Posts Categorized: Legislative Hearing

BBA Presents Testimony in Support of Banning Use of Conversion Therapy on Minors

In the fall of 2015, the BBA Council voted to support legislation that would ban licensed health care professionals from engaging in efforts to change sexual orientation and gender identity, often called conversion or reparative therapy. The BBA has a long history of defending principles of non-discrimination and equal protection, and as an organization of attorneys, we recognize that young people should enjoy the fundamental human right to be free from harmful and ineffective “treatments” intended to change their sexual orientation or gender identity.

As such, we are proud to be able to continue our advocacy on the ban by supporting H.1190, filed by Representative Kay Khan, and S.62, filed by Senator Mark Montigny, two identical bills that would ban the use of conversion therapy by licensed providers on minors in the Commonwealth. This week we had the opportunity to present testimony in support of this legislation before the Joint Committee on Children, Families, and Persons with Disabilities.

Why we support H.1190 and S.62

As we’ve outlined in the past, this legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe. The American Psychological Association, American Medical Association, American Academy of Pediatrics, National Association of Social Workers, and the Pan American Health Organization, among many others, have all issued policy statements condemning the practice. These statements make clear that conversion therapy is unnecessary as it attempts to “cure” something that is not an illness or disorder, is ineffective in bringing about the “change” sought, and poses a high risk of seriously harming patients, especially minors.

The use of conversion therapy typically occurs within the context of familial rejecting behaviors and attitudes, and, no matter the parents’ intentions in seeking this “treatment”, will typically be read by the youth as a rejection of their sexual orientation and/or gender identity—that is to say, a repudiation of who they are as human beings. Many studies have shown that LGBTQ minors who face this type of rejection are at a much higher risk of negative health and social outcomes. These youth experience significantly higher rates of depression, substance use, suicide attempts, as well as homelessness and entrance into the child welfare and juvenile justice systems.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

The American Bar Association, in its Resolution 112, has also urged that “governments… enact laws that prohibit state-licensed professionals from using conversion therapy on minors,” based on the recognition that LGBTQ people should enjoy the basic right “to be free from attempts to change their sexual orientation or gender identity.” To date, nine states, including New Jersey, California, Vermont, and Connecticut, have passed legislation barring the use of conversion therapy on minors, and it seems now is the time Massachusetts become the tenth state to enact these protections.

Legislative Hearing

At a hearing on June 6, many proponents of the bill, including psychiatrists, pediatricians, social workers, survivors of conversion therapy, LGBTQ-rights advocates, and legislators showed up to support the conversion therapy ban for minors. Following testimony from these supporters, opponents of the ban expressed concern that the bills would restrict legitimate therapies and infringe on First Amendment rights of free speech and free exercise of religion.

The testimony from supporters lasted for more than two hours and included deeply personal stories presented by those who had survived the use of conversion therapy methods like physical aversion and electroshock therapy. The harms that result from the use of these and other practices aimed at changing one’s sexual orientation and gender identity were addressed by a number of the witnesses, including a clinical child psychologist, representatives from the Boston Children’s Hospital, and pediatricians from the Massachusetts Chapter of the American Academy of Pediatricians. Witnesses from MassEquality, PFLAG, the Children’s League of Massachusetts, and the Massachusetts Teachers Association presented further reasons why passage of these bills is necessary to protect the youth of the Commonwealth. In addition, a panel made up of 12 representatives presented on the need for the legislation and the broad support these bills have in the Legislature. Ninety legislators have signed on to H.1190 and twenty-eight have signed on to S.62 this session.

We were lucky enough to be joined by Elizabeth Roberts of Roberts & Sauer, a member of the Family Law Section Steering Committee, who presented testimony on behalf of the BBA alongside Ben Klein a Senior Attorney  with the GLBTQ Legal Advocates and Defenders (GLAD).

 

Elizabeth Roberts presents testimony in support of H.1190 and S.62 before the Joint Committee on Children, Families, and Persons with Disabilities.

While deferring to the many experts and survivors to explain the psychosocial harms that result from the use of conversion therapy on minors, Roberts and Klein spoke on the legal aspects of the legislation. First Amendment challenges to similar laws have consistently been dismissed in other jurisdictions and the bans have been upheld as valid exercises of the state’s power.

