Restoring Justice

This issue brief contains a correction.

Lesbian, gay, bisexual, and transgender, or LGBT, youth continue to be significantly over-represented in the nation’s juvenile justice system, even as overall rates of youth incarceration are on the decline. It is estimated that 300,000 LGBT youth are arrested and/or detained each year, more than 60 percent of whom are black or Latino. While LGBT youth represent just 5 percent to 7 percent of the nation’s overall youth population, they comprise 13 percent to 15 percent of those currently in the juvenile justice system.

These high rates of contact with the juvenile justice system are partly due to the compounding of challenges faced by LGBT youth, including family rejection, homelessness, bullying and harassment, biased school discipline policies, and failed safety net programs. Through both policy and practice, the Obama administration has made unprecedented strides to address these drivers of incarceration. Yet far less attention has been paid to the unjust experiences and poor conditions that LGBT youth encounter within the system, and much more needs to be done to ensure that these youth are treated fairly, feel safe in their surroundings, and have equal access to all available services.

Fortunately, a blueprint for supporting LGBT youth under the supervision of the juvenile justice system already exists. Over the past few years, several states and jurisdictions have enacted comprehensive nondiscrimination policies that serve as a model for how to treat LGBT youth with dignity and respect. This brief reviews these policies and finds that each contains similar themes and provisions, which, when taken together, reflect best practice guidelines that have long been promoted by experts in the field.

It is important to note that these policies are working for the few individuals who fall under their purview, but the current patchwork of practices around the country still leaves most LGBT youth within the system vulnerable and without recourse. The federal government can and should bridge this gap.

To do so, the Office of Juvenile Justice and Delinquency Prevention at the U.S. Department of Justice should facilitate widespread adoption of LGBT-supportive juvenile justice policies and procedures and should advise all jurisdictions to include practice guidelines regarding the following:

• Nondiscrimination provisions
• Screening and intake
• Classification and housing placement
• Confidentiality
• Privacy and safety for transgender youth
• Respectful communication
• Access to LGBT supports
• Medical and mental health services and treatment
• Staff training and policy dissemination
• Youth education and policy dissemination
• Enforcement

This brief lifts up what works for LGBT youth by outlining the critical components of model juvenile justice policies that are already being implemented around the country and offers sample language that all jurisdictions can adopt.

LGBT youth experience high rates of discrimination and abuse

LGBT youth across the country face significant bias, harassment, and unfair treatment throughout the course of their delinquency cases and are confronted with a range of issues within the juvenile justice system. These include unsafe detention settings, inadequate medical and mental health resources, and blatant disrespect and disregard for their sexual orientation and/or gender identity.

Eighty percent of juvenile justice professionals who responded to an Equity Project survey indicated that a lack of safety in detention was a serious issue for LGBT youth, and more than half of detention workers surveyed reported having personal knowledge of situations where LGBT youth were mistreated because of their sexual orientation or gender identity. For example, LGBT youth are often singled out and punished for engaging in the same, consensual, age-appropriate behaviors as their heterosexual peers, such as hugging and kissing; reprimanded and banned from dressing or presenting in a manner consistent with their gender identity; and denied access to adequate sexual and mental health care services.

What’s more, even well-meaning juvenile justice professionals lack an understanding of the unique challenges LGBT youth face, as well as the training and resources to support them. This limits their ability to fulfill their professional and ethical responsibility to foster safe and supportive environments for these youth.

Model policies exist and are working

Fortunately, more than a dozen states and jurisdictions around the country are actively addressing the disproportionate representation and discriminatory treatment of LGBT youth in the juvenile justice system. These programs and policies work against the systemic inequities that undermine fair and just treatment of these youth and derail their transition back into their communities.

It is important to note that while some LGBT juvenile justice policies are facility specific and apply only to youth in secure confinement, the best policies will apply across social service and juvenile justice agencies and protect any youth in the juvenile justice system, meaning any youth under any type of supervision of the state, whether that is in nonsecure, out-of-home placement; pre-adjudication or post-adjudication secure confinement; or at home and on probation.

