Among the tips below:
- Learn some terminology of the LGBTQ world.
- Find out how lawyers and judges can help make a difference in the lives of at-risk youth.
- Learn how to make yourself trustworthy and to show that the courtroom is safe.
Lesbian, gay, bisexual, transgender, and questioning (LGBTQ) people are a diverse group who have struggled with issues of sexuality and gender identity, and may therefore feel a sense of kinship. LGBTQ people are diverse in terms of race, ethnicity, age, education, political affiliation, income, and the degree to which they identify with other LGBTQ people.
A lesbian is a female whose primary sexual and romantic attractions are to other females. Some lesbians have romantic attractions to males and some don’t. It is important to note that some females who have sexual or romantic attractions with other females, sometimes exclusively, may not call themselves lesbians.
A gay male is a male whose primary sexual and romantic attraction is to other males. He may have sexual and romantic attractions to males currently or in the past. Some gay males may never have had sexual or romantic attractions to other males for a host of reasons (age, societal pressures, lack of opportunity, fear of discrimination), but nonetheless realize that their sexual and romantic attraction is mainly to other males. Some gay males have sexual and romantic attractions with females and some don’t. Note that some males who have sexual and romantic attractions with other males, sometimes exclusively, may not call themselves gay.
“Gay” is also used as an inclusive term encompassing gay males, lesbians, bisexual people, and sometimes even transgender people. In the last 20 years, this has become less and less common and “gay” is usually used currently to refer only to gay males. The term is still often used in the broader sense in spoken shorthand, as in “The Gay Pride Parade is at the end of June.”
Bisexual males and females have sexual and romantic attractions to both males and females. Depending upon the person, his or her attraction may be stronger to females or to males, or they may be equal. Some people who have sexual and romantic attractions to both males and females do not consider themselves bisexual. Bisexuals are also referred to as “bi.”
People who identify more strongly with the other gender than the one to which they were assigned (e.g., females who feel like males, or males who feel like females) are called “transgendered.” Some transgendered people may “cross-dress” or “do drag” regularly or for fun (and many of these people are comfortable in their assigned gender). Other transgendered people may take hormones of the opposite gender and/or have surgery in order to change their bodies to reflect how they feel inside. These people are also called “transsexual.” Transgendered people may identify as heterosexual, homosexual, or bisexual.
Refers to a person for whom a fixed sexual orientation and/or gender identity is not clear. Some questioning individuals may ultimately “come out” as LGBT, whereas others may be seeking additional resources to help address their internal questions. It is not developmentally uncommon for adolescents to question their sexual orientation or gender identity.
A heterosexual male or female’s primary sexual and romantic attraction is to people of the other sex. She or he may or may not have had romantic contact with another person, but still realize that his/her sexual and romantic attraction is mainly to people of the other sex. Some people who consider themselves heterosexual have or have had romantic contact with people of the same sex. Heterosexual people are also referred to as “straight.”
At birth, we are assigned one of two genders, usually based on our visible genitals. For many people this gender assignment fits and feels comfortable and they never think about it further. Others do not feel as comfortable with their assigned gender, either because they find the two-gender system too limiting or because they feel more identification with the gender opposite that to which they were assigned at birth. People deal with this discomfort in many ways, sometimes only in personal ways, and sometimes in ways visible to others.
Sexual orientation refers to one’s sexual and romantic attraction. Those whose sexual orientation is to people of the opposite sex are called “heterosexual,” those whose sexual orientation is to people of the same sex are called “homosexual” (or lesbian or gay), and those whose sexual orientation is to people of both sexes are called “bisexual.” The term “sexual preference” is misleading because it implies that this attraction is a choice rather than an intrinsic personal characteristic. Sexual orientation is not necessarily the same as sexual behavior.
Some LGBT people, particularly young people living in the coastal U.S., use the term “queer” to encompass the entire LGBT community. For these people, the term “queer” is positive and empowering. Other LGBT people find this term degrading.