For example, in Pickup v. Brown, the Ninth Circuit upheld a law prohibiting the use of conversion therapy on minors because “[p]ursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful.” (740 F.3d 1208,1229 (9th Cir.), cert. denied, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014)). The court found the bill did not regulate protected speech but rather protected vulnerable young people from treatments deemed ineffective and unsafe by the overwhelming consensus of medical and child welfare experts. In 2014, the Supreme Court declined to review the law after the court rejected the claim that the legislation infringed on free speech. Additionally, just last month, the Supreme Court declined to hear a case challenging the California law on the grounds that it impinged upon the free exercise of religion.

Reaching a similar outcome through a different approach, the Third Circuit upheld the New Jersey ban in King v. Christie (767 F.3d 216 (3d Cir. 2014)). While the Court viewed the law as a regulation on speech, it found this to be a permissible restriction because it easily passed review under the intermediate scrutiny standard that applies to restrictions on “professional speech.” Ultimately the court found it reasonable to conclude a minor client might suffer harm from the use of the practice, given the substantial evidence of the likelihood of such harm presented to state legislators.

Thus, as both Roberts and Klein told the Committee, the existing case law makes it clear that the bills, like H.1190 and S.62, are valid exercises of the Commonwealth’s power to regulate medical professionals and protect public health and safety. And the youth and families of Massachusetts deserve assurance that minors will not face harmful or abusive treatment when seeking assistance from licensed professionals. As noted above, the BBA recognizes the  fundamental human right to be free from abusive practices meant to change one’s identity or expression of that identity and will continue to advocate for these bills to protect this right for minors in the Commonwealth.

We appreciated the opportunity to share support of the bills with the Committee and will keep you posted on the status of this important legislation.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

BBA Testimony at Judiciary Committee Hearings

We’ve recently reported on our testimony in support of H.2645 (tax basis for certain decedents’ beneficiaries), at the Joint Committee of the Revenue (which later reported the bill favorably to the House Committee on Ways and Means) and our testimony in support of full RUFADAA language (access to digital assets) before the Joint Committee on the Judiciary. Lest you think our public hearing participation is limited to Trusts and Estates issues, we’ve also had the opportunity to present testimony on three other legislative items at Judiciary Committee hearings held the past few weeks.

Housing Court Expansion

On Tuesday, May 2, the Judiciary Committee heard from the public on bills related to Court Administration, including legislation that would expand jurisdiction of the Housing Court to the full state, which the BBA supports.  We’ve spoken often in the past on the importance of this expansion, identified this as a budget priority, and even recorded a podcast on the matter.

Two identical bills were before the committee, H.978 sponsored by Representative Chris Walsh, and S. 946, sponsored by Senator Karen E. Spilka. These bills would expand access to the Housing Court, and all its accompanying benefits, to all residents of the Commonwealth, including the close to one-third who currently lack such access.

Interestingly, H.978 and S.946 were two of the most highly testified-upon bills at the hearing. Representatives Paul J. Donato and Jay R. Kaufman, Senator Sal N. DiDomenico, and Chief Justice of the Housing Court Judge Tim F. Sullivan all testified in support of the bills.  In addition to these public officials, the Committee heard testimony from a number of key advocates, including Annette Duke of the Massachusetts Law Reform Institute, Elizabeth Soule, Executive Director of MetroWest Legal Services and Laura Rosi, Director of Housing and Advocacy of Housing Families.

We were lucky enough to have Julia Devanthery, Attorney and Clinical Instructor in Housing Clinic of the Legal Services Center of Harvard Law School and member of the BBA Delivery of Legal Services Section, presenting testimony on behalf of the BBA as part of a panel, alongside Jeff Catalano of Todd & Weld, president of the Massachusetts Bar Association, and James T. Van Buren, Commissioner of the Access to Justice Commission.

Attorney Devanthery offered specific insight from the perspective of her extensive work supervising the Lawyer for the Day Program in Housing Court, which, since 1999, offers advice, mediation, and case litigation for unrepresented tenants and landlords on Eviction Day at the Housing Court.  She spoke to the importance of expanding this service statewide given the complexity of housing cases, the lack of alternative affordable housing options, and the vulnerability of many pro se tenants and landlords.  She also spoke movingly about her experience representing victims of domestic violence, noting that this clientele, which is uniquely vulnerable, is able to have their cases adjudicated by Housing Court in a manner which takes into account abuse, while taking advantage of the specialized legal protections in place to defend survivors and their children.

