Government-funded systems for youth in out-of-home care have laudable and important public policy goals. The juvenile justice system is designed to rehabilitate youth; child welfare is designed to ensure a safe, permanent home; and runaway and homeless youth systems are designed to provide secure, temporary shelter and helpful services. Some youth in care, however, have always been unofficial exceptions, left by the wayside with their needs unmet and system promises to serve all youth, regardless of who they are, unfulfilled. Lesbian, gay, bisexual, transgender, and queer or questioning (LGBTQ) youth have long been one of these exceptions. Thankfully, over the past 20 years, change has come for many of these youth in the broader world and in out-of-home care, but full inclusion in the promise of care and assistance still eludes far too many.
System Involvement of LGBTQ Youth
Simultaneously invisible to many and targeted by others, LGBTQ youth often end up in out-of-home care systems that, in reality, serve as catchment areas for the most marginalized children in our society. For LGBTQ youth who are youth of color, undocumented immigrants, from low income families, living with disabilities, or at the intersection of many or all of these identities, inequities and discrimination in society and in care are greater still. LGBTQ youth are disproportionately represented in out-of-home care systems. Despite making up only an estimated 5–7 percent of the general population of young people, youth who identify as LGBTQ account for almost 25 percent of youth in foster care, 20 percent of youth in the juvenile justice system, and nearly 50 percent of youth experiencing homelessness, according to an April 2017 study, Safe Havens (discussed below). Once in care, these youth are more likely to face victimization, harassment, discrimination, more placement moves, and placement in group homes, psychiatric treatment centers, and detention settings. In the world at large, due to societal prejudice, LGBTQ youth are at higher risk for physical and emotional victimization, trafficking, and negative health outcomes, including self-harm and suicide. Discrimination and mistreatment while in government care only increases this risk factors and exacerbates poor public health outcomes.
Family rejection is frequently a factor leading to multi-systemic involvement. Being kicked out or pushed out by family often forces youth out of their homes, either into foster care or homelessness. Discrimination and bullying in schools cause many LGBTQ youth to feel unsafe, and many skip class, increasing their risk of becoming involved in the system. Some youth experiencing homelessness are driven to participate in street economies, including sex work, to meet their survival needs. LGBTQ youth in general, and LGBTQ youth of color in particular, are more likely than their heterosexual and cisgender peers to be stopped or arrested by law enforcement and to be detained. Juvenile involvement and homelessness often have an impact on youth for the rest of their lives, causing barriers to housing, education, and employment.
Progress and Some Setbacks
Despite the prevalence and experiences of LGBTQ youth in out-of-home care, the specific needs of LGBTQ youth have not been adequately addressed; as a result, systems themselves have been complicit in causing additional trauma and poor outcomes. Thankfully, the last 20 years have shown a slow but steady increasing recognition by professionals that their work necessarily involves working with LGBTQ youth and requires improvements in policy and practice. Some states have enacted specific laws protecting LGBTQ youth from discrimination and mandating supportive treatment. However, other states have taken harmful steps backwards, enacting "religious refusal" laws that permit child welfare providers to discriminate against LGBTQ youth based on their religious or moral beliefs (See Child Welfare (map).) This article highlights the great strides that have been made to protect LGBTQ young people over the past few decades and points out areas where additional reform is necessary to protect LGBTQ young people and the adults they grow up to be.
When Lambda Legal's Youth in Out-of-Home Care Project was founded in the 1990s, it was focused exclusively on LGBTQ youth in foster care. In 2001, Lambda published Youth in the Margins: A Report on the Unmet Needs of Lesbian, Gay, Bisexual, and Transgender Adolescents in Foster Care, a groundbreaking survey of 14 states' policies and practices. The report found that, unsurprisingly, LGBTQ youth were often neglected and marginalized by state child welfare systems. Youth in the Margins also demonstrated the need for best practice guidelines for well-meaning but uninformed child welfare professionals. In subsequent years, this gap has been filled in with a plethora of important recommended practices and a body of professional standards.
A Multidisciplinary Approach: Best Practices
The movement for rights of LGBTQ youth in court and systems of care has been bolstered over the past 20 years by recognition by other professional children's rights organizations. While organizations that advocate specifically for LGBTQ youth are important, statements of support by mainstream child welfare groups bring best practice recommendations to a wider audience, including people who may be more responsive than if the recommendations were to come from an LGBTQ-specific organization.
