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October 02, 2017 Articles

Keeping Transgender and Gender-Expansive Youth Safe in Out-of-Home Care

By Christina Wilson Remlin

The Safe Havens report, coauthored by Christina Wilson Remlin from Children's Rights, M. Currey Cook of Lambda Legal, and Rosalynd Erney from the Center for the Study of Social Policy, provides concrete recommendations to state policymakers, administrators, and providers about comprehensive and affirming policies and practices that can support transgender and gender nonconforming (TGNC) youth in their care. The report examines the federal and state laws and policies that enshrine youths' right to be safe from physical and psychological harm and to be treated equally and fairly while in state custody, and it identifies law and policy gaps and their impacts in the field. Most critically, the report highlights practical tips from providers serving these youth and insights from youth themselves about the positive impact of having their needs met. The authors anticipate that in response to this call to action, states will adopt comprehensive law and policy for TGNC youth, and that agencies and providers will follow models of appropriate TGNC youth treatment and incorporate constant and meaningful feedback from TGNC youth themselves.

Not Sleeping Safely at Night?

Could there be any need more fundamental than the need to sleep safely at night? Could anything be more critical to a young person's development than being accepted where he or she lives? When physical and psychological safety is protected, young people have the freedom to think creatively and optimistically about their futures. For far too many lesbian, gay, bisexual, transgender, and queer or questioning (LGBTQ+) youth in out-of-home care, these needs are unmet and they are living in danger.

At a minimum, all youth need to be safe, have food and appropriate shelter, and be supported and affirmed by others, including their families and communities. For youth in out-of-home care these needs are especially critical, and states must ensure that they are met. Many LGBTQ+ youth in out-of-home care systems, like child welfare and juvenile justice, have been rejected by their families of origin and kicked out of their homes, only to be rejected again based on who they are when placed in other settings. These issues are particularly acute for TGNC youth, because so much of their treatment in out-of-home care systems is governed by the way those systems define and segregate youth on the basis of sex or gender.

LGBTQ+ Youth Are Overrepresented in Out-of-Home Care Systems

Child advocates and experts from a host of disciplines have documented for over a decade the overrepresentation of LGBTQ+ youth in child welfare, juvenile justice, and runaway and homeless youth systems (out-of-home care systems) compared to the general population. Further, TGNC youth, who may identify across the sexual orientation spectrum, are overrepresented in these systems at even higher rates than youth who identify as LGBQ.

Comprehensive data on the number of LGBTQ+ youth in out-of-home care are difficult to find, and data specific to TGNC youth even more so. Available research using representative samples has shown that while young people who identify as LGBTQ+ comprise about 5–7 percent of the overall youth population, they make up almost one-fourth of those in the foster care system, one-sixth of those in the juvenile justice system, and almost one-half of young people experiencing homelessness. Moreover, sexual orientation and gender identity are important, but not singular, aspects of a young person's identity. Data disaggregated by race and ethnicity show that LGBQ and TGNC youth in out-of-home care are disproportionately youth of color, thus exposed to overlapping inequalities associated with that intersectionality. For TGNC youth in out-of-home care systems, the combination of societal stigma and discrimination and sex-specific regulations presents a veritable minefield of challenges. While youth are in out-of-home care, nearly all aspects of their life—from the doctor they see to the place they sleep, the clothes they wear, and who searches their bodies—are controlled by out-of-home care professionals who in most cases lack training and guidance on how to properly serve this population.

