Background

The National Association of Social workers (NASW) partnered with the American Psychological Association (APA), and Kentucky Psychological Association (KPA) to file an amicus brief to the Supreme Court of the United States in the matter of United States of America v. Jonathan Skrmetti. This case will decide whether bans on gender affirming care violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The Court’s decision will decide the legality of bans on gender-affirming care for minors imposed by state legislative regimes.

Amicus Brief

This case concerns Tennessee’s ban on gender affirming medical treatment for minors. Our brief argues the lower court relied on misleading and untrue information that created a distorted perception of medically necessary support transgender youth require. Furthermore, the lower court’s decision contradicts major medical and mental health organizations’ treatment standards of providing gender affirming care. Gender dysphoria is a recognized medical condition and gender-affirming is not only the accepted protocol for treating gender dysphoria but has shown substantial positive effects for transgender youth’s mental health and quality of life.

NASW, including its Tennessee Chapter, is committed to advancing policies and practices that improve the status and well-being of transgender, gender diverse, nonbinary people. NASW strongly advocates for the availability of culturally appropriate, comprehensive health and mental health services for transgender youth across their lifetime. To protect transgender youth from the irreputable physical and mental harm that banning gender affirming care would create, the Supreme Court must overturn the 6^th Circuit’s decision banning gender affirming care.

WASHINGTON, D.C. — The Bazelon Center for Mental Health Law, American Psychiatric Association, National Alliance on Mental Illness, National Association for Rural Mental Health, and National Association of Social Workers on June 28 released the following statement responding to the U.S. Supreme Court’s decision in Johnson v. Grants Pass:

Today the Supreme Court held that laws that criminalize sleeping in public when no safe and accessible shelter options are available are not cruel and unusual punishment. As we described in our amicus brief in this case, which Justice Sotomayor drew on in her dissent, this will have devastating consequences on the large and growing number of Americans experiencing homelessness, including people with mental health disabilities.

People with mental health disabilities are disproportionately injured in interactions with law enforcement, being 12 times more likely to experience police use of force and 16 times more likely to be killed by law enforcement. Additionally, criminal citations and incarceration impose serious burdens, increase financial instability, and create barriers to employment and housing.

Though the Supreme Court today removed a shield against cruel policies that criminalize nonviolent conduct associated with being homeless, it does not mean that such have to exist. Governments can – and many successfully have – put in place community-based services that meet the needs of everyone in the community, without resorting to criminal enforcement. As we described in our amicus (friend-of-the-court) brief, community-based housing and mental health services are a more effective and less expensive way to address homelessness than incarceration or hospitalization.

Research shows that scalable interventions, such as supportive housing, assertive community treatment, mobile crisis services, supported employment, and peer support services are proven solutions to homelessness and a more effective use of resources. By employing these community-based interventions, governments can address homelessness without resorting to criminal enforcement.

Everyone needs a safe place to sleep. As leading mental health organizations that work on behalf of people with mental health conditions across the country, we will continue to advocate for the housing and services that will truly end homelessness.

Read the U.S. Supreme Court Decision

In the case before the Court, In re L.E.S., two women had a 12-year romantic relationship that pre-dated the U.S. Supreme Court’s landmark decision in Obergefell v. Hodges, which held that bans on same-sex marriage are unconstitutional. Before Obergefell, Ohio prohibited same-sex marriage and did not provide a legal avenue for non-married, non-biological parents to establish parentage over their children. Despite this, the Ohio couple became engaged, held themselves out as married, and started a family using artificial insemination with an anonymous sperm donor. They had three children and raised them together until their relationship dissolved. Even after their romantic relationship ended, both women continued to parent their children. When the non-birthing mother filed a petition to establish her parental rights, the juvenile court ruled that she was not the children’s legal parent because she was neither biologically related to them nor married to their legal mother.

The question before the Ohio Supreme Court was whether the juvenile court should have considered whether the parties would have been married at the time of L.E.S.’s conception had Ohio recognized same-sex marriage. The Court found that Obergefell requires the juvenile court to consider whether the parents would have been married at the time of the child’s conception but for the state’s unconstitutional ban on same-sex marriage. Upon an affirmative finding, each parent is entitled to the full range of parental rights that stem from the marriage relationship.

NASW supports protecting the familial attachments between LGBTQ couples and their children and recognizes that these familial relationships are of the same strength, depth, and importance to the healthy development of children as the relationships of opposite-sex couples and their children. This decision affirms that non-biological parents in same-sex relationships are worthy of parental rights, and it benefits children whose emotional wellbeing is best served by maintaining the child-parent relationship.

