New ‘wide-sweeping’ Idaho law gives parents rights to access therapy notes, withhold care

BOISE (Idaho Statesman) — If you’re a 17-year-old in Idaho, what you tell your therapist may not be kept private. State law now grants someone else the rights to those records: your parents.

The new law, which took effect in July, gave parents more access to medical records for older teens and requires parental consent for health treatments in nearly all cases, a change state legislators said bolsters parental rights. But legal and policy experts told the Idaho Statesman the change adds another stressor for LGBTQ+ youth and has broad implications for vulnerable teens.

As Republicans in the Legislature limited health care for transgender patients, LGBTQ+ advocates said the law may be another response to gender-affirming care for kids and abortion.

The law could pose challenges for older teenagers seeking medical care, said Caitlin O’Brien, a health care attorney at Idaho firm Smith and Malek. O’Brien said transgender teenagers whose parents don’t want them to receive mental health treatment could now face a “huge gap,” but believed the law’s impacts will likely be much broader.

Already, the Idaho State Police is concerned that the law could impede criminal investigations into a parent’s sexual abuse of their child, according to Idaho Reports.

“It now has become wide-sweeping to all health care, and I don’t think they realize the implications of that,” O’Brien told the Idaho Statesman.

‘A big gap in care for these kids’

Under the law, doctors can’t administer most services to people under 18 without prior consent from their guardians. It also requires that any health data about a child be available to their parent in almost all cases, which would include doctors’ or therapists’ notes. Previously, state law generally required consent from children over 14 to release the details of their mental health treatment to their parents.

The law contains exceptions for when death is “imminent,” or when the doctor cannot locate the teen’s parents and believes their “life or health would be seriously endangered by further delay.”

“This bill doesn’t prevent a child from going to get help,” said Senate Majority Leader Kelly Anthon, a Burley Republican who sponsored Senate Bill 1329, on the Senate floor in February.

Before its passage, parental consent was still largely needed, but there were exceptions: for sexually transmitted infections and other disease testing, birth control, substance abuse treatments, or blood donations. There was also a blanket rule that doctors could provide health care if they believed the teen understands the nature of the treatment.

Many of the previous exceptions have been for sensitive medical topics, for which youth would be less likely to seek help if their parents knew about it, O’Brien said. State laws also allowed for “surrogate” decision makers, allowing relatives or others who are close to a child to consent to health care in certain instances.

“Now that goes out the door,” O’Brien said. She gave an example: What if a parent is in jail, and their grandparent takes them to a doctor but is not their court-appointed guardian?

“It’s causing a lot of chaos because there are many children in Idaho that don’t have a (biological) or adoptive parent present in their lives, and they don’t have another legal guardian available to consent for their health care,” O’Brien said. “It leaves a big gap in care for these kids.”

Sponsor says Idaho bill protects therapists

Republican lawmakers this year also implemented a law that allows counselors to refuse to work with a client whose goals they object to.

Senate Bill 1352 gave therapists the option to reject counseling someone whose behaviors conflict with the therapist’s “sincerely held religious, moral or ethical principles.”

“Within the context of all the anti-LGBT legislation, this seems to be another venue for therapists to target LGBT people,” said Ilan Meyer, a public policy scholar at the University of California, Los Angeles’ Williams Institute, which focuses on sexual orientation and gender identity.

Misty Lloyd, a photographer in Pocatello who identifies as queer, told the Statesman by phone that she has been in therapy for years and is worried about what the effects of the two laws could be.

“Even if (therapists) don’t enforce their beliefs with their clients, I’m scared they’ll do more harm than good once they are able to place their religion ahead of their clients,” she said. “It’s really scary to think about those people having that kind of legal protection to embrace their bigotry.”

She also fears the parental rights bill will make it harder for kids seeking mental health treatment, she said. When she was young, there were topics that she wasn’t comfortable talking to a parent about but would have been comfortable talking to a doctor about.

Rep. Julianne Young, R-Blackfoot, pitched the therapy bill, Senate Bill 1352, as a measure to protect the conscience of medical providers. Young did not respond to a request for comment.

“This bill will ensure that people of integrity feel comfortable entering into the field of counseling,” she told a Senate committee in February. The law would guarantee that “Idaho’s legal environment protects their right to practice in a way that’s consistent with their sincerely held principles.”

Young cited examples of potential conflicts: a counselor opposed to abortion or one working with a patient conducting “self-harm” who wants to be “reinforced” in their activities. The bill does not require counselors who won’t provide care to offer their patient a referral.

