LGBTQI Youth in Juvenile Justice Settings: Closing the Gap between Recommended Practice and Reality Transgender and Gender-Expansive Youth in Juvenile Justice Settings: Closing the Gap between Recommended Practice and Reality Transgender and Gender-Expansive Youth in Juvenile Justice Settings: Closing the Gap between Recommended Practice and Reality Currey Cook, Esq. Youth in Out-of-Home Care Project Director Lambda Legal National Juvenile Justice Network Forum July 2018

LGBTQ Youth – Vicious Cycle Rejection & Neglect at Home Unsafe Schools Additional Factors Youth Experiencing Homelessness Juvenile Justice System Foster Care

What are the numbers in foster care? TRANSGENDER 5.6% 13.4% 19.1% LGBTQ The Williams Institute 2013 Sexual & Gender Minority Youth L.A. County Foster Care LGBQ

Child Welfare to Homelessness Pipeline – V. LGBTQ Reunification Adoption Family Guardianship Kinship Care APPLA LGBTQI youth are at an increased risk of being involved with these systems in large part due to family rejection. There will always be LGBTQI youth in these systems even if youth were no-longer rejected by their parents. Some LGBTQ youth will likely always be a part of these systems because of poverty, mistreatment or victimization beyond their control, delinquent activity unrelated to their LGBTQI identity, etc. Make sure to mention that while the dominant narrative about trafficked or commercially sexually exploited youth is that they are heterosexual, non-transgender girls, existing data and anecdotal information indicates LGBTQ youth are over-represented in this population as well and are at increased risk because of high rates of homelessness and involvement in foster care. Unfortunately, trans youth and trans youth of color are particular vulnerable due to high rates of rejection and workplace discrimination leading to homelessness and survival crimes as the only way to obtain shelter or food. X family acceptance services family finding Foster Care X affirming homes Congregate Care X affirming placements Shelter X safety

40%

Way Too Many Pipelines while . . .

What are the numbers in juvenile justice? Source: Angela Irvine and Aisha Canfield, “LGBQ/GNCT Youth in the U.S. Justice System,” Impact Justice, 2016.

Surviving the Streets: Experiences of LGBTQ Youth, YMSM, YWSW Engaged in Survival Sex Meredith Dank, PhD Mitchyll Mora Justice Policy Center Streetwise and Safe Urban Institute

Living Situation

Arrest Charges

Professional Standards & Legal Obligations

Professional Standards Child Welfare League of America American Psychological Association American Medical Association American Academy of Child and Adolescent Psychiatry World Professional Association for Transgender Health (WPATH) National Commission on Correctional Health Care Federal Advisory Committee on Juvenile Justice Office of Juvenile Justice and Delinquency Prevention

American Academy of Child and Adolescent Psychiatry Position Statement on Transgender Youth in Juvenile Justice and other Correctional Settings No discrimination based on gender identity House all youth consistent with their identity, as they define it Provide youth with psychiatric and medical care consistent with national standards

Federal Advisory Committee on Juvenile Justice Recommendations of the LGBTQ Subcommittee SOGIE inclusive nondiscrimination policy Affirmation of identity Access to qualified providers Facilitate family and community support Training for staff Data collection

Legal Obligations U.S. Constitution Federal Law State Law

U.S. Constitution Due process Equal protection Free expression Free exercise of religion Prohibition on cruel and unusual punishment

Federal Law Juvenile Justice and Delinquency Prevention Act Omnibus Crime Control Act PREA Title IX of Civil Rights Act of 1964 Affordable Care Act

Quotes from Case Law “By definition, a transgender individual does not conform to the sex‐based stereotypes of the sex that he or she was as‐ signed at birth.” Ash v. Whitaker, 7th Circuit Court of Appeals, Title IX Failure of the facility to maintain: “(1) policies and training necessary to protect LGBT youth; (2) adequate staffing and supervision; (3) a functioning grievance system; and (4) a classification system to protect vulnerable youth.” R.G. v. Koller, U.S. District Court Hawaii, Due Process The policy directly interferes with Plaintiffs’ ability to define and express their gender identity, and penalizes Plaintiffs for exercising their fundamental right to do so openly by depriving them ofemployment and career opportunities. Karnoski v. Trump, U.S. District Court, Washington State, Due Process