Source: These definitions were adapted from definitions prepared by the Seattle & King County, WA Public Health Department, and the Child Welfare League of America.
Your Role in Protecting LGBTQ Youth
- Some studies suggest lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth are two times more likely to attempt suicide than their heterosexual peers.1
- Between 11% and 40% of homeless youth are LGBTQ.2 Over half of homeless youth have spent some time in foster care.3
- LGBTQ youth are two times as likely to be threatened or injured with a weapon at school and two times as likely to skip school because they feel unsafe.4 Sixty-nine percent of LGBTQ youth reported experiencing some form of harassment or violence.5
The reality is the statistics and stories are mostly grim for LGBTQ youth in foster care. Whether they enter foster care because their parents reject them due to their LGBTQ status or they disclose their LGBTQ status while in foster care, these youth face discrimination, harassment, and violence because of their sexuality or gender identity.
“Ignorance can only be remedied with knowledge. The system is broken; the only way to change it is through advocacy.”6
“I use gender-neutral language when asking my clients about their dating life.”7
“I have a folder on my bench with resources for different issues (e.g., domestic violence). If I had resources for LGBTQ youth, I would include them and give them to people that need it.”8
Lawyers and judges can help change these statistics. Lawyers who develop relationships with LGBTQ clients and provide appropriate representation can make a difference for these youth. Judges who ask the right questions and insist on appropriate services and fair and respectful treatment can protect this vulnerable population and help them become successful adults. This article discusses the risks facing LGBTQ youth in foster care. It also describes the roles judges and lawyers must play in these young people’s lives to protect them from these risks and help them succeed.
A Life of Risks
LGBTQ youth have special risks related to their sexual orientation and gender identity that set them apart from non-LGBTQ youth in foster care. The social stigma attached to LGBTQ people causes these youth to hide their identities, fear for their safety, and often turn to drugs to cope. Higher suicide rates and violence in schools are two of the many risk factors to be aware of when working with LGBTQ youth in foster care.
Studies show LGBTQ youth are twice as likely as non-LGBTQ youth to attempt suicide. Others put the number closer to four times as likely.9 Aside from typical adolescent turmoil, LGBTQ youth face significantly greater conflict due to their sexual orientation or gender identity. They don’t have the same feelings as their peers about sexual attraction or sense of identity. During adolescence, youth explore their identities and find where they fit. LGBTQ youth struggle with loneliness and feeling different: “I knew that I was different, no one ever told me, but I just knew.”10 This feeling, coupled with being in foster care and having limited support, makes some youth think they have no way out. One youth explains it: “As I got older through high school, it started to get even worse because I attempted suicide many times. It was too much. It was like at first I did it because I wanted people to say hey look, you know, look at me, pay attention to me. But after that I was placed at St. Jude’s, and that’s when I started to realize and accept that I was gay.”11
When youth disclose their LGBTQ status to their parents or foster parents, the result is sometimes devastating. They are often rejected by people they rely upon for housing, food, and unconditional love and acceptance. Some youth voluntarily leave to escape the harassment or violence they experience at home. Some youth are forced to leave because the family does not accept their LGBTQ status: “One day my father heard me talking on the telephone to a guy who I had met. When I got off the phone he just went crazy on me. . . . He told me to get out and literally threw me out the front door. I was devastated and didn’t know where to go.”12 Some youth travel from sofa to shelter to street corner. They often have no permanent place to call home. On the streets they are more susceptible to violence and crime.
Youth spend the majority of time at school. It is supposed to be a place to feel safe and accepted: “Safety holds different meaning for LGBTQ kids: School is hard. Any situation can mean danger. Just because they are in stable placement doesn’t mean they are safe. We are quick to assume that the world likes gay people. [The] simple fact of being queer puts people at risk (physically and mentally). Judges and lawyers should start with these understandings and then take the step to question safety.”13
School is the place where youth learn to interact with peers and form trusting relationships that often last into adulthood. LGBTQ youth in foster care have the added burden of moving from placement to placement and changing schools. They experience harassment and rejection through multiple school placements. They often do not have supportive teachers or counselors to turn to for help. Many end up dropping out or doing poorly in their studies.