In 2002, the Model Standards Project was launched as a joint project of Legal Services for Children and the National Center for Lesbian Rights. The goal of the project was to give child welfare and juvenile justice agencies accurate and up-to-date information on best practices for providing services to LGBTQ youth. In 2006, the project partnered with the Child Welfare League of America (CWLA) to publish the first ever set of comprehensive guidelines for professionals working in child welfare and juvenile justice systems to best serve LGBT youth: CWLA Best Practices Guidelines: Serving LGBT Youth in Out-of-Home Care. The 2006 CWLA Best Practices Guidelines gave information to providers about creating an inclusive culture, supporting family acceptance and reconciliation, focusing on permanence, and promoting positive development and expression of sexual orientation and gender identity. The guidelines also provided concrete recommendations for the placement of LGBT youth and the provision of health and mental health services to them.
While the CWLA Best Practices Guidelines was the first report of its kind, many more came in its wake. Also in 2006, CWLA and Lambda Legal coordinated to release two reports: Out of the Margins: A Report on Regional Listening Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth in Care and Getting Down to Basics: Tools to Support LGBTQ Youth in Care. In 2012, CWLA's published Recommended Practices to Promote the Safety and Well-Being of Lesbian, Gay, Bisexual, Transgender and Questioning (LGBTQ) Youth and Youth at Risk of or Living with HIV in Child Welfare Settings. Recommended Practices was groundbreaking because it included a call from leading child welfare organizations to support LGBTQ youth in care. CWLA worked with a national group of 13 institutional coauthors to consolidate and summarize the work of leaders in medicine, law, and social sciences:
- The Child Welfare League of America
- The American Bar Association Center on Children and the Law: Opening Doors for LGBTQ Youth in Foster Care Project
- Diane E. Elze
- The Family Acceptance Project
- Lambda Legal
- Legal Services for Children
- Gerald P. Mallon
- Robin McHaelen
- The National Alliance to End Homelessness
- The National Center for Lesbian Rights
- The National Center for Transgender Equality
- The National Network for Youth
- The Sylvia Rivera Law Project
The report also included statements of support for LGBTQ youth by the National Association of Social Workers, the American Psychological Association, the American Academy of Pediatrics, and the American Academy of Child and Adolescent Psychiatry, and called for providers to adopt and implement written nondiscrimination policies to protect against discrimination on account of sexual orientation and gender identity and HIV status; to provide mandatory LGBTQ competency training to all employees, volunteers, and foster and adoptive parents; and to specifically support transgender and gender-nonconforming youth by affirming their identity and expression.
Youth-Affirming Litigation Efforts
In the past 20 years, the rights of youth have also been supported through successful federal and state litigation efforts. Perhaps the most notable case is R.G. v. Koller, the first and only case in which a federal court has heard and affirmed the right of LGBTQ youth to be free from harassment and discrimination in the juvenile justice system. In 2005, the American Civil Liberties Union (ACLU) filed suit against the Hawaii Youth Correctional Facility (HYCF), a state juvenile justice facility, on behalf of three young people. The plaintiffs were between the ages of 17 and 18 and were residents of HYCF who identified as, or were perceived as, LGBTQ. The suit alleged that staff and officials of the Hawaii Department of Human Services routinely ignored and sometimes actively participated in a culture of harassment and violence against LGBTQ youth in its care.
Among the allegations by the youth represented by the ACLU were verbal harassment by guards against LGBTQ residents, including inciting similar harassment by other residents; reprimands that included telling LGBTQ youth that they were bound for hell; housing LGBTQ youth in solitary confinement as a means of their "protection"; and refusal by staff to intervene when LGBTQ youth experienced sexual harassment or assault by other youth. After a preliminary finding that the youths' constitutional rights were likely violated, HYCF settled the case in 2006 on the condition that it would cease harassment of LGBTQ youth and implement relevant reforms. In one of the earliest victories of its kind for LGBTQ youth in the juvenile justice system, the settlement included a requirement that the facility develop and implement an antidiscrimination policy specifically to uphold the rights of LGBTQ youth in its care.
In L.P. v. Philadelphia, et al., the City of Philadelphia was required to provide medical treatment for a transgender young person living in a secure youth facility. In 2011, Lambda Legal settled a discrimination complaint it had filed against the city's Department of Human Services and affiliated entities on behalf of L.P., a transgender girl who suffered discrimination and abuse while in the custody of the city's Youth Study Center (YSC), a secure, short-term youth detention facility. In the year and a half that L.P. spent in the care of the YSC, staff consistently refused to respect her gender identity. She was housed in a male unit and refused affirming services, including gender-affirming medical care, and clothing and grooming options in accordance with her identity. In addition, she endured verbal abuse from staff and physical attacks by other residents, while staff failed to either protect her or appropriately punish her assailants and failed to call her by the name and pronouns she used. A settlement of the complaint included revisions to YSC policies addressing nondiscriminatory treatment of LGBT youth to include specific protections for transgender youth. These revisions included access to gender-affirming housing, clothing, and grooming options; the use of a transgender youth's personal name and pronoun; provision of necessary medical care; and required training for all staff regarding respectful communication and policy requirements.