NASW’s involvement in this case was coordinated by its Legal Defense Fund (LDF). Since 1972, the LDF has provided financial legal assistance and support for legal cases and issues of concern to NASW members and the social work profession. LDF supports educational projects and programs to improve the legal status and knowledge of the social work profession. Learn more about the LDF at www.socialworkers.org/About/Legal/Legal-Defense-Fund.

Consistent with our published policy statements, NASW supports assisting children and youths who enter the juvenile justice system in a manner commensurate with their age, developmental level, and ability to differentiate between right and wrong. The amicus brief explains the detrimental impact placing children in an adult prison system has on their development, safety, and chances of successful reintegration into society. Adult prisons are often ill-equipped to protect children from harm and subject them to solitary confinement and physical violence.  Adult prisons also provide insufficient access to educational programming and mental and physical health services. Placing children in adult prisons contradicts the principles of juvenile justice, which emphasizes rehabilitation over punishment. NASW hopes the amicus brief will provide the Fifth Circuit Court of Appeals with information that will persuade the court to allow the order to stand, and to not return children to Angola prison.

NASW’s involvement in this case was coordinated by its Legal Defense Fund (LDF). Since 1972, the LDF has provided financial legal assistance and support for legal cases and issues of concern to NASW members and the social work profession. LDF supports educational projects and programs to improve the legal status and knowledge of the social work profession. Learn more about the LDF at www.socialworkers.org/About/Legal/Legal-Defense-Fund.

Recent revelations of possible ethical violations by U.S. Supreme Court (SCOTUS) Justice Clarence Thomas ― as well as Justice Samuel Alito ― have led to calls for broad ethical and standards reforms for the court.

These ethical abuses include Justice Thomas’s friendship with real estate tycoon Harlan Crow resulting in him receiving unreported “gifts” from Crow that allowed Thomas to purchase a home for his mother and take expensive vacations. Crow also arranged for Thomas to participate in fundraising events with Republican donors.

Justice Samuel Alito is also an example of the absence of ethical oversight within SCOTUS. The report of his acceptance of luxury travel paid for by billionaire Paul Singer mimics behavior identified with Thomas. Alito’s  transgression was compounded by his public disdain of even the thought that SCOTUS should be required to adopt a formal code of ethics ― as evidenced by Alito’s bogus insistence that  Congress does not have the power to impose  mandatory oversight of the on- and off-the-bench conduct of justices.

Beyond the conduct of Thomas and Alito, there is a more troubling environment in which their behavior subsists.  That environment is one where would-be autocrats believe their behavior is above the rules and laws that other people must adhere to. These are the same values that are becoming normalized within the ecosystem of the far-right MAGA world.

In many ways, the act of a high official accepting expensive gifts from rich benefactors ― which is not new― is a secondary issue. The primary worry is the irreparable harm a self-righteousness and power-driven political culture can do to a Supreme Court that we have long touted as a shining part of our democracy’s system of checks and balances.

Thomas and Alito’s improprieties reinforce a growing negative impression that Americans have about SCOTUS.  There has been a steady shift in public opinion regarding SCOTUS’s integrity and the public’s growing perception that the Court favors those in power over the average American.  All of which begins to call into question whether SCOTUS is reneging on its duty to render fair and equal justice for all Americans, regardless of wealth or station in life.

Social workers and many other non-legal professionals view the Supreme Court from a distance ―far removed from the grassroots, everyday life of the clients they serve. Therefore, ethical  oversight of SCOTUS is not high on their list of issues to fret over. But the truth is that the legal decisions SCOTUS makes year end and year out affect human and civil rights and economic and environmental justice. That is as grassroots as it gets.

The intersection of SCOTUS actions and the social welfare of marginalized Americans is unmistakable. As the SCOTUS begins its 2024-25 session, the social work profession must demand the justices serving on our nation’s highest court live by ethical standards far above those of the average citizen.

If the absence of formal ethical guidelines leads to justices clearly crossing the line – as in the cases of Justices Thomas and Alito – Chief Justice John Roberts is obliged to work with Congress to develop and implement such standards.

Hundreds of lower federal court judges are already required to follow ethical standards. The SCOTUS justices are no better than them.

Crisitello was an elementary school art teacher who was terminated by her employer, a Catholic elementary school, after she became pregnant while unmarried.

