional
School Counselor and LGBTQ Youth”
“The professional school counselor works with all
students through the stages of identity
development and understands this development
may be more difficult for LGBTQ youth. It is not
the role of the school counselor to attempt to
change the student’s sexual orientation/gender
identity but instead to provide support to the
LGBTQ students to promote student achievement
and personal well-being.”
ASCA Position Statement “The
Professional School Counselor and
LGBTQ Youth”

Professional School Counselors “are
committed to the affirmation of youth of all
sexual orientations and identities.”

Professional School Counselors “assist all
students as they clarify feelings about their
own sexual orientation/gender identity and
the identity of others in a nonjudgmental
manner.”
Implications for
counselors and clients:
Ensuring cultural
competency and
promoting best practice
Counselor Education
Counselor Educators can
continue to train future
counselors to provide
culturally competent services.
Accrediting Body: Council for the Accreditation
of Counseling and Related Educational Programs
(CACREP)
– CACREP supports the ethical Standards of
professional organizations (i.e., ACA and its
divisions)
– CACREP Standards include the expectation
that students will learn counselors’ roles in
eliminating biases, prejudices, and
processes of intentional and unintentional
oppression and discrimination.
Best Practice: Counselor
Educators design academic
activities that help students learn
to manage value differences that
exist between themselves and
future clients.
Counselors are not expected to be
value-free in their counseling
practice, but are expected to avoid
imposing their values onto clients.
Bracketing Approach (honor but
not impose values)
Continuing Education
 Ethics
code revision
 Conference
 Books, journals, Counseling Today
 ACA website (counseling.org)
 Webinars
 Podcasts
 Promoting ALGBTIC
Discussion/Questions
Ward v. Wilbanks
&
Keeton v. Anderson-Wiley:
Can Professional Counselors
Use Religious Beliefs As the
Basis for Refusing to See LGBTQ
Clients
www.counseling.org/kaplan