Barring another mass slaughter of LGBT people, which contributed, along with opposition, to a decision to delay an earlier vote, the Arkansas Legislative Council is scheduled to vote Thursday on an amendment to the rules for counselors that provides a “conscience clause” to refuse to treat patents for “ethical, moral, or religious principles sincerely held by any counselor.”

Dr. Michael Loos, executive director of the board, says the rule merely restates a national code of ethics for counselors, though it adds the “conscience clause.” This is to ensure, he insists,  that counselors properly handle situations in which they might have concerns they’d have trouble serving a particular patient for a wide range of reasons. Loos insists the rule is not aimed at providing an out for counselors with  objections to serving LGBT people, though it comes in the context of a Tennessee law providing such protection for anti-gay counselors. It also is being pushed by legislators who back the so-called religious freedom law adopted by the Arkansas legislature in 2015 that allows religion to be used as pretext to discriminate against gay people in employment, housing and services. Loos confirmed he’d talked to a governor’s staff member, Phyllis Bell, about the proposed rule, but insisted the governor’s office was only interested in an adequate procedure for counselors to follow.

Loos said the Board he heads would insist on compliance with the code of ethics. If  counselors who were disciplined felt that violated religious beliefs, they’d have to consult a lawyer, he said. 

Loos said reporting about this issue to date has been “wrong” in suggesting a direct tie to the issue of serving LGBT people. He also said the rule protects patients rather than harms them.


The proposed Arkansas rule adds this to adoption of the American Counseling Association Code of Ethics:

No counselor or MFT [marriage and family therapist] licensed by the Board shall be sanctioned by the Board for transferring current or potential clients based on the counselor’s or MFT therapist’s conscience. Conscience is defined as the ethical, moral, or religious principles sincerely held by any counselor or MFT. This referral clause does not absolve the counselor or MFT from adhering to non-discrimination (ACA, 2014, A.11.b). The counselor or MFT shall only refer aftercareful consideration and consultation, and shall not abandon clients who seek assistance. Referrals shall only occur as a result of conscience if the counselor or MFT is unable to effectively serve the client. Effective 10 days following the Legislative Council approval date of these Rules.

Critics of the rule, including the ACLU, believe it arises  from efforts by the Republican legislature and governor to throw up barriers to equal treatment of gay people. They see it as  a way to allow discrimination in the name of religion. They question the ability of a patient who is denied service to find alternatives in many parts of the state and they note that the Tennessee law applied only to private counselors. The Arkansas rule would cover all counselors, including those working for public agencies. This could potentially include people who work in schools and might encounter youths with sexual orientation issues.

Loos insists that’s all conjecture. He said the board would act on complaints and would insist that the provisions on consideration, consultation and abandonment  be considered in referrals

Loos said he’d prefer that the rule addition be deemed a “due diligence” clause rather than a conscience clause, but he objected to my conclusion that conscience clause was used for a reason.  Just my opinion, he said. He provides this explanation with the rule:

… it is intended to be a ‘due diligence’ rule, meaning the Board is going to address each issue to ascertain whether the practitioner has done his/her due diligence in examining ‘self’ and attending to issues with ‘self’ that might interfere with effective counseling practice.  All practitioners have been taught from our first semester in graduate school to ‘do our own work’ before we engage in the practice of counseling.  This same applies to the second part of ACA Code A.11.b:  Who is going to monitor adherence to the Code and to what end?  Is due diligence undertaken?

Loos said he’d serve LGBT people himself, as well as people of different cultures and other types of diversity.

The Legislative Council referred the rule back to subcommittee June 17 in the face of opposition that focused on the potential ill treatment of LGBT people. Earlier that week, 49 people were slaughtered in a terrorist’s attack on a gay club in Orlando, Fla. The timing was poor for the legislature’s latest effort to legally enforce discrimination against gay people.