We’ll keep you updated on the report of the Joint Committee on the Judiciary on H.978 and S.946, and be sure to watch this space for our soon-to-come Senate budget update (Spoiler Alert: Unlike the House Ways and Means Budget proposal, the Senate Ways and Means budget does include funding and authorizing language for Housing Court Expansion).

UCCJEA

Earlier this week, the Committee held its second day of hearings on Probate and Family matters, this time taking up two topics on which the BBA has worked for a number of years. First up, An Act relative to the Uniform Child Custody Justice Enforcement Act (UCCJEA), S.806, filed once again by Senator Cynthia Stone Creem.  As we’ve outlined in the past, enactment of this bill would remedy conflicts that occur under current Massachusetts law when one of the parents of the child moves to another state. Currently, Massachusetts is the only state in the US which has not enacted the UCCJEA!

As it stands now, Massachusetts law cedes jurisdiction over our own custody orders to the home state of the custodial parent and child after six months of their residency in the new venue.  But under the UCCJEA, once a state has exercised jurisdiction over custody, that state retains exclusive jurisdiction as long as a parent, the child, or someone acting as a parent remains in the original issuing state. Overall, adoption of the UCCJEA would help to prevent one parent from forum-shopping by seeking a more favorable outcome in another state and also prevent the problem of dueling lawsuits in different jurisdictions.

A panel with representatives from the BBA, MBA, and the Women’s Bar Association (WBA), all of whom support passage of the bill now that domestic-violence concerns have been addressed with new language in the bill, presented testimony on behalf of the UCCJEA. Judge Edward Ginsburg spoke on behalf of the BBA, and as usual offered compelling reasons for Massachusetts adoption. If you’ll recall, Judge Ginsburg has spent nearly twenty years advocating for Massachusetts to change the law.

Stay tuned to find out if this will finally be the year that Massachusetts becomes the 50th state to adopt the UCCJEA!

Shared Parenting

Finally, Jessica Dubin of Lee & Rivers, our Family Law Section co-chair, spoke about a number of bills being heard that would amend Section 31 of Chapter 208 of the Massachusetts General Laws, dealing with child custody and shared parenting.  While the BBA has not specifically endorsed any of the bills pending in the Judiciary Committee, in 2015, the Family Law Section Steering Committee worked hard to develop principles related to shared parenting that would guide the BBA’s analysis of all related legislation. For example, the principles call for the availability of alternative terminology such as “parenting time”, “residential responsibility” and “decision-making responsibility,” in place of the divisive and outdated terms, “visitation” and “custody.”  The principles also offer support for provisions that provide increased guidance on the content to be included in parenting plans and oppose any provision that takes any focus away from the best interests of the child or ties the hands of judges.

Attorney Dubin offered the BBA’s appreciation to the Judiciary Committee for its consideration of the similar legislation last session and its openness to the input of the bar on the pending bills.  She expressed a hope that the BBA would have the same opportunities this session and relayed the current work being done to study Senator Will Brownsberger’s bill, S.775, An Act relative to determining the best interest of children in Probate and Family Court.

As usual, watch this space to find out what happens!

Many more hearings are set to be scheduled for the coming months, and we’ll report back on our continued activity!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association

RUFADAA Update: Testimony at Judiciary Committee Hearing and Podcast

In March, we updated you on the BBA’s endorsement, at the request of the Trusts and Estates Law Section, of the adoption of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in the Commonwealth.

To briefly recap, RUFADAA was promulgated by the Uniform Law Commission in 2016 in response to a lack of guidance as to what happens to a person’s digital assets (think Facebook, Instagram, online banking) when they die or become incapacitated. Very few individuals leave clear direction on the handling of these assets and those companies in charge of the on-line accounts have varied and often difficult-to-locate policies, if they have any policies on the matter at all. RUFADAA helps to add clarity by creating a formal process to determine a fiduciary’s authority to access digital assets while also balancing privacy concerns and limiting unwarranted disclosure of private communications. Since its promulgation in 2015, at least 30 other states have adopted RUFADAA in some form. (Check out our previous blog post on this for a full refresher on the contents of RUFADAA.)