Alliance Defending Freedom influences Idaho law

The therapists’ rights bill was influenced by the Alliance Defending Freedom, a national conservative Christian advocacy law firm that has become a powerful litigator on the right. Young leaned on the group during the hearing, citing an ADF survey of religious medical providers who want to maintain their personal beliefs on the job.

Over the past two decades, the organization has made opposition to LGBTQ+ rights one of the pillars of its work, opposing gay marriage, transgender rights and previously supporting state sodomy laws. As some states have outlawed youth conversion therapy, or the practice of trying to change a child’s sexuality or gender identity, the ADF has pushed to allow it.

In one prominent case, a marriage and family counselor in Washington sued the state over a law banning conversion therapy, which aligns with guidelines from major medical organizations that uphold acceptance of patients’ sexuality and gender identity as key to patient health. ADF represented the Washington counselor in an appeal to the U.S. Supreme Court, which rejected the appeal in December. (On its website, the ADF says it does not support conversion therapy, but thinks adults should be allowed to make “changes in any area of their lives.” In an emailed statement, Matt Sharp, the ADF’s senior counsel, said the law would create more diversity in counseling by ensuring “more counselors can enter the profession without fear of being punished or losing their license.” He added, “Should a counselor be forced to support a client’s goal to obtain assisted suicide in a neighboring state? Or would we require an atheist counselor to tell a person of faith that there is a God if the client is wrestling with faith-based issues?”)

An Idaho-based group whose views often overlap with ADF, the Idaho Family Policy Center, also testified in support of Young’s bill. Grace Howat, a policy assistant for the center, said liberals are forcing conformity in “ascendant political and moral positions, especially on issues related to sexuality and gender.” Counselors should not face consequences for providing “talk therapy intended to help patients overcome unwanted same sex attraction or gender confusion,” she said.

The new law also prohibits professional associations from disciplining counselors for practices that violate their ethics policies but are allowed under the law.

The American Psychological Association’s guidelines on treating sexual minorities and transgender people emphasize acceptance of a patient’s stated identities and aims. The Idaho Counseling Association, which is a member of the American Counseling Association, also follows ethical guidelines that advise therapists to avoid providing counsel based on personal beliefs and to seek training if they think they’re at risk of imposing their personal values on their clients.

Liz Hatter, a lobbyist for the Idaho Counseling Association, told lawmakers at the Senate hearing that the group opposed the bill primarily because it does not require providers to offer referrals, which she said was an “ethical duty.” Hatter referred a Statesman inquiry to the association’s president, Stefanie Sherman, who canceled an interview after the newspaper sent her its questions.

Meyer said the guidelines of health professionals are designed for patients’ well-being, and that the idea that acceptance is a “left-wing ideology” is “completely out of touch with reality.” He noted that homosexuality has not been treated as a disorder for nearly 50 years.

“The rhetoric around it sounds like misplaced concern about the therapist’s well-being compared to the patient’s well-being,” he said. “It is the patient that we need to worry about.”

Idaho lawmakers debate parental rights

Young defended her bill by arguing that it’s unfair to mental health workers to push them to endorse patient goals they disagree with, and that requiring referrals would be tantamount to forced participation. A number of therapists, including Christian counselors, testified in support.

In response to a question from Sen. Melissa Wintrow, D-Boise, about whether a patient’s gay or transgender identity could allow a counselor to decline to provide them with any counseling, Young said the answer would depend on the patient’s goals.

“We’re not talking about turning away people because they don’t live perfect lives,” Young said.

Meyer said that while parental support is desirable for any child’s care, the purpose of allowing privacy for older kids is to encourage treatment, whatever the issues are. If a child has questions about their sexuality, one topic they would likely explore with a therapist would be how to talk to their parents about it, he said.

Most Democrats opposed Anthon’s and Young’s bills. Debating against Anthon’s bill, Wintrow said the law would make it harder for older teenagers to get help.

She said her “dad was scary,” and that there was “no way” she would go to her parents for help on certain topics when she was young.

“Young adults are starting to grow and they have the rights to their body and access to mental health treatment as well, especially if somebody isn’t going to be supportive of that or might deny them of that,” she said.

Anthon, who also cosponsored Young’s bill, said parents have a “natural right” to raise their child as they wish.

“They have the right and the responsibility to decisions that are in their child’s best interest, and they have that right without the undue interference of the government,” he said.