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

Temple Law Review

Volumn 79, Issue 2, 2006, Pages 415-438

  Estrada, Rudy ^a   Marksamer, Jody ^b  

^a Lambda Legal Defense and Education Fund ^*

^b National Center for Lesbian Rights (NCLR)

Author keywords

[No Author keywords available]

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EID: 33947697939     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (33)

1. We use the term "transgender" to describe individuals who have a gender identity or gender expression that differs from that traditionally associated with their sex assigned at birth. The phrase "gender identity" refers to the internal identification or self-image of gender. For most people, their gender identity is consistent with their sex assigned at birth; however, for transgender individuals, their gender identity differs from their assigned sex. A "transgender woman" is a transgender individual who identifies as female, and a "transgender man" is a transgender individual who identifies as male. Some transgender individuals experience clinically significant distress or impairment in important areas of functioning in relation to their gender identities. These individuals may be diagnosed with Gender Identity Disorder. According to the American Psychiatric Association's Diagnostic and Statistical Manual, Gender Identity Disorder is described as a "strong and persistent cross-gender identification" and "persistent discomfort about one's assigned sex or a sense of inappropriateness in the gender role of that sex," which causes "clinically significant distress or impairment in social, occupational, or other important areas of functioning." AM. PSYCHIATRIC ASS'N, DSM-IV: DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 532-33 (4th ed. 1994).
2. The types of harassment that LGBT youth experience include verbal abuse, such as derogatory name calling, demeaning and insulting comments, and threats of physical or emotional acts or negative consequences (including religious condemnation); physical abuse, including destroying property, pushing, hitting, and other acts of violence; sexual abuse, including unwanted sex acts, touching, pantomime, and threats; and emotional abuse such as shunning or isolation.
3. Pumo ex rel. Doe v. Bell, 754 N.Y.S.2d 846, 847-48 (N.Y. Sup. Ct. 2003). The plaintiff argued that not being allowed to wear dresses and skirts caused her great psychological distress and amounted to illegal discrimination on the basis of her disability (Gender Identity Disorder) and sex under the New York State housing nondiscrimination law, as well as a violation of her First Amendment freedom of expression. Id. at 847-48. The court agreed and ordered the Administration for Children's Services to make reasonable accommodations to allow her to dress and otherwise present herself consistently with her female gender identity. Id. at 853. 856.
4. Foster Care Anti-Discrimination Act of 2003, 2003 Cal. Legis. Serv. 331 (West) (codified as amended at CAL. HEALTH & SAFETY CODE §§ 1522.41, 1529.2, 1563 (West Supp. 2006) and CAL. WELF. & INST. CODE §§ 16001.9, 16003, 160013 (West Supp. 2006)). Under this law. all foster youth in California have the right "[t]o have fair and equal access to all available [child welfare] services, placement, care, treatment, and benefits, and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status." CAL. WELF. & INST. CODE § 16001.9(a)(23) (emphasis added). "[A]ll persons engaged in providing care and services to foster children" are also entitled to these same rights. Id. § 16013(a). Because training is crucial to enable service providers to fulfill their responsibilities to provide safe and nondiscriminatory care, placement, and services to foster youth, California law also mandates initial and ongoing training for all group home administrators, foster parents, and department licensing personnel. See CAL. HEALTH & SAFETY CODE § 1522.41(c)(1)(H) (requiring initial training for group home administrators); id. § 1522.41(f)(1) (requiring ongoing training for home administrators); id. § 1529.2(b)(3)(F) (requiring initial training for foster parents); id. § 1529.2(b)(4)(E) (requiring annual post-placement training for foster parents; id. § 1563(c)(5) (requiring annual training for licensing personnel in group homes and foster family agencies).
5. Memorandum from Jess McDonald, Director, Ill. Dep't of Children & Family Servs. to Rules & Procedures Bookholders, Child Prot. & Child Welfare Staff, Purchase of Serv. Agency Staff (Feb. 3, 2003), available at http://www.state.il.us/dcfs/docs/pg200302.pdf.
6. R.G. v. Koller, 415 F. Supp. 2d 1129, 1154-55 (D. Haw. 2006).