Seventy-four percent of LGBTQ youth in foster care believe they experience prejudicial treatment by service providers because of their sexual orientation or gender identity.14 Youth often believe professionals accept people regardless of their differences. Sometimes they are wrong. Many youth in foster care find the professionals who work with them are just as harmful as the parents who abused them or the peers who harassed them. This realization is harmful because youth feel they have no where to go for support. The people who are supposed to support, care for, and provide treatment are often the perpetrators of the harassment, intolerance, and sometimes violence.
One LGBTQ youth reported that he was in a religious foster home where it was not OK for him to be gay: “I had my own lock box with my stuff in it. They broke into it one day while I was at school. When I got home, they had me all packed up, because I was gay. I left town.”15 Another youth reported: “When I was in a group home, I was assaulted because I’m gay. I didn’t appreciate that I had to take it. The staff knew what was going on but they didn’t try to stop it.”16
Still another youth reported that although most staff did not say anything to his face he overheard staff saying things like: “That new fag kid that just came in. Why do they make us put up with these gay children? Why do they ship them here? No wonder their parents get rid of them.”17
LGBTQ youth are twice as likely as heterosexual youth to abuse alcohol, and eight times as likely to use cocaine/crack.18 Using and abusing illegal substances is a common way that youth escape their troubles. LGBTQ youth in foster care have especially high rates of substance abuse due to their circumstances. Isolation, rejection, harassment, and violence can all be forgotten by getting high.“[P]ot, acid, ecstasy, speed . . . I did it all. I just wanted to kill the loneliness I felt inside. I really didn’t care if I lived or died. Trying to deal with my identity was a really difficult time for me.”19 They have limited exposure to positive coping tools and turn to substances to deal with the problems in their life.
By becoming aware of the risks associated with LGBTQ youth in foster care, lawyers and judges can take steps to address these issues. The fact that a youth is LGBTQ will factor into placement, permanency, services, advocacy, and court rulings.
Youth in foster care interact with social workers, foster parents, mentors, court appointed special advocates (CASAs), therapists, teachers, and other professionals. These professionals try to do what is in the child’s best interests. Lawyers and judges have unique roles when the sexual orientation or gender identity of a client is an issue in a case. Judges and lawyers should not leave this issue up to the child welfare agency and other professionals to address.
The judge is the gatekeeper for a youth’s safety, permanency, and well-being. Everyone follows the judge’s lead. The judge is unbiased and objective and decides what is in the child’s best interests. The judge decides whether the child comes into care, services for the child, visitation with parents and relatives, the child’s permanency plan, and whether the agency has made reasonable efforts to prevent removal and finalize a permanency plan. If the judge creates an open and supportive courtroom for all youth (including LGBTQ youth), insists the agency keep the youth safe, finds an appropriate placement, and asks all parties to respect the youth, then other professionals will follow the judge’s lead.
Lawyers or guardians ad litem (GAL) who represent children in dependency cases provide the voice of the child. The youth depends on the lawyer’s ability to know the system and advocate for her. Lawyers meet with the child, establish a lawyer-client relationship, request services from the child welfare agency, negotiate with parents, and advocate for the youth in court proceedings.
Sometimes youth only disclose their LGBTQ status to their lawyers because they are the only ones whom youth trust. Lawyers can help normalize the youth’s feelings, request LGBTQ-specific services, and address any unfair treatment. If the agency is not placing youth in supportive homes or getting appropriate services, lawyers can make reasonable efforts and cultural competency arguments. Finally, the lawyer can appeal unjust rulings. Lawyers need the tools to successfully address all issues that a youth may face. The youth must depend on the lawyer to have this knowledge and experience.
