Freedom To Discriminate and the Professional Obligation of Social Workers

by Allan Barsky, PhD, JD, MSW

Stop Discrimination

     In October 2020, the Texas State Board of Social Worker Examiners (following recommendations by the Governor of Texas) voted to change the state’s “Social Worker Code of Conduct” by removing protections against discrimination based on disability, sexual orientation, and gender identity and expression. By virtue of this change, the licensing laws for social workers would have allowed them to discriminate. This change begs the question, “Why allow social workers to discriminate?”

    Some people might argue that the Board was supporting religious freedom, making it legal for social workers to refuse to serve lesbian, gay, bisexual, transgender, or queer (LGBTQ) clients if it goes against their religious beliefs. I am unaware of any religion, however, that requires people to discriminate, harass, ignore, or disrespect people, simply because of their sexuality, gender identity, or gender expression.

    Yes, Leviticus 18:20 suggests, “You shall not lie with a man as with a woman; it is an abomination.” Social workers and others who adhere to this Biblical text may certainly decide in their personal lives that they will not engage in same-gender sexual activities. However, the Bible does not say that anyone should discriminate against LGBTQ individuals—or against people with disabilities. In fact, many religious scriptures teach that we should “Love thy neighbor as thyself,” and that we should “Judge not others lest we be judged.” It is difficult to find any moral justification for allowing social workers (or any helping professionals) to discriminate against LGBTQ individuals or people with disabilities.

Relevant Ethical Standards

    As a profession, social work values the dignity and worth of all people. Standard 1.01 of the National Association of Social Workers (NASW) Code of Ethics says that the primary commitment of social workers is to support client well-being. This professional obligation may supersede a social worker’s personal rights to freedom of expression or religious freedom. Standard 4.02 states that social workers should not engage in or condone discrimination. Standard 6.04(d) calls on social workers to advocate on behalf of people who are being discriminated against on the basis of their sexuality, gender identity, gender expression, or disability. Although some state licensing laws incorporate the NASW Code of Ethics into their state licensing laws, Texas is not one of those states. Under the revised Texas laws, social workers would be legally permitted to discriminate. However, they are ethically obliged not to discriminate.

Advocacy to Restore Legal Protections

    Fortunately, in response to the changes to Texas’s Social Worker Code of Conduct, there was a quick and effective response from the National Association of Social Workers, state legislators, and advocates for LGBTQ people and people with disabilities (cf., NASW-Texas, Texas Tribune). As a result of these advocacy efforts, the prohibitions against discrimination were restored to the Code of Conduct. Still, there are many jurisdictions that do not provide legal protections against discrimination for particular groups, including LGBTQ individuals.

    Some recent court cases have also suggested that religious freedom and freedom of speech may supersede client rights and protections. On November 20, 2020, for instance, the 11th Circuit Court of Appeals ruled that Boca Raton and Palm Beach County (Florida) could not ban conversion therapy (sometimes called sexual orientation or gender identification change efforts). The 2-judge majority said the law was unconstitutional, because it infringed First Amendment rights to free speech. The dissenting judge, Beverly Martin, noted that conversion therapy is psychologically harmful to LGBTQ children, so there are valid reasons for banning it (Otto and Hamilton vs. City of Boca Raton and County of Palm Beach, FL [2020] 11th Circuit, No. 19-10604; Palm Beach Post).

    Although many states, counties, and cities have banned conversion therapy, many have not. Many courts have upheld the constitutionality of laws banning conversion therapy. Additional court challenges regarding conversion therapy bans are likely to continue.

Ethical Duties versus Legal Freedoms

    So, how should social workers act when the law says that they have particular legal freedoms (e.g., to provide conversion therapy or to discriminate), but their codes of ethics say that they have ethical obligations not to discriminate and to act in their client’s best interests? They should act ethically. They should not provide conversion therapy. They should not discriminate. They should treat LGBTQ individuals and people with disabilities with dignity and respect. They should also ensure that clients from these groups have access to the services they need.

    The laws regarding religious freedom and freedom of expression do not require social workers to discriminate. Accordingly, social workers can act ethically and legally when serving LGBTQ individuals, people with disabilities, and any other client group.

The Importance of Legal Protections

    Given that social workers are bound by their ethical obligations, one might ask why it was so important to restore Texas laws to include protection for LGBTQ individuals and people with disabilities. One answer is clarity. Another is social justice. When laws and ethics give potentially conflicting guidance, there is greater opportunity for confusion and greater opportunity for people to act in unethical manners. Our laws should reflect our ethics and values. Laws that prohibit discrimination support the principles of equality and social justice. Laws that prohibit discrimination also give people recourse when social workers (and other professionals) violate those laws.

    Consider the potential impact of laws that allow social workers to discriminate on the basis of sexual orientation, gender identity or expression, or disability:

• A school social worker could refuse to help a student who requests help because her mother started abusing her when she discovered the student is transgender.
• A psychiatric social worker could tell a gay patient with depression that God is punishing him for his sin of being gay.
• A social worker performing a custody evaluation for a divorcing couple could recommend that a lesbian mother should have no custody or access to her children, simply because of her sexual orientation.
• A social worker in an assisted-living facility could refuse to admit an older adult into the facility because the older adult is bisexual or queer.
• A clinical social worker in private practice could refuse to serve a client because the client is blind or deaf.

    None of these social worker responses is ethical, and they should not be legal. People who identify as LGBTQ or who have disabilities should know that when they seek help from a social worker, they will be treated with respect. Imagine how hard it is for a closeted LGBTQ youth to ask for help from a social worker when the youth has been raised in a homophobic environment. Imagine how much harder it would be when the youth does not know whether the social worker will be helpful and supportive or intolerant and rejecting. Licensing laws should support the message that social workers have a duty to be helpful and supportive—and must not discriminate.

Professional Roles and Obligations

    When people enter their professional roles, they need to fulfill their professional obligations. In 2015, Kim Davis (a Kentucky county clerk) refused to issue marriage licenses to same-gender couples, citing religious objections. Ultimately, she was jailed for contempt of court, because she refused to issue marriage licenses. Her job was to issue marriage licenses—without discrimination. Similarly, social workers are tasked with serving their clients—without discrimination. Although the NASW Code of Ethics already prohibits social workers from discriminating, it is important that regulatory laws also prohibit discrimination on the basis of disability, sexual orientation, gender identity, and gender expression. Consistent laws and ethical standards can make it clear that all clients deserve to be treated with dignity and respect.

Conversion Therapy and Nondiscrimination Resources

American Association for People with Disabilities

https://www.aapd.com/advocacy

Born Perfect: Ending Conversion Therapy

https://bornperfect.org

National Center for Lesbian Rights

https://www.nclrights.org

Human Rights Campaign

https://www.hrc.org

Allan Barsky, PhD, JD, MSW, is Professor of Social Work at Florida Atlantic University and author of  Social Work Values and Ethics (Oxford University Press).

The views expressed in this article do not necessarily represent the views of any of the organizations to which the author is affiliated, or the views of  The New Social Worker magazine or White Hat Communications.