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July 09, 2012 Articles

Recognizing and Addressing LGBTQ Issues

By Cindy C. Albracht-Crogan

Lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth are, unfortunately, overrepresented in the child-welfare system, juvenile-justice system, and homeless population. While involved in these systems or living on the streets, LGBTQ youth experience more harassment, violence, and rejection, and engage in more suicide attempts, than their non-LGBTQ counterparts. The best practices for providing high-quality representation of the unique LGBTQ youth population was discussed during the March 13, 2012, 1.5-hour webinar and telephone conference "Recognizing and Addressing LGBTQ Issues in Your Children's Law Caseload." The conference was sponsored by the American Bar Association Section of Litigation, the Center on Children and the Law, the National LGBT Bar Association, and the ABA Center for Continuing Legal Education. The conference featured a panel consisting of attorneys, analysts, advocates, and practitioners who have firsthand knowledge and experience dealing with the struggles of LGBTQ youth who are in the foster-care or juvenile-justice systems or who may find themselves homeless.

Key Terminology and Concepts from the Teleconference
The acronym "LGBTQ" may lead to the conflation of terms related to sexual orientation, which describes to whom a person is attracted, and gender identity, which describes a person's sense or experience of belonging to a particular gender group. Thus, before a meaningful discussion can take place about LGBTQ youth in the various state and court systems, the panel members first provided the following definitions of key terms and core concepts:

  • Lesbian: A woman who is attracted emotionally, physically, and romantically to some other women.
  • Gay: A man who is attracted emotionally, physically, and romantically to some other men.
  • Bisexual: A person for whom gender is not the first criterion for attraction.
  • Transgender: An umbrella term for people whose gender identity or gender expression does not match the cultural norm for the sex assigned to the person at birth.
  • Questioning: The process by which people examine or consider their sexual orientation or gender identity.

A greater understanding of the specific meaning of these terms will assist you in explaining the specific challenges your client faces.

Identifying LGBTQ Youth on Your Caseload
It is estimated that somewhere between 4 percent and 10 percent of youth in state care are LGBTQ-identified, meaning that they have publicly identified themselves as LGBTQ to you or to others; however, it is important to note that the calculation is only an estimate, the panel said. There is no clear statistic that can accurately quantify the extent of the LGBTQ youth population in the state-care or juvenile-justice systems. The National Center for Crime and Delinquency recently conducted a survey of young people in Juvenile Detention Alternatives Initiative detention centers. In connection with that study, at least 15 percent of the youth sampled identified as LGBTQ or indicated that they engaged in gender-nonconforming behaviors. In addition, there is a higher rate of LGBTQ youth in the child-welfare and juvenile-justice systems, as LGBTQ youth are disproportionately subject to abuse and neglect in their families of origin.

In respect to homeless LGBTQ youth, there have been multiple research studies conducted within the last three decades. Those studies demonstrate that one in five homeless youth identify as LGBTQ and that, each year, between 240,000 and 400,000 LGBTQ youth experienced at least one night of homelessness in America.

Consequently, if you carry a caseload of youth in foster care and/or the juvenile-justice system, chances are you are representing at least one LGBTQ youth who may or may not have identified himself or herself as LGBTQ. But if a youth has not self-identified, there is really no way to determine whether a specific youth is LGBTQ. There are, of course, benefits to LGBTQ youth that an advocate can more readily provide if the youth identifies as LGBTQ. If an LGBTQ youth self-identifies to his or her attorney or case worker, that advocate can then direct the youth to the services, the counseling, and the placement that will best serve the youth's interests. However, the goal should not be to force a youth to identify as LGBTQ. It is the client that should be in control of whether he or she ultimately identifies as LGBTQ. The identification should not be forced on anyone. The panel stressed that clients must be afforded that privacy, confidentiality, and control—even if the advocate believes that it would be in the youths' best interests to publicly identify. The best way to encourage clients to be open and honest about their sexuality is to earn their trust. A youth may be more apt to identify as LGBTQ if, for example, an advocate uses gender-neutral language or hangs a poster in his or her office that will encourage the youth to be open. The panel agreed that every client should be treated in the same way so that you appear trusting and nonjudgmental.

Whether identified or not, the label placed on a client may ultimately be a distinction without a difference. Some of the non-LGBTQ youth on your caseload may experience the same difficulties and challenges as an LGBTQ youth if society perceives them as being LGBTQ or if a youth's gender expression does not comport to what society believes is appropriate for that particular gender. As a result, the panel discussion about challenges faced by LGBTQ youth applies not only to those youths who are LGBTQ-identified, but also those who are perceived by society as LGBTQ or who have gender-nonconforming behaviors.

Increased Difficulties and Challenges for LGBTQ Youth
LGBTQ youth can experience challenges that are largely unique to the LGBTQ youth population. According to the panel, it is important to identify and understand these difficulties and the potential consequences so that advocates can better serve their LGBTQ clients.