Based on the authors’ review, the following states and jurisdictions have at least one type of written policy that applies to LGBT youth in the juvenile justice system: California; Cook County, Illinois; Hawaii; Louisiana; Washington, D.C.; Massachusetts; Michigan; New Jersey; New Orleans, Louisiana; New York City, New York; Ohio; and Philadelphia, Pennsylvania.

While there are variances across policies, each contains similar key elements that reflect the best thinking and practices from experts in the field. In fact, these policies include many of the recommendations from two exemplary sources. The first is the Model Non-Discriminatory Services Policy from “Hidden Injustice,” an in-depth report about the experiences of LGBT youth in the juvenile justice system. The second, “A Roadmap for Change,” is one of the first comprehensive publications to offer federal policy recommendations to address the myriad criminal justice issues that impact LGBT people and people living with HIV, or PLWH, including LGBT youth.

Taken together, these existing policies form the blueprint for supporting LGBT youth and serve as a real-time case study in what works. Each of the critical components of a model juvenile justice policy is outlined below, and sample language has been pulled directly from the text of the various jurisdictional policies and statutes noted above.

Nondiscrimination provisions

A strong and comprehensive nondiscrimination clause—one that mandates that staff maintain and promote a facility that provides the highest quality of services to youth regardless of sexual orientation or gender identity—must be the foundation of all juvenile justice policies. Yet only 10 states currently protect youth on the basis of both sexual orientation and gender identity.

Policies should underscore the responsibility of staff to model fair, respectful, and nonjudgmental behaviors and to protect LGBT youth from discrimination and harassment—physical, verbal, sexual, or otherwise—by their peers.

Additionally, clothing, grooming, and gender presentation are often defining characteristics for all adolescents, including LGBT youth who may be gender nonconforming. Staff should respect LGBT youth’s self-expression and allow them to dress and present themselves in a manner consistent with their gender identity and/or expression. Similarly, grooming rules and restrictions regarding hair, makeup, shaving, etc. should be the same across male and female facilities and all youth should be held to the same dress code standards.

The following are a sample of nondiscrimination provisions that are inclusive of LGBT youth:

Nondiscrimination provisions

• Employees, volunteers, and contract providers that offer services under the supervision of [name of the system] shall not discriminate against or harass, physically or verbally, any youth in their care because the youth is LGBT or because the employee perceives a youth to be LGBT.
• Staff shall work to meet the diverse needs of youth in care and shall provide a safe, healthy, and accepting environment in which all individuals are treated with respect and dignity.
• Staff shall provide LGBT youth with access to educational, rehabilitative, recreational, and other programming on the same basis as other residents.
• Staff shall provide fair and equal treatment to all youth in care and custody and shall protect youth from harassment and discrimination.

Gender presentation

• Youth should not be required to maintain hairstyles or to dress in keeping with a style perceived to be appropriate for one gender or the other.
• All youth should be permitted personal freedom in personal grooming as long as their appearance does not conflict with the facility’s requirements for safety, identification, and hygiene.
• Transgender and gender nonconforming youth may possess items necessary to present their gender identity consistent with safety and security procedures, including binders, packers, girdles, breast inserts, bras, and other items as requested.

Screening and intake

The intake process presents an initial opportunity for staff to identify the unique needs of LGBT youth and concerns the youth might have about their safety. Policies and procedures should foster safe and supportive environments where LGBT youth feel comfortable disclosing their sexual orientation and gender identity at their own pace. Staff should be aware of the stages of development of a youth’s sexual orientation and gender identity and not assume that a youth is LGBT unless the young person voluntarily identifies as such.

At intake, interviewers must take care to sensitively inquire without judgment about any fears that youth may have of being harassed or ostracized in the facility or placement. Youth may voluntarily disclose their sexual orientation and/or gender identity when and if they feel ready and when and if a safe environment and trusting relationship has been established, but no youth should be compelled to disclose.

