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June 27, 2011 Articles

Part 2: LGBTQ Youth in the Juvenile Justice System

By Amanda Valentino

The saying "Never judge a book by its cover" is one of the lessons we were all taught since childhood. It has been used to teach us to look at the whole picture before judging and categorizing an individual. A novel theory, coined "multidimensionality," embraces this well-known saying. Multidimensionality illustrates that, to understand someone, it is necessary to know where he or she comes from and all of the identities that he or she encompasses before trying to address specific needs. This theory can reveal the diverse material, social, and emotional harms that are caused by the interconnectedness of racism, sexism, poverty, and heterosexism. Darren Leonard Hutchinson, "'Gay Rights' for 'Gay Whites'?: Race, Sexual Identity, and Equal Protection Discourse," 85 Cornell L. Rev. 1358, 1368 (2000).

Because not all young clients will be willing to freely speak about his or her orientation or gender identity, possibly because of past trauma associated with coming out to adult family figures, juvenile advocates need to be attentive to who their young client really is. Multidimensionality is the key to understanding clients; it examines the sexual identity (together with race, gender, and class) and the complex life experiences of young clients. An extreme attentiveness to subtle cues and hints at possible issues is needed when working with all young clients because they are usually the most reluctant to place their trust in adults.

Once an attorney becomes familiar with the specific issues affecting their clients, the attorney needs to be aware of ways to effectively represent the youth throughout all of the proceedings following arraignment. A variety of issues affect lesbian, gay, bisexual, transgender, and questioning/queer (LGBTQ) youth differently from their heterosexual counterparts, while some issues are the same. Advocates for these young clients need to take a multidimensional approach to recognize the particular concerns for LGBTQ clients.

Discriminatory and Inappropriate Charges
Juvenile advocates and defense attorneys should be on alert for the system's propensity to overcharge youth that engage in same-sex conduct compared to their heterosexual counterparts. Overcharging is typically the result of a frantic parent who finds his or her child engaging in same-sex conduct with another child and subsequently insists that his or her child is the victim, even though the conduct was consensual. The parent may insist on filing charges against the "perpetrator," potentially resulting in incarceration and the stigmatization of being labeled a sex offender.

Another typical scenario stems from discovered homosexual consensual conduct in schools or group-care homes. Administrators in charge of these locations feel obligated to identify a "perpetrator" in the situation to shield themselves from liability and charges of inadequate supervision. There is a need to pin the blame on someone else so that any charges are that are filed are against the identified scapegoat. Additionally, charges are sometimes filed by youth who willingly engaged in same-sex conduct at the time but later experience shame or regret because of burdensome familial pressure to reveal the instigator.

One public defender stated in an email interview that she has had a handful of incidents where her lesbian clients were punished in juvenile detention facilities and group homes because of same-sex teenage behavior. These behaviors are described as "problematic," even though the defender believes that they result from limited sexual opportunities in same-sex group homes, so "lesbians are basically forced into these situations where they live with other girls and then are sanctioned for acting on their normal impulses."

Awareness of the potential for the overcharging of LGBTQ youth as sex offenders is one step toward eradicating the abuse that these youth face. This is an initial step that can stop discrimination when it begins to take shape during arraignment.

Constitutional Rights
As an attorney, it is important to understand the constitutional rights and claims that are specific to LGBTQ youth. As wards under the care of the state, these young people have a constitutional right to safety and equal protection. Attorneys should be alert for all of these rights; however, the rights to safety and equal protection are imperative. When working with young clients who fall below the LGBTQ visibility level, these two protections are the most important. Safety and due process work to keep LGBTQ youth the most secure from discrimination and harassment. These two rights are the most vital when dealing with less-visible LGBTQ youth because they might not fit into the normal stereotypes and might be dealing with other serious personal issues that keep them silent about their sexual identity and orientation. This silence may make these youth more susceptible to undetected abuse and harassment in the system, which is why juvenile advocates need to have a heightened awareness for the constitutional claims that can be utilized as remedies.

Due to their legal status as wards of the state, all young people in state custody have a constitutional right to safety grounded in the due process clause of the Fourteenth Amendment. Rudy Estrada & Jody Marksamer, "Lesbian, Gay Bisexual and Transgender Young People in State Custody: Making the Child Welfare and Juvenile Justice Systems Safe for All Youth Through Litigation, Advocacy and Education," 79 Child Welfare 6 (2006). In contrast with adult defendants, youth in the custody of the state juvenile justice system have not yet been convicted of crimes per se and are therefore committed to the care of the state. The theory of the juvenile court is rooted in social-welfare philosophy and rehabilitation rather than punishment, which is why the proceedings are deemed civil rather than criminal.