The school argued that despite Cristello’s actual job duties as an art teacher, the “ministerial exception” to workplace civil rights laws under the New Jersey Law Against Discrimination applied.

Cristello did not teach religion or religious texts or counsel her students in prayer or other religious activities. In the amicus brief, NASW argued the Catholic school’s application of the ministerial exception was overbroad and would provide a roadmap for the more than 600 New Jersey schools with religious affiliations to evade workplace civil rights laws.

The New Jersey Supreme Court on August 14, 2023 issued a decision agreeing with the Catholic school and upholding the religious tenets exception to the New Jersey Law Against Discrimination. This expansion of the ministerial exception risks threatening the civil rights of thousands of New Jersey employees.

NASW advocates for effective enforcement of anti-discrimination laws and regulations that prohibit discrimination in the workplace.

Women, people of color, older workers, workers with disabilities, LGBTQ workers, immigrant workers, and those with multiple and intertwining identities, continue to face employment discrimination at alarming rates, despite decades of civil rights protections.

Any curtailing of these protections severely harms these communities. It was our hope that the court would understand that these groups would be at risk for further discrimination in the workplace through this unwarranted expansion of the ministerial exception. 

When the Supreme Court finally declared the Civil Rights Act of 1875 unconstitutional, Frederick Douglass, amid an outpouring of outrage, advised that we must first take a collective deep breath.  

The Supreme Court had killed the law that guaranteed African Americans access to public accommodations and stopped barring them from serving on a jury on the grounds it didn’t control actions of individuals.

It appeared this reviled 1883 decision would grind African American progress to a halt.

“We may be better prepared to speak calmly and wisely than is possible now. We have been grievously wounded in the house of our friends, and the wound is too fresh, too deep, and too painful for the measured speech of ordinary occasions,” Douglass said at the time.

Taking a collective deep breath was good advice then and it is a good first step now.

In June, the Supreme Court ruled on behalf of Students for Fair Admissions (SFFA) that the constitution doesn’t allow public or private higher education institutions to consider race as a part of the admission process because it violates the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

With that, more than 60 years of work to diversify schools and provide opportunities for minorities was undone.

The Supreme Court has a history of devastating decisions.  

• Cases like the 1857 Dred Scott v Sandford, where an African American slave sued for his freedom, and the court decided Blacks were not citizens. Chief Justice Roger Taney uttered his infamous racist line that African Americans, “had no rights which the white man was bound to respect.” 
• And the 1896 Plessy v Ferguson case, which enshrined the country’s separate but equal doctrine, giving legal cover to the creation of the Jim Crow system until Brown v Board of Education in 1954 declared state-sanctioned school segregation unconstitutional.

In June, Chief Justice John Roberts’s majority opinion eradicating affirmative action referred to Brown when he said, “Eliminating racial discrimination means eliminating all of it.”

• Roberts’s words eerily echoed Supreme Court Justice Joseph Bradly who in 1883 questioned whether the Civil Rights Act of 1875 was even necessary. “When a man has emerged from slavery … there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws …”

For us this means the highest court in the land is too fickle to stake our survival on.

As early as 1830, Richard Allen, who founded African Methodist Episcopal Church (AME), the first independent Black denomination in the United States, presided over the First Convention of Free Persons of Color to debate whether the legal process could lead to racial justice.

Judge A. Leon Higginbotham, Jr., a prominent federal appeals court judge and legal scholar answered the same question in 1974 when he said, “we must make major efforts in other forums without exclusive reliance on the federal legal process.”

Each legal setback is a renewed call for action.

This most recent decision should encourage all of us to invest in the educational institutions we have built to overcome oppression. Research shows that historically Black colleges and universities (HBCUs) and not majority white institutions, created the African American middle class and are still the drivers of socioeconomic mobility for low-income African American students. Their mission has not changed.

This most recent decision should also remind us that African Americans have always had to fight for justice while surviving in the midst of injustice.  The Supreme Court didn’t kill our progress in 1883. It won’t destroy our progress in 2023.

About The Author

Chad Dion Lassiter, MSW, is a nationally recognized expert in race relations. He has worked on race, peace, and poverty-related issues in the United States, Africa, Canada, Haiti, Israel, and Norway, and is frequently featured in the media providing commentary and solutions to racial issues. Lassiter is currently executive director of the Pennsylvania Human Relations Commission, where he has legislatively delegated authority to investigate filed complaints alleging the occurrence of unlawful discrimination in the areas of employment, housing and commercial property, education, and/or regarding public accommodations.