For example, there is a higher rate of drug and alcohol abuse among the LGBTQ youth in the child-welfare and juvenile-justice systems. LGBTQ youth report that they frequently use drugs and alcohol to cope with some of the abuse and intolerance that they experience in their schools, homes, or placement facilities. LGBTQ youth may also use alcohol or drugs to fit in if they feel as though they do not have a social group that accepts them. Another troubling statistic is that LGBTQ students are three times more likely to report carrying a weapon to school. This factor could have significant effects, including expulsion, suspension, and additional strife at home.

Foster care may also be more likely to serve as a pathway to detention and/or homelessness for LGBTQ youth due to the intolerance they experience in their homes or placements. During discussions with LGBTQ youth across the nation, the youths uniformly reported that they were often verbally and/or physically abused by their parent or guardian, verbally harassed by others if they were perceived as LGBTQ, and not permitted to dress and express themselves as they preferred. They also reported that they hide their sexuality in fear of reprisal.

A common perception is that LGBTQ youth run away because their families have abandoned or rejected them. While that is still true, the panel pointed out that research shows there is a cadre of reasons that result in LGBTQ youth being pushed out into the streets. A high incidence of family physical abuse, sexual abuse, and neglect can propel LGBTQ youth into the streets. But even ongoing family conflict, without any physical abuse, can result in LGBTQ youth running away from home. Parental addiction and poverty can also result in homelessness, as youth believe that they can better meet their needs on their own. Youth can also age out of foster care or other placements and find themselves with nowhere to turn. At 18–20 years old, these youths do not have the necessary skills or income and often end up in shelters.

Once homeless, LGBTQ youth have a higher incidence of victimization when living on the streets. They become a target for prostitution, stripping, and pornography, and sometimes trade sex in return for basic needs. One study shows that LGBTQ homeless youth experience 7.4 more acts of homeless violence than their heterosexual homeless peers, and they are also solicited to exchange sex for money, food, shelter, or clothing more often than their heterosexual peers. Thus, LGBTQ youth are more likely to be incarcerated for running away from home or placement, prostitution, or other status offenses than their non-LGBTQ counterparts.

When LGBTQ youth commit a crime, they are more likely to be arrested and/or convicted than their non-LGBTQ counterparts. Specifically, a 2010 study conducted by the American Academy of Pediatrics found that lesbian, gay, and bisexual youth are 40 percent more likely to be arrested and convicted in juvenile and adult criminal court. Additionally, LGBTQ youth in detention centers that do not have LGBTQ policies tend to travel deeper and deeper into the system. Harassment in detention centers leads to administrative segregation, isolation, or lockdown. These types of penalties do nothing to help rehabilitate the youth and have negative repercussions in court.

Finally, LGBTQ youth are also at risk for a mental-health disability. Sixty percent of LGBTQ homeless youth have reported feeling suicidal compared to 29 percent of heterosexual homeless youth.

All of these experiences make it much harder for the youth to engage in a trusting relationship with an adult who is, perhaps, attempting to propel the youth into self-sufficiency. The panelists cautioned that these problems faced by LGBTQ youth occur everywhere—even in cities that are more tolerant and supportive of LGBTQ rights.

How Attorneys, Caseworkers, and Other Involved Adults Help
The panelists discussed the multiple ways that you can assist the LGBTQ youth on your caseload, depending on their varied circumstances. As an advocate, you may be uniquely situated to make a life-altering, positive impact on the life on an LGBTQ youth. Indeed, many critical decisions about a child's future will be made in court. You may be the only person in the courtroom who has any knowledge regarding the services and placements that will best assist an LGBTQ youth.

Finding Appropriate Placement for LGBTQ Youth
LGBTQ youth uniformly report that they feel most harassed or discriminated against in their group home or foster home. Thus, the most important thing an advocate can do to assist an LGBTQ youth is to locate a placement that is safe, affirming, and permanent. To find such a placement, an advocate should work to become knowledgeable about the services and placements that best serve LGBTQ youth in the geographical area in which they practice. An easy and effective way to become knowledgeable about appropriate placements in your area is to ask your client. Often, LGBTQ youth know exactly where they will feel safe and where they will not. Asking your client a direct question may yield better results than hours of research.

The panel also suggested that advocates look in places where placement for LGBTQ youth may not be obvious. For example, there may be a group home with religious tenants that are not necessarily tolerant to LGBTQ lifestyles. While this type of religious affiliation may initially provide an advocate with cause for concern, you should not make assumptions based on religious or political factors alone. Research the organization or group home and talk with the staff. There may actually be some support for LGBTQ youth within that organization or group home.

Appropriate placement can also be found through contact with LGBTQ community centers or LGBTQ drop-in centers in their cities. Moderate- to large-sized cities may have these and other resources for LGBTQ youth. By contacting these agencies, you can locate agencies that provide support for LGBTQ foster kids and foster parents and locate community groups that are actively involved with the LGBTQ community in an attempt to locate suitable foster parents. In some states, like New York and California, there are specialized group homes or placements for LGBTQ youth. In some situations, regrettably, LGBTQ youth are sent out of state to these facilities due to a shortage of placements in their hometowns.