In New York City, the case of Mariah L. v. Administration for Children's Services affirmed that transgender youth in foster care must be provided access to affirming medical treatment. Mariah L. was a transgender girl who had been in the care of New York City's Administration for Children's Services (ACS) since she was 10 years old. When she was 18, multiple health care providers determined that necessary therapeutic treatment for Mariah's gender dysphoria included gender-confirming surgery. However, although ACS was legally required to pay for medical care for children under its jurisdiction, the agency refused to cover the cost of Mariah's surgery on the grounds that it was "experimental" and "not medically necessary." The Legal Aid Society represented Mariah in New York City Family Court, where she obtained an order requiring ACS to provide the necessary treatment. ACS filed an appeal. In 2006, the Appellate Division remanded the case to family court, demanding that ACS provide a clear reason for its denial of treatment to Mariah.
A similar outcome occurred in Matter of D.F. v. Gladys Carrion, another case brought by NYC's Legal Aid Society. In 2014, D.F. was a 20-year-old transgender woman who had been in the care of New York City's ACS for five years. Part of the impetus for the removal of D.F. from her parents' home was their refusal to accept her sexual orientation or gender expression, resulting in their verbal and physical abuse of her. During her time in care, D.F. came out as transgender and legally changed her name and gender marker to reflect her female identity. She began undergoing hormone therapy, as reflected in her ACS case plan. However, when D.F. sought to undergo further procedures that would align her physical body with her gender identity, ACS refused to cover the medical costs, in violation of its own policy. ACS cited D.F.'s frequent absences from her care facilities as reason to refuse to finance the procedures, claiming that it could not be certain that D.F. would comply with necessary follow-up protocol. The court found ACS's decision to be "arbitrary and capricious" and ordered the agency to cover the cost of all further procedures that had been requested by D.F. to treat her gender dysphoria.
LGBTQ Nondiscrimination Laws—and Discriminatory "Conscience Clause" Laws
Advocacy and child welfare organizations have been successful in protecting the rights of LGBTQ youth by passing some state and local nondiscrimination laws and agency policies. In 2017, Lambda Legal, Children's Rights, and the Center for the Study of Social Policy published the first report to detail the laws and policies to protect LGBTQ youth in child welfare, juvenile justice, and homelessness systems of care in all 50 states, entitled Safe Havens: Closing the Gap Between Recommended Practice and Reality for Transgender and Gender-Expansive Youth in Out-of-Home Care. When Safe Havens was published, it reported that only 27 states and the District of Columbia have nondiscrimination protections in the child welfare system for sexual orientation and gender identity and that only 21 states and the District of Columbia have such laws in the juvenile justice context. The report also highlighted the lack of protections for homeless youth; only 12 states and the District of Columbia have policies applying to facilities serving runaway and homeless youth that protect against discrimination on the basis of sexual orientation and gender identity and expression (SOGIE).
The state-by-state information collected in writing the Safe Havens report was organized into two maps, one for child welfare systems and one for juvenile justice. The dynamic maps indicate whether each state has a child welfare- or juvenile justice-specific nondiscrimination statue, regulation, or agency policy on the books and, if so, whether it protects against discrimination based on sex or gender only, sexual orientation and sex or gender only, or sexual orientation and gender identity, or if the state has a statewide LGBTQ-specific agency policy. These maps have provided Lambda Legal and allies with valuable information on gaps in protection across the country.
Another critical and growing legislative trend, led by NCLR's #bornperfect campaign and national and local allies across the country, is to protect LGBTQ youth from so-called "conversion therapy," or therapy aimed at changing or suppressing LGBTQ identity in children. The practice is harmful to youth and condemned by all credible medical, social science, and child welfare organizations. However, currently only ten states (California, Connecticut, Illinois, Nevada, New Jersey, New Mexico, Oregon, Vermont, Rhode Island, and Washington) and Washington, D.C., prohibit the practice.
On a concerning note, increasing numbers of states have passed religious refusal laws in the context of child welfare. Currently, Alabama, Michigan, Mississippi, North Dakota, South Dakota, Texas, and Virginia have laws that prohibit states from taking any adverse action against child welfare providers (or child placement agencies) for actions that they take because of their religious or moral beliefs. Under such laws, providers can decline to allow same-sex couples, unmarried couples, or individuals of different faiths than their own from fostering or adopting children. Texas's law specifically allows providers to impose their religious beliefs and practices on the children in their care, which alarmingly opens LGBTQ youth to dangerous "conversion therapy" practices.