Sample screening and intake provisions include:

• Some youth will disclose that they are LGBT. If a youth discloses their sexual orientation or gender identity, the intake worker should talk with the youth about it in an open and nonjudgmental fashion and determine if the youth has particular concerns or needs related to being LGBT.
• Upon conducting an intake of a youth, staff shall ask the youth how they identify by gender, and the youth shall receive placement and services, as appropriate, in accordance with their gender identity.

Classification and housing placement

As a general rule, LGBT youth should be classified and housed in accordance with their gender identity. This includes placement in sex-segregated rooms that reflect their gender identity, as well as access to appropriate gender-specific facilities, such as showers and restrooms. Youth should not be isolated as a means of keeping them safe nor prohibited from having a roommate based on their actual or perceived sexual orientation. However, decisions on placement should be individualized based on a youth’s physical and emotional well-being and their own perspective about where they will be most secure.

Sample classification and placement provisions include:

Limits on isolation and segregation of LGBT youth

• In accordance with the guidelines of the Prison Rape Elimination Act, or PREA, LGBT youth shall not be placed in isolation or segregation as a means of keeping them safe from discrimination, harassment, or abuse except under court order or for medical reasons.
• Any youth who report feeling safer sleeping in individual quarters shall be allowed to do so when available at that placement. No youth shall be forced into individual sleeping quarters.

Placement decisions based on gender identity

• Youth who identify as transgender should be placed in a location consistent with the stated gender identity, absent a safety-based objection.
• LGBT youth should not be placed in particular housing, bed, or other assignments solely on the basis of such status nor should being LGBT be considered an indicator of likelihood of being sexually abusive.

Classification decisions based on individualized assessment

• In order to make decisions for specific residents, a multidisciplinary team of trained, experienced professionals from diverse disciplines should be convened to provide a comprehensive assessment within 48 hours of the resident’s arrival.
• Placement decisions for youth, especially transgender youth, should be reassessed at least monthly to review any threats to safety experienced by the youth.

Confidentiality

As noted above, LGBT youth will disclose their sexuality and gender identity at their own discretion. Staff should never disclose this information to any outside parties, including health care or social service providers or a youth’s family and friends, without explicit consent of the young person, unless otherwise required by the law. Even when personnel are compelled to share youth’s confidential information, they should first notify youth that this information will be shared and why.

Privacy and safety of transgender youth

Simply put, all youth have a right to privacy, and no one should be subject to physical exposure in any setting that would invade their privacy, render them vulnerable to abuse, and/or humiliate or degrade them.

Sample privacy and safety provisions include:

• Transgender youth should be provided with safety and privacy when using the shower and bathroom and when dressing and undressing. Transgender youth should not be required to shower or dress in front of other youth and should be permitted to use a single occupancy bathroom and shower if available.
• Staff shall not physically search youth in any manner that is humiliating or degrading or for the purpose of determining the youth’s physical anatomy. Transgender youth may request that either a male or female staff member conduct a strip search when such searches are required.

Respectful communication

Communication with youth is an essential function of any adult working in the juvenile justice system. It is imperative that juvenile justice professionals use appropriate, welcoming language in their communication with all youth. Such communication is particularly important for establishing trust with LGBT youth, who may shut down when they see red flags—such as presumptions that the youth is heterosexual or indications of what they perceive to be homophobia—and may censor what and how they communicate based on their feelings of safety.

Sample communication provisions of any juvenile justice policy include:

No demeaning language

• Staff must use respectful language and terminology and must not use terms that convey prejudice or discrimination toward LGBT youth.
• Staff must promptly and consistently intervene to stop other youth from using terms that convey prejudice or discrimination toward LGBT youth.
• Staff must not imply or tell LGBT youth that they are abnormal, deviant, or sinful or that they can or should change their sexual orientation, gender identity, or gender expression.