It is preferable for an advocate to determine an appropriate placement in advance of the placement. Unfortunately, however, a client is often already in a placement when he or she identifies as LGBTQ and informs his or her advocate that the current placement is not affirming. In this situation, it is imperative that attorneys and case workers express to all interested adults—including the court—that the current placement is not affirming and not safe. Words like "safety," "permanency," and "affirming" are critical buzzwords that should be used to alert the court that immediate action is required. In addition, it is also wise to inform the court that a nonaffirming placement will make adoption and/or reunification difficult. Using these buzzwords will assist the court in making decisions that will hopefully result in a more positive and permanent placement.

Finally, an advocate should realize that there is a constitutionally protected safety right for children in the foster-care system. This right derives from the Fourteenth Amendment of the U.S. Constitution, which provides all citizens with a right to substantive due process and liberty. The Fourteenth Amendment is specifically applicable to youth in foster care.

Creating a Positive Atmosphere and Maintaining Contact
If an LGBTQ youth is being detained in a facility that does not have policies that protect youth on the basis of sexual orientation, gender identity, or gender expression, an advocate can use his or her influence in the system to create and implement policies that will protect the client and all LGBTQ youth being detained in that facility. The first step in helping to create these policies and to address the general lack of understanding of LGBTQ youth is to approach the facility with a plan. Advocates should then consult with psychologists, social workers, and counselors to assist with the education and training process.

Advocates should also think about post-disposition representation when working with young people in detention or long-term facilities. It is difficult for public defenders to continue to monitor the youth and make visits to the facilities. Thus, it is important for an advocate to keep in touch with the youth while he or she is in detention. Advocates can partner with law students, a juvenile-justice reform agency, or local protection advocacy groups if a client has a disability to maintain contact with the youth. This follow-up is important, as it will assist an advocate in better representing the youth the next time he or she is back in the courtroom.

Helping a Family Accept an LGBTQ Child
We tend to assume that when parents are not supportive of their LGBTQ child, it is because they are ill-intended. However, the panel agreed that personally meeting with the family could produce a different perception and/or reality. Often, parents are simply acting in a manner that they believe will be in the best interests of the child. For example, parents may be fearful that a child will experience significant difficulties as a result of being LGBTQ-identified and, as a result, will discourage any nonconforming gender behavior. This conduct does not result from being ill-intended; it is a natural and positive instinct to protect the child from what they believe is a difficult lifestyle.

The panel agreed that the majority of parents of LGBTQ youth love their children and only want the best for them. Although the first inclination is to remove a child from his or her home if it is nonaffirming, talking with the family to improve its ability to accept the child has extreme positive outcomes. Working with families to help them better understand the struggles of LGBTQ youth could result in keeping their children out of the child-welfare and juvenile-justice systems, off the streets, and with their families.

The panel suggested that advocates interested in assisting with a family's acceptance of a LGBTQ youth should contact the Family Acceptance Project in San Francisco, California, for additional information on this topic.

Supporting a Homeless LGBTQ Youth
In respect to the homeless LGBTQ youth population, an advocate's understanding of the resources in his or her area is invaluable. It is important to direct homeless LGBTQ youth to shelters, counselors, and other important resources that will best suit their needs. Educating yourself about the resources in the geographic location in which you practice can be invaluable.

In addition, advocates may want to assist homeless LGBTQ youth in obtaining emancipation. If the youth is a minor, he or she obviously has some rights, but not the complete rights handed to an adult that is fully emancipated at 18 years old. This is because the law still recognizes parents as having physical custody of the child. If a child is under state custody as a juvenile delinquent, in a ward of the state, or in foster care, custody rights are shifted to the state. But if the state does not know where the child is, it can be very difficult to navigate custody rights. Nearly every homeless youth will express a desire to be emancipated, but emancipation as a legal status is more of a theory than a standard practice. There is not a clear road map to declaring a youth fully emancipated, as fewer than 15 states have a specified legal process for filing a legal emancipation petition. Attorneys interested in assisting a client with obtaining emancipation should carefully research their state's existing practice in this area.

The panel made clear that all youth, including LGBTQ youth, have likely been repeatedly let down and disappointed by the adults in their lives. They may have experienced physical abuse, sexual exploitation, neglect, and empty promises. An advocate must be a safe role model—a professional that is a trustworthy and strong advocate that will represent their specific needs in the child-welfare and juvenile-justice systems. Attorneys, case workers, and other advocates have a tremendous amount of status and privilege in society. Advocates should use that status to not only assist our clients, but also highlight barriers to proffering services and ending the discrimination of LGBTQ youth.

Keywords: litigation, children's rights, LGBTQ, foster care, juvenile-justice system

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Cindy C. Albracht-Crogan – July 9, 2012