On Monday, the Joint Committee on the Judiciary (“the Committee”) heard testimony from three different panels on bills that deal with access to digital assets.

The Committee first heard testimony from the Ajemian siblings in support of, S.822, “An Act Relative to Access to a Decedent’s Electronic Mail Accounts,” sponsored by Senator Cynthia Stone Creem. As you’ll recall, the Ajemian siblings are parties to Ajemian v. Yahoo!, Inc., regarding the contents of an e-mail account established by their late brother.  There, the Supreme Judicial Court is currently determining whether the federal Stored Communications Act (SCA), 18 U.S.C. § 2702, prohibits disclosure of the contents of a deceased e-mail account-holder’s account to the administrators of his or her estate. In that case, the Ajemian siblings, the administrators of their brother’s estate, argue, in part, that they should have access under an exception to the Act, as agents for the decedent.

S.822 applies only to e-mail accounts but allows greater access to those accounts than the requirements set forth in RUFADAA. The bill allows personal representatives to gain access to the contents of an e-mail account upon a notarized written request by the personal representative or an order of the probate court that has jurisdiction over the estate of the decedent. Upon receipt of the request, the service provider has 60 days to comply, and this requirement supersedes provisions in e-mail service provider contracts, terms and conditions, or privacy policy unless the provider can show “by clear and convincing evidence, that it offered opt-out language, separate and distinct from the standard agreement or terms of service, whereby the decedent affirmatively declined to have the decedents electronic mail account released after dead.”

Next up, representatives from Facebook and NetChoice testified in opposition to S.822 and in support of Senator Lesser’s S.885, “An Act Relative to the Privacy of a Decedent’s Electronic Communication” (and Representative Livingstone’s identical H.3083, “An Act for Uniform Fiduciary Access to Digital Assets”). These bills are largely the same of RUFADAA, except the language limits the definition of “fiduciary” to a personal representative, while RUFADAA would cover personal representatives, conservators, trustees, and agents acting under the power of attorney. Notably, the Facebook witness also stated that they would be completely comfortable with the adoption of the full RUFADAA language instead of the more narrow S.885 or H.3083. These witnesses opposed S.822 because of the broader access to accounts the bill allows, as they worry it will push them to violate privacy guarantees, put them in conflict with the federal SCA, and tie them up in litigation.

This brings us to the final panel, which instead of testifying in support of any of the current bills, called for adoption of the full RUFADAA language, even though it hasn’t yet been filed in Massachusetts. BBA Trusts and Estates Section Co-Chair Joe Bierwirth, of Hemenway & Barnes, testified on behalf of the BBA, alongside Colin Korzec, of U.S. Trust, and Marc Bloostein, of Ropes and Gray, on behalf of the Standing Committee on Massachusetts Legislation Relating to Wills, Trusts, Estates and Fiduciary Administration (“Standing Committee”).

Joe Bierwirth, Colin Korzec, and Marc Bloostein (right to left) testify in support of RUFADAA at Joint Committee on the Judiciary hearing. 

Overall, the panel presented the reasons for adoption of the complete RUFADAA language, including the balance it strikes in allowing access while also protecting privacy, and the clarity and certainty it will offer for fiduciaries, digital account users, and digital account service providers. The witnesses also stressed the unified support this language has achieved, both nationally, with adoption by more and more states in rapid succession over the past two years, and locally, with the BBA, the Massachusetts Bar Association, and the Massachusetts Bankers Association having all officially endorsed the RUFADAA language. (The written testimony offered by the panel also included the Standing Committee’s Massachusetts-specific analysis of RUFADAA, complete with proposed edits to the ULC’s model language in order to ensure it complies with the Massachusetts General Laws).

One thing all witnesses agreed on is that this is an issue crying out for action from the Legislature, in order to provide some clarity to what is now quite a grey area. As always, we’ll keep you posted on RUFADAA throughout the legislative session!

In related news, the BBA isn’t just sticking with legislative testimony to get the word out about RUFADAA. You won’t want to miss our podcast featuring Trusts and Estates co-chairs, Joe Bierwirth and Andy Rothstein, of Goulston & Storrs.

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association