Knowledge of this inherent right is crucial when advocating for incarcerated LGBTQ youth. Defense counsel should familiarize themselves with the available detention facilities and any possible past complaints there might be regarding the treatment of youth. The right to safety encompasses the right to protection from psychological, verbal, and physical abuse. This interest was recognized in R.G., 415 F. Supp. 2d. at 1156, via the landmark holding of Youngberg v. Romeo, 457 U.S. 307 (1982). The court in Youngberg made it clear that the Constitution requires state officials to take steps to prevent children in state institutions from physically and psychologically deteriorating. 457 U.S. 307. In R.G., this right was specifically attached to all children, especially the LGBTQ youth in HYCF. 415 F. Supp. 2d.

The right to safety also includes the right to appropriate and necessary medical or mental health care. Estrada, supra note 4, at 12. For example, this protection would enforce liability on the agency if correctional employees were aware of a transgender youth's mental or medical health needs regarding a gender identity disorder diagnosis and failed to take appropriate steps to address the issue. This specific awareness of transgender rights in the youth community extends from the medical rights of adult transsexual clients. Courts have held that transexualism constitutes a "serious medical need," and denying access to a transgender-related health-care issue for prisoners amounts to cruel and unusual punishment under the Eighth Amendment.

In addition, juvenile detention facilities need to employ appropriate policies, treatment options, and supervision for suicidal wards. This includes the right to have mental-health screening for youth who might be a suicide risk. This is highly important for the LGBTQ incarcerated youth community because they are generally more at risk for abuse and harassment, which tends to lead to an increased rate of suicide. Id. at 13; See Jody Marksamer & Shannan Wilber, The Model Standards Project (2002) at 4. Ironically, LGBTQ youth are subjected to higher levels of inappropriate mental-health treatment, perpetuating their state of decreased psychological well-being. However, even though LGBTQ youth may be at a higher risk for suicide, this alone should not be the main reason to place them on suicide risk. There needs to be additional factors going into a suicidal diagnosis than just an LGBTQ identity. Additionally, heightened surveillance for these youth to prevent suicidal tendencies could also lead to discriminatory practices, so striking a middle ground is essential.

Furthermore, the right to safety means that LGBTQ youth should not be forced to undergo inappropriate or unethical services that can damage their emotional welfare. Unsuitable procedures include the use of conversion therapies and other practices intended to involuntarily change a person's sexual orientation or gender identification. Estrada, supra, at 8–9. In general, these practices have been condemned because they can cause serious emotional harm, especially to adolescents. However, as defense counsel, it is imperative to be on guard for these procedures that may be employed in detention and mental-health facilities.

Finally, the right to safety in juvenile detention facilities includes the right to be free from isolation. Adolescents in these facilities should not be placed in conditions amounting to punishment or stigmatization because they have not been convicted of crimes. Even though many staff members feel that they are protecting LGBTQ youth from harm when employing isolation practices, they are actually inflicting psychological distress on them in a punitive way. Isolation deprives people of support systems, friendships, or any other interpersonal connections that can help them avoid abuse. This is especially damaging to LGBTQ youth because many of them are already feeling isolated as a result of the rejection they have experienced from their families and friends due to their lifestyle. These youth do not need additional barriers to human contact like the "protective" isolation practices that promote mental-health deterioration. In contrast, these youth need the chance to form support systems with peers of their own age and possibly of their own identity and orientation. Allowing these youth to form connections with other LGBTQ adolescents might prove therapeutic and allow them to realize that they are not alone.

The Right to Equal Protection
Another constitutional guard for LGBTQ youth encompassed in many of the other inherent protections is the right to equal protection. Generally, if an LGBTQ youth in state custody is refused access to a program based on his or her sexual orientation or gender identity, his or her constitutional right to equal protection is violated. Similar to the constitutional right to safety, if a juvenile justice professional fails to take action against anti-LGBTQ harassment, the court could extend liability to the agency and its actors and find that they violated the youth's right to equal protection. The court in Marisol A. v. Guiliani, 929 F. Supp. 662 (1996), enforced agency liability, and, as a result, there was a settlement award for damages and important policy changes within the New York City child welfare system to improve the standard of care for LGBT youth. Even though this case involved the failure to protect LGBTQ youth in the child welfare division, all youth in the custody of the state have the inherent right to equal protection, including wards in juvenile detention facilities.

State Nondiscrimination Protections
In addition to legal protections under the Constitution, defense attorneys working with LGBTQ youth should also familiarize themselves with state and local law nondiscrimination statutes and ordinances. Estrada, supra, at 15. For example, some states have regulations that specifically protect individuals from discrimination by governmental agencies, and these regulations would extend to juvenile justice detention facilities. Again, if youth advocates are aware and knowledgeable about these applicable laws, they work as important additional tools that can be used to reinforce safety for LGBTQ incarcerated youth.