7. CWLA is the nation's oldest and largest advocate for children and youth, with a membership of more than nine hundred public and private agencies, including every state child welfare system. Child Welfare League of America, Who We Are and What We Do, http://www.cwla.org/whowhat/whowhat.htm (last visited Oct. 9, 2006).
8. LSC, founded in 1975, provides direct legal representation and social work services to children and youth in the San Francisco Bay Area, with a mission to provide free legal and social services to children and youth in order to stabilize their lives and help them realize their full potential. Legal Services for Children, Programs, http://www.lsc-sf.org/web/about_programs.html (last visited Oct. 9, 2006).
9. LSC and NCLR, in collaboration with the National Juvenile Defender Center also recently started a new initiative, the Equity Project, to identify and promote strategies to ensure that LGBT youth receive excellent legal representation and fair and equitable treatment in juvenile delinquency courts.
10. Examples of these coalitions include: The Administration for Children's Services in New York City, LGBTQQ Action Group, the Los Angeles County Task Force to End Homophobia, the San Francisco-based Out of Home Youth Advocacy Coalition, the Rocky Mountain Equal Care Coalition in Colorado, the Safe Harbors Project in Connecticut, and the Alliance for LGBTQ Youth in Foster Care in Milwaukee, Wisconsin.
11. See generally CHILD WELFARE LEAGUE OF AM., SERVING GAY & LESBIAN YOUTHS: THE ROLE OF CHILD WELFARE AGENCIES (1991) (discussing challenges of identifying and addressing needs of lesbian and gay youth in child welfare agencies and providing recommendations to better serve lesbian and gay youth in child welfare agencies);
12. TERESA DECRESCENZO & GERALD P. MALLON, CHILD WELFARE LEAGUE OF AM., SERVING TRANSGENDER YOUTH: THE ROLE OF CHILD WELFARE SYSTEMS (2000) (discussing additional stressors transgender youth encounter and providing recommendations to help alleviate those stressors);
13. RANDI FEINSTEIN ET AL., URBAN JUSTICE CTR., JUSTICE FOR ALL? A REPORT ON LESBIAN, GAY, BISEXUAL AND TRANSGENDERED YOUTH IN THE NEW YORK JUVENILE JUSTICE SYSTEM (2001), available at http://www.urbanjustice.org/pdf/ publications/lesbianandgay/justiceforallreport.pdf [hereinafter JUSTICE FOR ALL?] (discussing challenges LGBT youth must face after entering juvenile justice system and providing recommendations to juvenile justice system professionals to ensure that no one mistreats LGBT youth);
14. COLLEEN SULLIVAN ET AL., LAMBDA LEGAL DEF. & EDUC. FUND, YOUTH IN THE MARGINS: A REPORT ON THE UNMET NEEDS OF LESBIAN, GAY, BISEXUAL, AND TRANSGENDER ADOLESCENTS IN FOSTER CARE (2001), available at http://www.lambdalegal.org/cgi-bin/iowa/news/publications.html?record=899 [hereinafter YOUTH IN THE MARGINS] (discussing problems LGBT youth have experienced in foster care that state policy makers have not addressed and providing recommendations to alleviate these problems). In addition, notable pioneer organizations providing appropriate services to LGBT youth in state custody include Gay and Lesbian Social Services, Inc. ("GLASS") in Los Angeles and the New York City branch of Green Chimneys Children's Services. More information about these two organizations can be found on their websites, http://www.glassla.org and http://www. greenchimneys.org, respectively.
15. Interview with Anonymous Bisexual Youth. Model Standards Project, in L.A., Cal. (Jan. 17, 2003).
16. Interview with Anonymous Gay Youth. Model Standards Project, in New Orleans, La. (Mar. 12, 2003).
17. Colleen A. Sullivan, Kids, Courts and Queers: Lesbian and Gay Youth in the Juvenile Justice and Foster Care Systems, 6 TUL. J.L. & SEXUALITY 31. 57 (1996)
18. (citing PAUL GIBSON, U.S. DEP'T HEALTH & HUMAN SERVS., GAY MALE AND LESBIAN YOUTH SUICIDE, in REPORT OF THE SECRETARY'S TASK FORCE ON YOUTH SUICIDE 113 (1989)).
19. See YOUTH IN THE MARGINS, supra note 11, at 11 (citing PHILA. LESBIAN & GAY TASK FORCE, DISCRIMINATION AND VIOLENCE AGAINST LESBIAN WOMEN AND GAY MEN IN PHILADELPHIA AND THE COMMONWEALTH OF PENNSYLVANIA (1996)) (noting survey that indicated family members had accosted thirty-three percent of gay men and thirty-four percent of lesbians based on their sexual orientation). Whether an LGBT youth is accepted by his or her family or experiences violence or rejection has a lasting effect on his or her health and development and is often a factor that leads to involvement in state care. Many LGBT youth who are harassed and rejected by peers or family members develop mental health or substance abuse problems stemming from self-esteem issues and feelings of isolation.