Preferred name and pronoun use

• Youth’s chosen names and pronouns that reflect their gender identity must be used and respected, even if their name has not been legally changed.
• A request by youth to use gender-neutral pronouns should be honored as well.
• Youth may indicate whether they want their chosen names to be used in writing and whether they want them shared with anyone else.

Access to LGBT supports

In addition, facilities should provide access to supportive age-appropriate materials, such as LGBT-inclusive magazines and books, and allow access to advocacy groups that provide information to youth about LGBT issues.

Sample presentation access provisions include:

• LGBT literature and other visible signs should be available in the common areas, office, etc. that indicate staff are knowledgeable and open to communication on these topics.
• Libraries shall include LGBT-affirming books, magazines, and other materials, and all youth should be made aware of these resources and have access to them.

Medical and mental health services and treatment

Youth under supervision of the state, particularly youth in confinement, must receive, at a minimum, constitutionally adequate health care. Denying appropriate treatment to transgender youth so they can live in line with their gender identity poses serious risk of negative health and social consequences, including depression and suicide attempts. Both the American Medical Association and the American Psychological Association have adopted public statements recognizing the necessity for transition-related medical care and have called for improved access to these treatments. In addition, these and other reputable health organizations have adopted statements regarding the need for transgender-specific care in institutional settings. All juvenile justice professionals play an important role in ensuring that youth in the custody or under supervision of the court have access to adequate medical and mental health care.

Transgender youth who receive appropriate medical care have more-positive outcomes. For example, in one case study, “an attorney achieved a groundbreaking victory for her 15-year-old transgender client” when a court-ordered assessment resulted in a successful argument for her client to receive transition-related health care treatment. The attorney stated:

[The order] has been pivotal for [her] client’s development and well-being. It has allowed her to receive the standard transition-related medical and mental health treatment she needs, and it has given her hope that the courts and foster care system are capable of affirming and respecting her identity.’

In addition to particular medical care for transgender youth, it is also important to note that LGBT youth may suffer psychological abuse through inappropriate treatment and/or services, such as so-called “conversion” therapy. Also known as “reparative” therapy or “sexual-orientation change efforts,” conversion therapy is a dangerous practice that attempts to change someone’s sexual orientation or gender identity—literally to convert an individual from gay to straight. Conversion therapy has been discredited and highly criticized by virtually all major American medical, psychiatric, psychological, and professional counseling organizations.In addition to being ineffective, conversion therapy has been found to actually cause harm. People who have undergone conversion therapy have reported increased anxiety, depression, and in some cases, thoughts of suicide.It is important to note that even if not officially called reparative or conversion therapy, there may be other counseling efforts aimed at changing a young person’s sexual orientation or gender identity. Whether these efforts come from a licensed therapist, a school counselor, a priest or minister, or some other advocate, they are still just as harmful and should be prohibited.

Although ill equipped to do so, the juvenile justice system has become a de facto mental health provider for many youth. While not all LGBT youth require mental health services, for those who do, it is critical to have providers competent in working with LGBT youth.

Sample health-care-related provisions of any juvenile justice policy include:

Specific medical and mental health care needs of transgender youth

• If a transgender youth has been receiving hormone treatment prior to juvenile justice system involvement, they should continue to be provided with access to that care.
• If a transgender youth requests assessment or treatment, the agency should provide access to medical and mental health care providers who are knowledgeable about the health care needs of transgender youth.

Counseling should not try to change LGBT identity

• Agencies shall not employ or contract with mental health providers who attempt to change a youth’s sexual orientation, gender identity, or gender expression
• If they request counseling, LGBT youth must be offered counseling by nonjudgmental individuals who are knowledgeable about sexual orientation and gender identity.

Sex-offender treatment

• If LGBT youth require sex-offender treatment—only if court ordered and they have been adjudicated delinquent of a sex offense—such treatment must not discriminate based on sexual orientation, gender identity, or gender expression and should not criminalize or pathologize LGBT identity.