Nonlitigation Strategies: Education and Awareness
In addition to the litigation strategies mentioned above, there are also nonlitigation techniques that can be employed to help unidentified LGBTQ youth in the juvenile justice system. A main reason why these less-visible LGBTQ youth exist is because many people employed in the juvenile justice system are uneducated about LGBTQ youth issues and are unaware of the techniques used to recognize specific underlying LGBTQ concerns for youth that are reluctant to speak up.

Educational resources and awareness training might be valuable resources that many state facilities, like public defender offices, do not have the luxury of utilizing because of budgetary cuts. However, these are programs that should be integrated as much as possible into training programs. Currently, even in a time of economic turmoil and very few resources, some jurisdictions are working to develop multidisciplinary approaches for improving the care and outcomes of LGBTQ youth in the juvenile justice system. These programs include education and training on sexual orientation and gender identity issues for employees. LGBTQ-specific training is effective in combating homophobia and transphobia while improving the quality of life and care for LGBTQ children in the juvenile justice system. Estrada, supra, at 17 n. 75.

Public defender offices and other state employees may look to the City of San Francisco and the State of Massachusetts for guidance on how to effectively set up LGBTQ training programs and policies. See Peter A. Hahn, "The Kids Are Not Alright: Addressing Discriminatory Treatment of Queer Youth in Juvenile Detention and Correctional Facilities," 14 B.U. Pub. Int. L.J. 117, 139 n.171, and 139–140 (2004). The City of San Francisco is the only local department in the county that has implemented a specific, comprehensive antiharassment policy that includes sexual orientation and gender identity awareness. The San Francisco Juvenile Probation Department Anti-Harassment Policy for Youth strictly forbids harassment and discrimination, applies specific procedures for handling complaints from youth, describes the review and appeal process, delineates remedial and disciplinary action, and necessitates age-appropriate training about the policy and issues of diversity for staff and youth. In addition, even though Massachusetts does not have a comprehensive policy regarding LGBTQ youth, it does have a number of regulations that promote diversity and tolerance within the system that include the Department of Youth Services (DYS) Code of Employee Responsibility. This code, enacted in 1999, holds employees accountable for their personal demeanor and prohibits discriminatory conduct based on sexual orientation. Additionally, at the commencement of employment, all DYS staff go through training addressing sexual harassment and diversity regarding sexual identity and orientation.

These two locales provide comprehensive training on sexual orientation and gender identity to caseworkers, foster parents, group-home staff, and direct service providers. Estrada, supra, at 17. Additionally, some jurisdictions, including Connecticut, Illinois, the City of Philadelphia, and Santa Clara County in California, have designated an LGBTQ point person to conduct trainings on the specific issues facing this particular population. In these locations, the point person addresses any other concerns that may arise, such as finding safe placement homes and appropriate medical services for LGBTQ youth.

Other sources of educational information are the Child Welfare League of America (CWLA, a union of private and public organizations that advocate and serve vulnerable children and families worldwide) and the National Center for Lesbian Rights (NCLR, an organization dedicated to the pursuit of justice, fairness, and legal protections for all LGBT people). Both organizations have published numerous educational pieces to further educate those employed in the juvenile justice system about LGBTQ youth rights. Each association has a vast amount of material that can provide state systems with helpful resources when starting LGBTQ youth training and continuing legal education for their staff. See also Majd, supra, at 149.

In addition, simple tools, such as learning how to speak gender-neutrally to young clients, can result in a stronger attorney-client relationship and provide understanding regarding a client's background, especially if he or she identifies as LGBTQ. This will help attorneys advocate for the specific needs that certain LGBTQ clients might have and help keep them safe while in the detention halls. Generally, when speaking to young clients, attorneys should avoid language that assumes heterosexuality. Marksamer, supra, at 1. Youth usually pick up on subtle adult suggestions, such as asking a young girl client if she has a boyfriend. This can suggest to her that homosexuality is frowned upon and can possibly result in her silence about her sexuality if she is in fact having same-sex attractions. Additionally, attorneys should be tuned into hints that their youth clients give. Adolescents may test whether their attorney will accept them by avoiding the use of gender pronouns when talking about a romantic partner or mentioning that they have LGBTQ friends or family. These subtle hints can provide defense attorneys with a major opportunity to show their clients their open-mindedness and acceptance of their situation and identity.

Numerous issues plague the juvenile justice system, and there are very limited resources for resolving these problems. However, this does not mean we can turn a blind eye to LGBTQ youth. LGBTQ discrimination in the juvenile justice system is a reality, and even a little education can go a long way. With the increasing number of LGBTQ incarcerated youth, the less visible are pushed to the side, and their concerns are not adequately addressed. These are the youth that will most likely face the most discrimination and violence within the system. However, implementing education, knowledge, and awareness today, it is possible that all LGBTQ youth will receive the adequate representation and protection they deserve.

Part 1 of this article is available here.

Keywords: litigation, LGBT, multidimensionality, juvenile justice, right to safety, right to equal protection

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Amanda Valentino – June 27, 2011