State Law State constitution Juvenile justice code Public accomodations law Local ordinance

State Law - Regulations Definitions of sex (or gender) Admission procedures and facility licensing Sleeping arrangements Clothing Supervision Body searches Training requirements

National Landscape – JJ Law & Policy

Juvenile Justice Map https://www.lambdalegal.org/map/juvenile-justice

Explicit SOGI Nondiscrimination State-to-State 18 states & DC with JJ LGBTQ-specific policy 8 additional states SO & GI in law or policy 3 states SO & sex, 9 states sex only 4 states with no explicit protections (AK, NC, OK) Fears Related to Disclosure However, many youth keep that information about themselves hidden and have fears around disclosure. They are, of course, in various stages of awareness and comfort with their sexual orientation and gender identity, and may have many unresolved issues themselves. Cultural norms may prevent a youth from disclosing, as well as negative messages they have received from the larger culture. Young people are also afraid that their sexual orientation or gender identity will become the filter through which their behavior is interpreted, regardless of what their behavior is. Too much importance may be given to their SO/GI. Existing research has found, over and over again, that service systems and residential programs do not appropriately serve GLBT youths. Differential Treatment They may not be allowed to share a room with another youth. Different standards may be applied to them around dating and pursuing romantic relationships. They suffer disapproval and rejection from caseworkers, foster parents, residential program staff, and their peers in foster care.

LGBTQ-Specific JJ State Policy SOGIE-inclusive nondiscrimination policy Terms and definitions Ban “conversion therapy” and disparagement, require use of respectful language Intake, classification, housing Competent medical and mental health providers Fears Related to Disclosure However, many youth keep that information about themselves hidden and have fears around disclosure. They are, of course, in various stages of awareness and comfort with their sexual orientation and gender identity, and may have many unresolved issues themselves. Cultural norms may prevent a youth from disclosing, as well as negative messages they have received from the larger culture. Young people are also afraid that their sexual orientation or gender identity will become the filter through which their behavior is interpreted, regardless of what their behavior is. Too much importance may be given to their SO/GI. Existing research has found, over and over again, that service systems and residential programs do not appropriately serve GLBT youths. Differential Treatment They may not be allowed to share a room with another youth. Different standards may be applied to them around dating and pursuing romantic relationships. They suffer disapproval and rejection from caseworkers, foster parents, residential program staff, and their peers in foster care.

LGBTQ-Specific JJ State Policy Trans youth – placement, name/pronouns, clothing/hygiene, searches, medical Youth education and grievance process Confidentiality Training requirement Information, family support, and community support Fears Related to Disclosure However, many youth keep that information about themselves hidden and have fears around disclosure. They are, of course, in various stages of awareness and comfort with their sexual orientation and gender identity, and may have many unresolved issues themselves. Cultural norms may prevent a youth from disclosing, as well as negative messages they have received from the larger culture. Young people are also afraid that their sexual orientation or gender identity will become the filter through which their behavior is interpreted, regardless of what their behavior is. Too much importance may be given to their SO/GI. Existing research has found, over and over again, that service systems and residential programs do not appropriately serve GLBT youths. Differential Treatment They may not be allowed to share a room with another youth. Different standards may be applied to them around dating and pursuing romantic relationships. They suffer disapproval and rejection from caseworkers, foster parents, residential program staff, and their peers in foster care.

Overview Federal Law & Policy State Law & Policy State-based regs using sex (or gender) Tips from providers Tips from youth

Currey Cook ccook@lambdalegal.org 212.809.8585 x241 Contact Information Currey Cook ccook@lambdalegal.org 212.809.8585 x241