20. See Gary Remafedi, Adolescent Homosexuality: Psychosocial and Medical Implications, 79 PEDIATRICS 331, 335-36 (1987) (discussing prevalence of substance abuse and mental health problems in study of gay and bisexual teens). Moreover, youth with substance abuse or mental health issues are more likely to have family problems that result in child welfare involvement, become involved in the juvenile justice system, or end up living on the streets.
21. See Anthony R. D'Augelli. Incidence and Mental Health Impact of Sexual Orientation Victimization of Lesbian, Gay, and Bisexual Youths in High School, 17 SCH. PSYCHOL. Q. 148, 158-59 (2002) (concluding that an association exists between past victimization by peers and current mental health in lesbian, gay, and bisexual youth).
22. For example, a 2005 national school climate study found that ninety percent of LGBT students reported being harassed or assaulted during the past year. HARRIS INTERACTIVE & GAY, LESBIAN, AND STRAIGHT EDUC. NETWORK (GLSEN), FROM TEASING TO TORMENT: SCHOOL CLIMATE IN AMERICA, A SURVEY OF STUDENTS AND TEACHERS 7 (2005).
23. See Ritch C. Savin-Williams, Verbal and Physical Abuse as Stressors in the Lives of Lesbian, Gay Male, and Bisexual Youths: Associations with School Problems, Running Away, Substance Abuse, Prostitution, and Suicide, 62 J. CONSULTING & CLINICAL PSYCHOL. 261, 264 (1994) (noting forty percent truancy rate and twenty-eight percent drop out rate among gay or bisexual male students); Sullivan, supra note 14, at 57 (noting twenty-eight percent drop out rate among gay and lesbian youth (citing GIBSON, supra note 14, at 113)).
24. One study found that LGBT students who were harassed at school were more than three times more likely than students who were not harassed to carry a weapon to school, to seriously consider suicide, or to miss at least one day of school in the last thirty days because they felt unsafe. CAL. SAFE SCHS. COAL. & 4-H CTR. FOR YOUTH DEV., SAFE PLACE TO LEARN: CONSEQUENCES OF HARASSMENT BASED ON ACTUAL OR PERCEIVED SEXUAL ORIENTATION AND GENDER NON-CONFORMITY AND STEPS FOR MAKING SCHOOLS SAFER 12 (2004), http://www. casafeschools.org/SafePlacetoLearnLow.pdf.
25. See generally IN THE SYSTEM AND IN THE LIFE: A GUIDE FOR TEENS AND STAFF TO THE GAY EXPERIENCE IN FOSTER CARE (A1 Desetta ed., 2003) [hereinafter IN THE SYSTEM AND IN THE LIFE] (examining gay and lesbian youths' stories of discrimination in the foster system, many of which recount incidents of abuse, mistreatment, and homophobia, and providing a resource to assist caretakers and professionals in caring for LGBT youth);
26. GERALD P. MALLON, WE DON'T EXACTLY GET THE WELCOME WAGON: THE EXPERIENCES OF GAY AND LESBIAN ADOLESCENTS IN CHILD WELFARE SYSTEMS (1998) (presenting narratives of marginalized gay and lesbian youths about their child welfare experiences).
27. JUSTICE FOR ALL?, supra note 11, at 16 (citing JOINT TASK FORCE OF NEW YORK CITY'S CHILD WELFARE ADMIN. & THE COUNCIL OF FAMILY AND CHILD CARING AGENCIES, IMPROVING SERVICES FOR GAY AND LESBIAN YOUTH IN N.Y.C.'S CHILD WELFARE SYSTEM: A TASK FORCE REPORT (1994)).
28. Id. at 2 (finding that safety of LGTB youth is in jeopardy because they often experience verbal and physical harassment from staff and peers in the juvenile justice system); see also R.G. v. Koller, 415 F. Supp. 2d 1129, 1144-45 (D. Haw. 2006) (noting extensive documentation of anti-LGBT sexual, physical, and verbal assaults against plaintiffs at youth correctional facility); Mary Curtin, Lesbian and Bisexual Girls in the Juvenile Justice System, 19 CHILD & ADOLESCENT SOC. WORK J. 285, 293 (2002) (finding every participant in survey had witnessed or experienced openly homophobic peer behavior).
29. See R.G., 415 F. Supp. 2d at 1145-46 (admonishing staff for taking virtually no action to stop anti-LGBT assaults despite witnessing or receiving reports of abuse).
30. A study in New York City found that seventy-eight percent of LGBT youth living in group homes were removed from or ran away from at least one prior placement because of hostility toward their sexual orientation or gender identity. See JUSTICE FOR ALL?, supra note 11. at 16 (citing JOINT TASK FORCE, supra note 20) (stating that LGBT youth who run away from foster care placements often become homeless).
31. See JUSTICE FOR ALL?, supra note 11, at 18 (stating up to forty percent of homeless youth may identify themselves as LGBT);
32. YOUTH IN THE MARGINS, supra note 11, at 11 (citing National Network of Runaway and Youth Services as reporting twenty to forty percent of youths who become homeless each year are gay or lesbian);
33. Bryan N. Cochran et al., Challenges Faced by Homeless Sexual Minorities: Comparison of Gay, Lesbian, Bisexual and Transgender Homeless Adolescents With Their Heterosexual Counterparts, 92 AM. J. PUB. HEALTH 773, 773 (2002) (summarizing studies finding six to thirty-five percent of homeless youth to be gay or lesbian);