Best Practices for Supporting LGBTQ+ Youth in Family Law Cases

Nationwide, approximately 30.4 percent of foster youth identify as LGBTQ+, with around 60 percent also identifying as youth of color and 20 percent of youth in juvenile justice facilities identify as LGBTQ+, of which 85 percent are youth of color. (Laura Baams, et al., LGBTQ Youth in Unstable Housing and Foster Care, Pediatrics (Mar. 1, 2019); Center for American Progress, Unjust: LGBTQ Youth Incarcerated in the Juvenile Justice System (June 2017)). Of the percentage of youth who experience homelessness in the United States, 20 to 40 percent identify as LGBTQ+. (True Colors United, At the Intersections: A Collaborative Resource on LGBTQ Youth Homelessness (2019)). Given that LGBTQ+ youth make up only around 7 to 9 percent of the general population, a disproportionate number of LGBTQ+ youth is system-involved. (Movement Advancement Project, LGBTQ Youth (Oct. 3, 2024)).

Further, according to the Trevor Project’s recent survey, 12 percent of LGBTQ+ respondents attempted suicide in the past 12 months, including almost half of transgender and nonbinary young people, and 39 percent of LGBTQ+ youth report having seriously considered attempting suicide in the past 12 months, including 14 percent of transgender and nonbinary young people. In comparison, transgender and nonbinary youth who report having their pronouns respected by all or most of the people in their lives attempted suicide at half the rate of those who did not have their pronouns respected. Importantly, teens who perceived parental support regarding gender identity were 93 percent less likely to attempt suicide than youth who did not perceive parents as supportive. (The Trevor Project, 2024 U.S. National Survey on the Mental Health of LGBTQ+ Young People (2024)).

These data undoubtedly demonstrate systemic issues such as discrimination and lack of appropriate services for LGBTQ+ youth, but also show how family acceptance and understanding can significantly impact the lives of these young people, and, in turn, all family members.

Best Practices

Attorneys can play an important role in addressing the issues that LGBTQ+ youth and their families face in the legal system. Below are some ways that attorneys can ensure that they advocate effectively for LGBTQ+ youth and their families. Below are some ways that attorneys can ensure that they advocate effectively for LGBTQ+ youth and their families.

Attorneys who work with LGBTQ+ system-involved youth should:

• Familiarize themselves with the recent HHS rule, “Designated Placement Requirements Under Titles IV-E and IV-B for LGBTQI+ Children” which went into effect on July 1, 2024.
• Have an understanding of crossover youth/dual system youth (i.e., youth who have encountered both the child welfare and juvenile justice systems) and runaway homeless youth (RHY) issues given how often LGBTQ+ youth encounter these systems.
• For representation of incarcerated Transgender, Non-Binary and other Gender Expansive youth, ensure you ask questions to determine:

If youth are receiving the same access to programs and services as incarcerated cisgender youth;

Whether youth can choose housing placement options with respect to their gender identity;

That youth are not being placed in solitary confinement or isolated solely based on their gender identity or sexual orientation;

If youth have access to clothing options consistent with their gender identity;

Whether youth have access to gender affirming medical care if desired;

If facility staff are using the name and pronouns the youth desires.

• Familiarize themselves with local LGBTQ+ resources, including LGBTQ+ centers, local PFLAG chapters for family members, and LGBTQ+-competent medical providers.
• Work in collaboration with social workers, mental health professionals, and LGBTQ+ advocates in supporting youth.
• Gain an understanding of state laws regarding gender-affirming care as well as name and gender marker changes in the event your client needs legal advocacy for around these issues.
• Be culturally competent and engage in ongoing learning to continue providing inclusive, respectful, and effective representation for LGBTQ+ youth.

Attorneys who represent parents/caretakers should:

• Familiarize themselves with local and national resources for families. This might include local PFLAG chapters and organizations such as Gender Spectrum and Family Builders that can provide support and assistance to families that might be struggling to understand and accept their LGBTQ+ child.
• Be ready to counsel parents/guardians regarding the ways that their beliefs about their child’s gender identity or sexual orientation may impact their family law case. For example, when during a custody dispute one parent refuses to acknowledge their child’s sexual orientation or gender identity, attorneys should be prepared to discuss how this will affect the child’s health and wellbeing and how this relates to the overall best interests of the child.
• Treat LGBTQ+ children involved in the case with respect. This includes using the name and pronouns that the child wishes to be addressed by, even if the parent, agency workers, or other system players do not.
• Be culturally competent and engage in ongoing learning to continue providing inclusive, respectful, and effective representation for families.

Incorporating these strategies into your legal practice can create a more inclusive and supportive environment for LGBTQ+ youth and their families and help lead to better outcomes in family law proceedings.