LGBTQ+ Youth Are Exposed to Abusive Treatment

Out-of-home care systems are often ill-equipped to serve LGBTQ+ youth adequately. Research has shown that once in out-of-home care, LGBTQ+ youth face higher rates of victimization and discrimination and worse life outcomes than their non-LGBTQ+ peers. In New York City, studies show that 78 percent of LGBTQ+ youth experiencing homelessness were removed or ran away from foster homes because of abuse or discrimination, and 56 percent chose to live on the street—rather than in a foster care placement—because they felt safer there. Findings show that, when compared to their heterosexual and cisgender peers, LGBTQ+ youth in the juvenile justice system are twice as likely to have experienced child abuse, out-of-home placement, or homelessness. The U.S. National Alliance to End Homelessness reports that LGBTQ+ youth experiencing homelessness are roughly 7.4 times more likely to suffer acts of sexual violence than their non-LGBTQ+ peers, and are more than twice as likely to attempt suicide (62 percent) than their peers (29 percent). Research specific to TGNC youth has shown that transgender youth in New York City have been found eight times as likely as nontransgender youth to trade sex for a place to stay. This bleak picture is, of course, not inherent to being TGNC, but certainly indicative of intense misunderstanding, stigma, and prejudice in general society. These factors fuel horrifyingly high rates of suicide, self-harm, and physical and sexual victimization among TGNC youth.

Data are scarce regarding the particular experiences of TGNC youth in out-of-home care. However, extraordinarily high rates of family rejection, societal discrimination, and victimization of TGNC people—including staggering rates of violence against transgender women of color—and anecdotal evidence suggest that TGNC youth in out-of-home care are exposed to even harsher and more abusive treatment than LGBQ youth in these systems. Most out-of-home care placements and facilities are sex-specific, and many aspects of youth supervision and care are governed by regulations that reference a youth's sex or gender. This makes it particularly important to ensure that out-of-home care practices are accepting and affirming for TGNC young people. For example, placing a young woman who is transgender on the boys' floor in a child welfare group home, juvenile justice facility, or shelter for youth experiencing homelessness can be dangerous, exposing her to bullying, physical assaults, and even sexual abuse. At its core, such a placement constitutes a refusal to fully affirm the youth's identity and may contribute to suicidal ideation and depression and exacerbate gender dysmorphia, among other undesirable health outcomes. Lack of affirmation for TGNC youth in care is, too frequently, accompanied by discrimination and mistreatment in school, at work, and within their communities. Stigma, conflicts around gender nonconformity, and racial identity also contribute to the criminalization of TGNC young people, particularly TGNC youth of color, at higher rates than their cisgender and gender conforming peers. Without assistance and support from out-of-home care providers, these issues may remain unaddressed, leading to disparately poor life outcomes for these young people.

In light of the challenges that TGNC youth face and the weighty obligations of out-of-home care providers, experts have produced a body of professional standards that identify how to serve LGBTQ+ youth appropriately and reduce disparities in outcomes. Some federal and state laws and policies specific to child welfare, juvenile justice, and runaway and homeless youth systems of care have likewise evolved and, consistent with youths' constitutional rights, provide explicit protection from discrimination and harassment on account of sexual orientation, gender identity, or gender expression (SOGIE). Flowing from professional standards and law and policy protections, a handful of jurisdictions have provided training for staff working with young people on affirming and supporting LGBTQ+ youth and have developed pilot programs or "best practice" models. At the same time, policies and practices that affirmatively hurt LGBTQ+ children and youth also persist.

While I was in the facilities, I wasn't able to focus on my classes and what I needed to learn. I was always more focused on who was out to fight me and who was going to jump me today. I was so busy paying attention to my surroundings that I couldn't pay attention to my work. Once I knew my parole officer was going to respect me and treat me fairly, I was able to focus on what I needed to do and working on positive things.

—Lydia, transgender youth in care

The Findings of the Report Constitute a Call to Action

The Safe Havens report identifies barriers to affirming treatment for youth in out-of-home care and suggests steps to eliminate these barriers. The report provides first-of-their-kind live national maps of specific child welfare and juvenile justice statutes, policies, and licensing regulations related to sexual orientation, gender identity, and gender expression and out-of-home care, providing a resource to help users understand the explicit protections that exist (or do not exist) in all 50 states and the District of Columbia. The report also provides concrete law and policy reform recommendations and practical tips to better protect and serve TGNC youth involved in intervening public systems. These recommendations were developed with significant input from both TGNC youth who reported affirming experiences during their placement in out-of-home care and providers who have made recommended practices a reality for the youth they serve.