Lambda Legal is involved in a wide-reaching coalition dedicated to fighting against the proliferation of child welfare religious refusal laws. LGBTQ, child welfare, and civil rights organizations have banded together to oppose efforts to introduce new legislation that would expand discrimination to other states. The Every Child Deserves a Family Coalition is both working to oppose state laws and working affirmatively to develop affirming child welfare systems through grass roots efforts and by passing nondiscrimination laws on the state and federal levels.
In addition to policy advocacy, litigation efforts are under way to challenge discriminatory practices in provision of government funded care to children. The ACLU is also challenging Michigan's child welfare religious refusal law in Dumont v. Lyon. The ACLU sued on behalf of two same-sex couples who were turned away by state-contracted child placement agencies under the Michigan conscience clause law. The complaint alleges that the law violates the Establishment Clause and equal protection principles. Similarly, Lambda Legal, in Marouf v. Azar, is suing the U.S. Department of Health and Human Services and the U.S. Conference of Catholic Bishops on behalf of a lesbian couple in Texas who were denied an opportunity to foster a refugee child. Catholic Charities Ft. Worth, a federally funded provider for refugee children and unaccompanied minors, turned the couple away because they did not "mirror the Holy Family." Lambda filed suit, alleging that the organization's actions violate the Establishment Clause, equal protection, and substantive due process.
Looking Forward to the Next 20 Years
While LGBTQ youth in care enjoy greater protection of their rights today than they did 20 years ago, there is still a long way to go. Advocates will need to continue to fight discriminatory laws that seek to demonize transgender people or use religions as a reason to discriminate, while simultaneously working to pass nondiscrimination laws and promulgate affirming policies in states where they do not yet exist.
In addition, to fully protect system-involved LGBTQ youth, more must be done to protect youth experiencing homelessness. While federally funded programs and services must now protect LGBTQ youth, at the state level protections are not comprehensive and many youth must rely on unsafe and non-affirming shelters. New York State offers a promising model. In 2015, the state amended its law regulating programs that provide services to runaway and homeless youth to include an explicit statement that program staff and volunteers may not "engage in or condone discrimination or harassment on the basis of . . . sex, sexual orientation, gender identity or expression." N.Y. Comp. Codes R. & Regs. tit. 9, § 182-1.5(g)(i).
As protections and support have increased, so have the number of LGBTQ youth who are able to share their lived experiences in care—both negative and positive—and help shape policy and practice reform for the better. Youth in Florida, Nevada, Texas, Virginia, and many other places around the country are actively involved in making change. Our communities must help ensure that they are not only supported but compensated for their time as the valued consultants they are. Grassroots organizations social justice organizations led by queer and trans youth of color like BreakOUT in New Orleans and Advocates for Richmond Youth and LGBTQ-specific community support centers and transitional housing programs such as Zebra Coalition in Orlando, Diversity House in Baton Rouge, Ruth Ellis Center in Detroit and Sanctuary in Palm Springs, are invaluable resources that have been critical players in systemic reform in their communities and provide youth the support to play a critical role in improving the experience of their peers both now and in the future.
Finally, new issues facing LGBTQ youth have become more apparent in recent years, creating new challenges and areas of work for advocates. One area of recent advocacy is around sex offender laws, which disproportionately affect LGBTQ young people. According to a 2016 report, Unjust: How the Broken Criminal Justice System Fails LGBT People, young people who have relationships with people of their same sex are at risk for criminalization because their sexual behavior is considered less acceptable by family members, school officials, and police. In addition, Romeo and Juliet laws—which lessen or decriminalize statutory rape crimes when the individuals are less than a few years apart in age—sometimes contain gendered language, meaning that LGBTQ young people are subject to serious criminal penalties for consensual sexual activity. When these young people are required to register as sex offenders, it affects their ability to access education, housing, employment, and welfare for the rest of their lives.
New social science research demonstrates the harm to youth of being subjected to sex offender registration laws. First, children who commit sexual offenses have a very low risk of reoffending [registration required], as much as eight times lower than the rate of general recidivism by youth. In addition, research has shown that registered children have negative health outcomes—compared with non-registered children, children required to be on the register have higher rates of attempted suicide, problems with peers, and unwanted sexual conduct and sexual assault. They also report less safety and more experiences with violence. These studies demonstrate the importance of continued challenges to the constitutionality of such laws and provide a means to do so. The primary authors of the two studies described above—Dr. Michael Caldwell and Dr. Elizabeth Letourneau—have served as experts or submitted affidavits in support of two successful challenges to juvenile sex offender registration schemes. These challenges are especially important for LGBTQ youth because they already face public health disparities and discrimination in housing and employment.
It's past time to end these disparities and ensure that civil rights of youth in care are not an afterthought but a core aspect of ensuring their well-being. Most importantly, going forward we must support and elevate the brave youth who are making change every day by refusing to be anyone but themselves and we must allow them to lead the way to true equity.