In this decision the Michigan Supreme Court overruled a previous holding that refused to apply the equitable-parent doctrine to same-sex couples who were unable to wed. One caveat to this ruling is that the same-sex couples need to show that they would have married before the child’s conception or birth if there had not been a ban on same-sex marriages.

We also want to thank NASW Michigan Chapter Executive Director Duane Breijak for getting us involved in this matter.

Background

The National Association of Social Workers,  including its Michigan Chapter, submitted an amicus brief on March 10, 2023, to the Michigan Supreme Court as it hears the case Pueblo v. Haas. The case will determine custody rights for separated unmarried LGBTQ couples.

The case concerns Carrie Pueblo and Rachel Haas – partners in a committed same-sex relationship – who chose to have a child together using assisted insemination, with Haas carrying the child. In 2014, the relationship ended before same sex marriage was legalized by the U.S. Supreme Court, but they continued to share custody and parenting of the child.  

In 2017, Haas requested that Pueblo have no further contact with their child.  Pueblo filed a complaint seeking joint legal and physical custody.

The trial court and the Michigan Court of Appeals ruled in Haas’ favor, finding that because Haas and Pueblo were never married, and Pueblo is not a legal parent or related to the child, she has no right to assert custody. Pueblo’s case is now before the Michigan Supreme Court. 

NASW submits amicus briefs to offer the social work perspective in court cases that impact social workers and the communities they support. The amicus brief in this case urges the court to consider the best interests of the child.

Making an unnecessary change to a child’s relationship with their parent can cause serious emotional harm to the child. Social science research confirms that the bonds of attachment are critical for a child’s healthy development. It does not matter whether there is a biological or legal connection between the parent and child. 

NASW supports protecting the familial attachments between LGBTQ couples and their children and recognizes that these familial relationships are of the same strength, depth, and importance to the healthy development of children as the relationships of opposite-sex couples and their children.  

The case concerns Carrie Pueblo and Rachel Haas — partners in a committed same-sex relationship — who chose to have a child together using assisted insemination, with Ms. Haas carrying the child. In 2014, the relationship ended before same sex marriage was legalized by the U.S. Supreme Court, but they continued to share custody and parenting of the child.  

In 2017, Ms. Haas requested that Ms. Pueblo have no further contact with their child.  Ms. Pueblo filed a complaint seeking joint legal and physical custody. The trial court and the Michigan Court of Appeals ruled in Ms. Haas’s favor, finding that because Ms. Haas and Ms. Pueblo were never married, and Ms. Pueblo is not a legal parent or related to the child, she has no right to assert custody. Ms. Pueblo’s case is now before the Michigan Supreme Court.  

NASW submits amicus briefs to offer the social work perspective in court cases that impact social workers and the communities they support.

The amicus brief in this case urges the court to consider the best interests of the child. Making an unnecessary change to a child’s relationship with their parent can cause serious emotional harm to the child.

Social science research confirms that the bonds of attachment are critical for a child’s healthy development. It does not matter whether there is a biological or legal connection between the parent and child. 

NASW supports protecting the familial attachments between LGBTQ couples and their children and recognizes that these familial relationships are of the same strength, depth, and importance to the healthy development of children as the relationships of opposite-sex couples and their children.  

Other organizations filing amicus briefs were ACLU of Michigan, the Family Law Section of the State Bar of MI, GLBTQ Legal Advocates & Defenders (GLAD), Lambda Legal Defense & Education Fund, LGBTQA Law Section of the State Bar of Michigan, Affirmations LGBTQ+ Community Center, the American Academy of Matrimonial Lawyers, MI Chapter, and the National Center for Lesbian Rights.

The court has until July 31, 2023 to issue an opinion on the case.

NASW’s involvement in this case was coordinated by its Legal Defense Fund (LDF). Since 1972, the LDF has provided financial legal assistance and support for legal cases and issues of concern to NASW members and the social work profession. LDF supports educational projects and programs to improve the legal status and knowledge of the social work profession.

Learn more about NASW’s Legal Defense Fund.