The first-of-its-kind 50-state analysis of state statutes, regulations, and policy found that:

  • Despite the fundamental need for protection against discrimination, only 27 states and the District of Columbia explicitly include sexual orientation and gender identity in nondiscrimination protections specific to the child welfare system; only 21 states and the District of Columbia do so in their juvenile justice systems; and only 12 states and the District of Columbia do so in their facilities serving runaway and homeless youth.

  • Despite the near-ubiquitous use of the term sex (or gender) in regulations governing placement, clothing, searches, and other critical aspects of systems of care, only three states in the nation define sex (or gender) to include gender identity, and only one of those does so in a regulation specific to out-of-home care.

  • Despite the critical need for placement decisions that respect identity and keep TGNC youth safe, only four states have statutory or regulatory guidance regarding placement of transgender youth in out-of-home care in accordance with their gender identities.

  • Even though professional standards dictate that the well-being of TGNC youth requires they be allowed to dress and express themselves in accordance with who they are, 24 states provide no such explicit allowance in statutes or regulations in their child welfare systems, 40 states provide no such allowance in their juvenile justice systems, and 34 states provide no such allowance in their homeless and runaway youth facilities.

New York and California are the only states to have comprehensive protections in place to protect these young people across all of their out-of-home care systems. Both enacted SOGIE-inclusive antidiscrimination statutes and regulations specific to out-of-home care systems as well as definitions of sex (or gender) that include gender identity. On the other end of the spectrum, the states of Alaska and North Carolina provide no explicit protections for LGBQ or TGNC youth in any of their out-of-home care systems. Most states fall somewhere in between these extremes.

Law and policy protections are essential for ensuring the health and well-being of TGNC youth, but they are not sufficient. Of utmost importance is the responsibility of caregivers to turn recommended practice into reality. Based on concrete tips from providers featured in the report who are bridging that gap, the authors call for solid legal and policy protections that are connected to staffing, hiring, training, and ongoing coaching and development; better support for families of origin and foster and adoptive parents; increased community collaboration; intentional engagement with LGBTQ+ young people to ensure that they are affirmed in care; and a commitment to agency-wide culture change.

Recommendations for Affirming Treatment

Youth with experience in out-of-home care systems who contributed to the report had the following recommendations for providers: provide affirming health care and use qualified and trusted providers; screen existing placements and develop affirming ones; don't replicate the harm youth experienced at home; respect youth to build trust with them; give non-TGNC youth and adults time to learn about and understand TGNC youth; affirm identity in all aspects and promote well-being; don't blame youth for being victimized; use resources to help youth and avoid unnecessary grievances; provide safe environments to allow youth to focus on positive development; don't gender things; and if you see bullying, stop it and connect youth to LGBT supports. As this important work progresses, TGNC youth must be engaged to ensure that their voices are part of policy development and that their positive experiences can serve as examples to guide life-changing system improvements.

Explicit protection from discrimination and training for providers on how best to work with LGBTQ+ youth are critical precursors to safe and supportive participation by youth in system reform efforts. These precursors also allow for safe collection of much-needed SOGIE demographic data on system-involved youth and families in order to inform and improve practice. Unfortunately, the vast majority of states have no statutory or regulatory requirements for LGBTQ+-specific ongoing training and coaching in any of their out-of-home care systems.

The Safe Havens report highlights gaps in law and policy that must be filled in order to protect youth from discrimination and seeks to improve practice by sharing insights from the experiences of TGNC youth and from affirming and supportive providers. This information will enable policymakers and practitioners to drive change in the systems where they work, in line with professional commitments and legal obligations that require them to provide for the safety and well-being of all youth.

The authors hope this report will constitute a call to action for states, agencies, advocates, and stakeholders across the country to require their out-of-home care systems to provide affirming treatment for TGNC youth.

Even though your clients are children, they still need to be treated with respect. Especially in this setting, the trans kids you work with are there for a reason and it's often because their identities were rejected by their parents. When the system is supposed to be there to help, it's critical that it doesn't replicate the situation that [a youth] is trying to get away from.

—Savannah, transgender youth in care

Christina Wilson Remlin is lead counsel for Children's Rights in New York.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).