Pride Month: LGBTQ+ Youth & The Youth Legal System

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Author: Megan Holmes is a Legal Extern for Summer 2021

Alongside Pride Month’s parades and rainbow flags come harsh truths about the disparate treatment that persists for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual (LGBTQ+) young people in the United States - particularly those in contact with the youth legal system. Research from The Williams Institute estimates that half of LGBTQ+ youth in the United States are “at risk” for being arrested or coming in contact with the youth legal system.

LGBTQ+ youth face immense challenges in the youth legal system, where they are overrepresented by more than two times their prevalence among the general population. While only 7 to 9 percent of the total U.S. youth population is estimated to identify as lesbian, gay, bisexual, transgender or gender nonconforming, such identities comprise 20 percent of the youth legal system population. That number is even higher for girls in the youth legal system, reaching 40 percent. While youth of color identify as LGBTQ+ at the same rate as white youth, they are overrepresented within the incarcerated LGBTQ+ youth population as 85 percent of LGBTQ+ youth in the youth legal system are of youth of color.

Research shows that chain reactions of rejection, isolation, and abuse that LGBTQ+ youth face simply for being themselves are at the root of this overrepresentation, reflecting systemic bias in communities and families, the public school system, and the child welfare system, and leading to higher rates of contact with law enforcement, as well as disproportionate punishment. 

Homelessness & Child Welfare
A major factor pushing LGBTQ+ youth into the legal system is homelessness. LGBTQ+ youth are vastly overrepresented in the foster care system and in populations of youth experiencing homelessness. LGBTQ+ youth are nearly three times more likely to face removal from their home by a social worker than straight youth, most often due to physical abuse or conflict with parents surrounding their identity.

According to The National Network for Youth, between 20 and 40 percent of homeless youth are LGBTQ+, but reliable nationwide data is sparse. According to a 2017 survey of homeless youth in San Francisco, 49 percent identified as LGBTQ+ and 10 percent of those identified as transgender (Applied Survey Research, 2017, p. 13). 

While experiencing homelessness, LGBTQ+ youth face increased victimization and higher likelihood of being assaulted, raped, or robbed. Gendered or religious-based homelessness services further isolate LGBTQ+ youth experiencing homelessness, leading to higher rates of “survival crimes” like sex work, selling drugs, or petty thefts committed to pay for basic needs. These acts, as well as status offenses and discriminatory policing strategies push LGBTQ+ youth into contact with law enforcement.

Schools may also place LGBTQ+ students at high risk for contact with law enforcement. Studies show LGBTQ+ students are punished more severely for the same behaviors as their heterosexual and gender conforming counterparts. They are also suspended and expelled at disproportionately higher rates than their peers. Mistreatment from peers and school staff also plays a role. More than half of LGBTQ+ students hear homophobic remarks in their schools. Sixty percent reported not feeling safe at school because of their sexual orientation. Over 80 percent have experienced physical assault or harassment. LGBTQ+ youth are three times more likely to be injured or threatened with a weapon at school and twice as likely to report getting into a fight.

Studies further show that LGBTQ+ students face disciplinary action from schools because of their own victimization. Zero-tolerance policies punish LGBTQ+ youth for fighting back or being part of the altercation in which they were attacked. If these youth choose to skip school out of fear of bullying, they are punished for truancy. 

Youth Legal System
Once incarcerated, LGBTQ+ youth face disparate treatment within the youth legal system. Despite guidance from the Prison Rape Elimination Act (PREA) stating that transgender and intersex youth should be consulted in determining the best placement for their safety, transgender and gender nonconforming youth are often placed in facilities according to the sex on their birth certificate. Placing these youth in facilities that do not match their identities puts them at increased risk for violence, harassment, and assault. Due to these risks, LGBTQ+ youth are also more likely to be subject to solitary confinement or segregated units.

Placements that do not match gender identity decrease youth’s access to personal care products, medically necessary transition-related care, or gender-specific clothing.  In their 2017 report, Children’s Right, Lambda Legal, and the Center for the Study of Social Policy reviewed state laws and policies to examine whether they ensured fair treatment for LGBTQ+ youth in the youth legal system. The study uncovered large disparities in treatment between states and even between counties within the same state. The study found that 40 states lack youth legal system standards permitting youth to dress in accordance with their gender identity, and only 21 states and the District of Columbia have explicit sexual orientation and gender identity nondiscrimination protections in their youth legal system.  

1. Reduce homelessness among the LGBTQ+ youth.
Congress, in partnership with state and local governments, should expand access to public housing and affordable housing funds by removing barriers to formerly incarcerated. Congress and states should invest in public and affordable housing, and increase the number of units available. Congress should strengthen Runaway and Homeless Youth Act (RHYA) to explicitly protect LGBTQ+ homeless youth and prohibit grant recipients from discriminating against LGBTQ+ youth.

2. Vastly increase research and data collection. Increase federal funding for research and data collection surrounding LGBTQ+ youth, homelessness, and youth legal system contact. Implement data collection that includes data on gender identity and sexual orientation at all levels. 

3. Decriminalize LGBTQ+ youth. Decriminalizing homelessness and sex work would vastly reduce the number of LGBTQ+ youth in youth legal system custody. Federal, state, and local governments could follow the lead of innovative states in passing a Homeless Bill of Rights to create a baseline of rights for all people experiencing homelessness – including young people, people of color, and LGBTQ people. Provide a housing-first approach would provide a haven for LGBTQ+ youth committing survival crimes. Rather than criminalizing sex work, offer alternatives to criminal charges, such as substance abuse assistance, alternative justice methods, and restorative justice programs. 

4. End the school-to-prison pipeline. End zero-tolerance bullying policies that punish victims of sexual orientation and gender identity-based violence, expand explicit protections from bullying for gender identity and sexual orientation.

5. Improve care at youth legal system facilities. Enforce and expand protections in the Prison Rape Elimination Act. Allow LGBTQ+ youth to have a say in placement protocols in juvenile facilities, improve access to transition healthcare for incarcerated LGBTQ+ youth, and better training for facility staff on affirming LGBTQ+ issues.

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