Provide appropriate medical and mental health care

• Mental health providers should offer appropriate counseling and information to support LGBT youth related to any questions about their sexual orientation, gender identity, or gender expression, if needed. However, they should not assume that LGBT youth who present mental health issues are struggling with their identity or that their identity is the sole cause for their concerns.
• Medical providers should provide appropriate medical information and health services education for all youth that is inclusive of issues pertinent to LGBT youth.

Staff training and policy dissemination

While the creation and implementation of enforceable written policies is imperative, policy development alone is not enough. Juvenile justice professionals need training to serve LGBT youth in a culturally and linguistically competent manner. Without nondiscrimination policies and training, even the most well-meaning juvenile justice professionals are often ill equipped to provide competent and equitable services to LGBT youth.

When facilitating interviews about lessons learned in the Equity Project model sites, where hundreds of juvenile justice professionals have been trained over the past three years, there was a strong sentiment from participants that training is key and must be continuous. Participants in those model sites stated that in order for training to be effective, it must be ongoing due to high turnover rates. Training also must be mandated within an agency’s written policy.

Notably, many of the jurisdictions with inclusive nondiscrimination policies on the books have assigned dedicated staff to serve as LGBT liaisons who aid in the ongoing training, dissemination, and implementation of these policies—from Massachusetts’ regional directors to Cook County, Illinois’, multidisciplinary team.

Sample staff training policy provisions include:

Training

• All agency employees, volunteers, and contractors must be trained on ensuring dignity, respect, and fairness for LGBT youth in their care. These trainings may include, but are not limited to:
  – How to create and maintain a safe and accepting environment
  – How to work with LGBT youth in a respectful and nondiscriminatory manner
  – How to communicate effectively and professionally with LGBT youth
  – How to draft and implement effective grievance procedures for youth to report discrimination or harassment based on sexual orientation, gender identity, and gender expression
  – The content of any policy put forth at the facility

Policy dissemination

• All agency employees must receive a copy of the policy with any orientation materials and acknowledge receipt and understanding of this policy with their signature and the date.

Youth education and policy dissemination

In addition to staff training, youth should be apprised of all of their rights when entering the juvenile justice system. This includes education about the system’s nondiscrimination policies and practices and information on how to file complaints.

Sample youth education and policy provisions include:

• Youth must be told that an agency will provide an inclusive organizational culture where all youth are respected and safe. Youth must be told that name-calling and other harassment, based on any characteristics, will not be accepted
• Youth should be informed of all of their rights and responsibilities under the agency policy.
• Youth should be informed of the procedures for reporting complaints.

Enforcement

A policy is only effective if there are mechanisms in place to ensure that it is enforced consistently. Each juvenile justice policy should outline disciplinary actions for those who violate the policy with specific accountability provisions for staff. A clear grievance process through which LGBT youth can report and seek recourse for incidents of bias, harassment, and abuse must also be included.

Sample enforcement provisions include:

• Discrimination against or harassment of youth by staff, volunteers, contractors, or other youth on the basis of actual or perceived sexual orientation, gender identity, or gender expression shall not be tolerated.
• Supervisors and managers shall promptly address and investigate any reported incident of alleged discrimination and/or harassment.

Conclusion

These policy guidelines reflect the best practices already in place around the country. All jurisdictions should adopt similar measures to ensure that LGBT youth under the supervision of the juvenile justice system are treated fairly, are free from harm, and receive the supportive treatment and services they deserve.

Aisha Moodie-Mills is a Senior Fellow at the Center for American Progress and Director of the FIRE Initiative, which explores the intersections of race, class, sexual orientation, and gender identity and the impact of public policy on LGBT people of color. Christina Gilbert is the director of the Equity Project, an initiative to ensure that LGBT youth in juvenile delinquency courts are treated with dignity, respect, and fairness.

The authors would like to thank Jody Marksamer for his research and inventory of LGBT-inclusive juvenile justice policies, on which this research is based. They would also like to thank Faith Deredge for conducting the interviews that are the source of the Red Hook Residential Center and Massachusetts Department of Youth Services profiles.