Read more about this case

• LGBTQ child custody case goes before Michigan Supreme Court (MLive)
• Custody rights for separated LGBTQ couples could be affected by Michigan Supreme Court case (USA Today)
• Read the brief in NASW’s Legal Defense Fund amicus brief database (NASW members only)

Social workers cannot assume they will stay in their jobs for a long time.  Most social workers stay in a job for fewer than five years. When you leave your job, you might leave your clients too. You might consider: “Can I bring my clients with me?” An instinctive response might be, “Of course!” But the answer is more complicated.

Social workers serve a variety of clients, in many capacities, for many different types of employers. Relationships with clients can be one-time, short-term, or last months or even years. When client relationships are established should the social worker terminate that relationship? Isn’t that unethical to the client? Shouldn’t the client be able to leave with the social worker? But, if the client leaves to follow the social worker, isn’t that unethical to the agency? Or illegal? What if the social worker signed a contract with a “non-compete” or “non-solicitation” clause when they started the position?

As relationships develop between social workers and their clients, a reliance on the social worker may form. The relationship between client and social worker can be vital to the likelihood of progress. So, when the social worker leaves their employer, the client might want to go with the social worker. 

To avoid these situations, employers might insert “non-compete clauses” or “non-solicitation” agreements into employment contracts. Non-compete clauses prohibit employees from competing with their former employer when they leave their job. Some clauses include a limitation on where the employee can perform similar work, delineating a radius in miles, and a specific amount of time. Non-solicitation agreements prohibit employees from taking clients from the employer with them when they leave.

Non-compete and non-solicitation clauses are not always legal. Their validity varies by state. New York state established a test for validity of these clauses on a case-by-case basis. A clause is considered valid in only if it meets these four standards:

1. Not greater than required to protect of employer’s legitimate interest,
2. Does not impose undue hardship on employee, and 
3. Is not injurious to the public, and
4. Is reasonable in time period and geographic scope.  

In Massachusetts, there is a ban on non-compete clauses in social work employment contracts that use a geographic limitation (MA Gen L ch 112 § 135C); Non-solicitation is not explicitly addressed in the Massachusetts statute. 

California law states: “[E]very contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is… void.” (CA BPC §16600). California courts have found both non-compete and non-solicitation clauses invalid, with the exception of certain situations that are not, generally, social work related. 

Colorado law generally prohibits non-compete agreements (Co. Rev. Stat. Sec. 8-2-113), including non-solicitation clauses relevant to social work practice.

In January, 2023, the Federal Trade Commission (FTC) proposed a ban on non-compete clauses, across industries, arguing that they are “exploitative”, hinder innovation and harm consumers. The FTC’s concern for consumers is similar to the relevant reasoning found in the NASW Code of Ethics.

The NASW Code centers concern for the best interests of clients when a social worker is leaving their employer.  Section 1.17 [Termination of Services], states in pertinent part that: 

“[s]ocial workers should take reasonable steps to avoid abandoning clients who are still in need of services…Social workers who anticipate the termination or interruption of services to clients should notify clients promptly and seek the transfer, referral, or continuation of services in relation to the clients’ needs and preferences… Social workers who are leaving an employment setting should inform clients of appropriate options for the continuation of services and of the benefits and risks of the options.”  

The NASW Code, therefore, allows social workers to transfer clients or continue services after leaving, as long as the focus is on the client’s best interests, and their autonomy. The NASW Code does not address, specifically, the validity of non-compete or non-solicitation clauses. However, a reading of the Code would suggest that when there is a negative impact on a client’s best interests, these clauses would be unethical, even if not illegal.

When leaving a job and wondering if you can bring your clients with you to your new position, consider:

Did you sign a contract that included a non-compete or non-solicitation clause? 

• If you did, determine the law in your state. If the contract terms are valid in your state, then you will need to abide by the contract, or be prepared to defend a breach of contract. If the contract terms are not valid in your state, proceed as if the contract did not exist.
• If you did not, then whether you offer your client the option to continue with you to a new position should be grounded in supporting client self-determination to decide what is best.

As the validity of non-compete and non-solicitation clauses is currently being examined, social workers should focus on minimizing harm to our clients. 

About the Authors

Daniel Pollack, MSW, JD is a Professor at Yeshiva University’s School of Social Work in New York. dpollack@yu.edu.

Kathryn Krase, PhD, JD, MSW is the Principal Consultant at Krase Consulting.
Kathryn@kraseconsulting.com

Disclaimer: The National Association of Social Workers invites members to share their expertise and experiences through Member Voices. This blog was prepared by the author in his/her personal capacity and does not necessarily reflect the view of the National Association of Social Workers.