There is a problem when youth say: “I never got to go to court, I never even saw my lawyer” and “I wanted to speak on my own behalf . . . but I did not get to go [to court]. If I’m not there, present, my words can get twisted . . . I felt I was in care for longer because of this woman (GAL).” These youth need to be confident that their lawyers will advocate for them and that they will be involved in the process. One youth felt this way and revealed she had her lawyer’s cell phone number and could call and rely on her for anything. Because of the trusting relationship with her lawyer, this youth could tell her she was a lesbian. She felt heard and supported.20
LGBTQ youth endure out-of-home placement in foster care and the stigma of being LGBTQ. They cannot always rely on the agency to make things better. Judges and lawyers can make a difference in their lives.
Interacting With Youth
Judges and lawyers need to closely watch how they interact with LGBTQ youth. The following list is not exhaustive and should be supplemented based on your comfort level and knowledge of LGBTQ issues.
Whether known or not, lawyers and judges have preconceived notions when representing a child client or presiding over a dependency case. Some are appropriate, for example:
- Children shouldn’t live in unsafe homes.
- Youth are generally better off in family-like settings.
- Children need stability and permanency in their lives.
These notions are based on knowledge of the child welfare field, child development, and the best interests of children.
Some preconceived notions, however, can harm a youth and/or family. Some can be based on a lack of understanding and information. Judges must understand their own beliefs about sexual orientation and gender identity when presiding over dependency cases. They must learn the issues facing LGBTQ youth in foster care. Remaining objective does not require a judge to be free of these beliefs; it requires a judge to recognize them and to make rulings without imposing them on children and families. For example, a judge may feel uncomfortable with gender nonconforming behavior but have to remain objective when determining how to keep a transgender girl safe in a group home.
When interviewing and representing youth, lawyers should recognize their beliefs about sexual orientation and gender identity and not allow them to impact their representation. Developing a trusting relationship with a client is critical. If a youth feels she is being judged based on her sexual orientation, or her advocate has negative beliefs about homosexuality, she is likely to withhold information that may jeopardize her safety or permanency. For example, a youth who is being physically assaulted in her placement because she is a lesbian may not disclose the abuse to her lawyer if she thinks her lawyer has negative beliefs about homosexuality. She may become depressed and attempt suicide or run away to live on the streets instead of seeking a supportive environment with help from her lawyer.
Language (Verbal and Nonverbal)
One way a youth decides whether to trust a person is by observing that person (and his surroundings) and listening to his words.
- Is he polite?
- Does he explain who he is and why he is here?
- Does he take time to ask the youth questions to get to know the youth?
- Does he encourage the youth to talk?
- Does he have pictures of children and family around?
- Does he have books and posters around his office that signal inclusion and respect?
Lawyers have the ability within the first several minutes to establish the base for a trusting relationship.
Judges often have the opportunity to speak with youth during court hearings. Like lawyers, they can quickly show a youth whether the courtroom is safe.
- Does the judge address the youth?
- Does the judge speak with the youth respectfully and understand what the youth has had to endure?
- Does the judge let the youth speak?
Lawyers and judges must tailor their language so youth will feel comfortable opening up and disclosing their LGBTQ status. Knowing a youth’s LGBTQ status may help advocate for services and safety measures.
Children’s lives in dependency cases are often publicized for many to examine. The social worker knows about the youth’s home life, school progress, doctor appointments, test results, friends and social activities, and frequency of therapy appointments. Foster parents get reports about youth before they come into their homes. These reports are filled with details about the youth and the birth family. One youth reported that his foster parents were given a report when he was placed in their home at age six stating that he was gay. He expressed dismay because at six years old he did not know what being “gay” meant.21 The lawyers know most things that the social worker knows and have read and discussed the results of health professionals’ reports. The judge hears it all. Although hearings may be closed, inevitably people who don’t know the youth hear the most intimate details.
Sexual orientation and gender identity are intimate issues. Heterosexual youth have trouble discussing these issues. For LGBTQ youth, the situation is worse. Because stigma is often attached to LGBTQ people, youth may not disclose their status for fear of others finding out. Constantly living under this fear can spiral into any number of common risks facing LGBTQ youth. Lawyers and judges can help lift the fear and stigma by keeping communications confidential.
When representing a youth, the lawyer should explain that all communications (except a few circumstances) between the youth and lawyer are confidential and that the youth should feel comfortable telling the lawyer anything. The lawyer must stick to that promise. Many times lawyers with good intentions disclose information to social workers, foster parents, the judge, and others because they think it is in the best interests of the child. If youth are promised confidentiality, they may be more likely to disclose their LGBTQ status. The lawyer and the youth can then work together to decide if and when the youth should tell others.
If a youth is represented by a GAL or CASA, there is no confidentiality requirement. The GAL or CASA must discuss confidentiality with the youth and explain what communications will and will not be shared.
“I think foster care is hard enough in the best cases. LGBTQ youth already feel estranged and foster care does nothing to make them feel like they belong.”22
LGBTQ youth experience harassment, violence, homelessness, and rejection. Lawyers and judges can ensure this does not continue by using the legal system to make LGBTQ clients safe, give them permanency, and ensure their well-being.
1. Russell, Stephen T. and Kara Joyner. “Adolescent Sexual Orientation and Suicide Risk: Evidence From a National Study.” American Journal of Public Health 91(8),August 2001, 1276-1281.
2. Wardenski, Joseph J. “A Minor Exception?: The Impact of Lawrence v. Texas on LGBT Youth.” Journal of Criminal Law and Criminology 95, Summer 2005, 1363.
3. Mallon, Gerald P. We Don’t Exactly Get the Welcome Wagon: The Experience of Gay and Lesbian Adolescents in Child Welfare Systems. New York: Columbia University Press, June 1998.
4. Massachusetts Department of Education. 2001 Massachusetts Youth Risk Behavior Survey Results, September 2002. Available at www.doe.mass.edu.
5. GLSEN National. The 2003 National School Climate Survey: The School Related Experiences of Our Nation’s Lesbian, Gay, Bisexual, and Transgendered Youth, 2003. Available at www.glsen.org.
6. Judge statement, Opening Doors Project listening forum, Jacksonville FL, October 12, 2006.
7. Lawyer statement, Opening Doors Project listening forum, Denver, CO, July 28, 2006.
9. Healy, P. “Suicides in State Top Homicides.” Boston Globe, February 28, 2001, citing Massachusetts Department of Public Health study, cited above.
10. Youth quoted in Mallon, Gerald P., 1998, 22.
11. Ibid., 28.
12. Ibid., 50.
13. Scheyd, Karey, Deputy Director of Parent Recruitment, New York Administration for Children’s Services.
14. Wilbur, Shannon, Caitlin Ryan, and Jody Marksamer. CWLA Best Practices Guidelines: Serving LGBT Youth in Out of Home Care. Washington, DC: Child Welfare League of America, 2006, 6. Available online at www.cwla.org/pubs/.
15. Youth statement, Opening Doors Project listening forum, Jacksonville, FL, October 12, 2006.
16. Youth quoted in Out of the Margins: A Report on Regional Listening Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth in Care. Washington, DC: Child Welfare League of America and Lambda Legal Defense and Education Fund, 2006, 22.
17. Youth quoted in Mallon, Gerald P.,1998, 62.
18. CWLA/Lambda Joint Initiative. “LGBTQ Youth Risk Data.” Available online at www.lambdalegal.org/take-action/toolkits/getting-down-to-basics/risk-data.html (citing Garofalo, R., Wolf, R., Kessel, S., Palfrey, J., DuRant, R. “The Association Between Health Risk Behaviors and Sexual Orientation Among a School-based Sample of Adolescents.” Pediatrics 101(5), 1998).
19. Youth quoted in Mallon, Gerald P., 1998, 30.
20. Youth statement, Opening Doors Project listening forum, New York, NY, November 29, 2006.
21. Youth statement, Opening Doors Project listening forum, Denver, CO, July 28, 2006.
22. Lawyer’s quote from ABA Opening Doors Project National Attorney Survey, Fall 2006.