Lesbian, Gay, Bisexual and Transgender Youth in the Juvenile Justice System

11 A GUIDE TO JUVENILE DETENTION REFORM Lesbian, Gay, Bisexual and Transgender Youth in the Juvenile Justice System Juvenile Detention Alternatives Initiative A PROJECT OF THE ANNIE E. CASEY FOUNDATION juvenile detention alternatives initiative This is the 11th in a series of practice guides published as part of JDAI, an initiative for juvenile justice reform of the Annie E. Casey Foundation. ACKNOWLEDGMENTS The Annie E. Casey Foundation is a private philanthropy that creates a brighter future for the nation’s children by developing solutions to strengthen families, build paths to economic opportunity and transform struggling communities into safer and healthier places to live, work and grow. For more information, visit www.aecf.org. ABOUT THE AUTHOR This practice guide was written by Shannan Wilber, youth policy director at the National Center for Lesbian Rights. © 2015 The Annie E. Casey Foundation contents 2 Lesbian, Gay, Bisexual and Transgender 14 SECTION IV Youth in the Juvenile Justice System Creating a Fair, Inclusive and Respectful Organizational Culture 3 SECTION 1 Introduction 24 SECTION V Detention Standards 6 SECTION II Understanding Sexual Orientation, 36 SECTION VI Gender Identity and Gender Expression Endnotes (SOGIE) 41 SECTION VII 9 SECTION III Appendix Profile of LGBT Youth in the Juvenile Justice System JUVENILE DETENTION ALTERNATIVES INITIATIVE LESBIAN, GAY, BISEXUAL AND TRANSGENDER YOUTH IN THE JUVENILE JUSTICE SYSTEM The Annie E. Casey Foundation has developed this practice guide to support Juvenile Detention Alternative Initiative (JDAI) sites in meeting their obligation to ensure the safety and well-being of lesbian, gay, bisexual and transgender (LGBT)* youth involved in the juvenile justice system. The guide covers a wide range of policies and practices – from broad organizational measures such as staff training and nondiscrimination policies, to specific practices such as talking with youth about sexual orientation and gender identity and making individualized classification and housing decisions. This guidance is critical because LGBT youth are at heightened risk of physical, sexual and emotional abuse, particularly in secure settings. In addition, LGBT youth represent up to 20 percent of detained youth – a far greater percentage than their share of the general population. Although the guide is chiefly aimed at promoting the health and well-being of LGBT youth, its recommendations will benefit all justice-involved youth by exposing and challenging bias, promoting mutual respect and increasing professionalism. The recommendations in the guide are also consistent with core JDAI strategies. * For the purposes of the practice guide, the acronym “LGBT” includes youth who identify as lesbian, gay, bisexual or transgender, youth who are questioning their sexuality or gender identity, youth who use some other word to describe their non-heterosexual, transgender or gender-nonconforming identities and youth whom others perceive as transgressing gender or sexual norms. Different acronyms are used in the guide to reflect the scope or application of specific research, laws or standards. For example, the portions of the guide that address the regulations implementing the Prison Rape Elimination Act use the acronym “LGBTI” because the act applies to intersex youth as well as LGBT youth. Similarly, the guide uses the acronym “LGB” to describe research findings that apply to sexual orientation and do not apply to gender identity. The acronym “SOGIE” stands for sexual orientation, gender identity and gender expression, which are distinct aspects of each person’s identity. 2 juvenile detention alternatives initiative the annie e. casey foundation/www.aecf.org Introduction I LGBT youth have always been present in the juvenile justice system, although many of them have concealed their identities to escape harassment and mistreatment. Until relatively recently, the juvenile justice profession has largely denied, ignored, or dismissed the significance of this reality and its implications for policy and practice. Historically, neither the law nor professional standards acknowledged or addressed the specific and substantial harm suffered by justice-involved LGBT youth. In this vacuum, misinformation and bias have long subjected LGBT youth to unfair and unlawful treatment, including identity-based criminalization, unwarranted and prolonged incarceration and verbal, physical and sexual abuse. Although these harmful and unjust practices persist in many jurisdictions, this guide builds on a sea change the field is undergoing. Prompted by broader societal changes and recent legal developments, the juvenile justice profession has turned its attention to the LGBT youth in its care and custody and has begun to change policies and practices to address their needs. These changes are taking place in the context of a dramatic shift in public attitudes toward LGBT people in this country. Even 20 years ago, most Americans knew very little about sexual orientation, gender identity or gender expression (SOGIE), and the majority would likely say that they knew few, if any, people who openly identified as LGBT. In the last generation, public opinion has moved from widespread condemnation to growing visibility and acceptance. This shift is particularly evident in the last decade and is reflected across many societal spheres. HEALTH: Until 1973, homosexuality was still listed as a mental disorder in the Diagnostic and Statistical Manual of Mental Disorders. 1 By 1997, the American Psychological Association (APA) issued a policy opposing “portrayals of lesbian, gay and bisexual youth and adults as mentally ill due to their sexual orientation.” 2 In 2008, the APA stated: “Despite the persistence of stereotypes that portray lesbian, gay and bisexual people as disturbed, several decades of research and clinical experience have led all mainstream medical and mental health organizations in this country to conclude that these orientations represent normal forms of human experience.” 3 LAW: Throughout the last century, numerous state laws criminalized consensual sex between gay adults. As recently as 1986, the Supreme Court upheld one such statute, supporting the state’s interference with private sexual activity based on the “presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable.” 4 This decision remained the law of the land until 2003, when the Supreme Court reversed course in Lawrence v. Texas, extending constitutional protection to private consensual conduct between adults.5 FAMILY: Before 2003, when the Massachusetts Supreme Court struck down a ban on same-sex marriage, no state extended the right to marry to gay and lesbian couples.6 Just 12 years later, the juvenile detention alternatives initiative the annie e. casey foundation/www.aecf.org 3 I U.S. Supreme Court ruled that no state can deprive an individual of the right to marry based on that person’s sexual orientation – effectively extending marriage equality to all 50 states. 7 MILITARY: As recently as 1981, the Department of Defense issued a directive stating that “homosexuality is incompatible with military service” and that “homosexual acts” would be grounds for mandatory discharge. 8 By 2010, the Department of Defense released a report concluding that allowing gays to openly serve in the armed forces would have a minimal negative impact on the military’s effectiveness. Shortly thereafter the policy was overturned, and since that time, lesbians and gay men have been serving openly in the military. 9 BUSINESS: In 2002, 61 percent of Fortune 500 companies included sexual orientation in their nondiscrimination policies, and just 3 percent included gender identity within those policies. By 2014 those number had risen to 91 percent and 61 percent, respectively. 10 ENTERTAINMENT: In 1998, Ellen DeGeneres’ show on ABC Family was canceled shortly after she publicly came out as a lesbian. Today she’s a household name and hosts her own nationally syndicated talk show daily. Meanwhile, shows that star LGBT characters, such as “Orange is the New Black,” “Transparent” and “Modern Family” are very popular with viewing audiences. Having grown up during this period of rapid cultural change, today’s children are aware of, and disclose, their LGBT identities in greater numbers and at younger ages. 11 While some of these young people thrive in supportive families, schools and communities, many more are not so fortunate. Our society’s continued failure to fully embrace and affirm LGBT youth is tragically reflected in the number of LGBT teen suicides in the United States. 12 Too often, acceptance lags behind visibility. Even formal legal equality, where it exists, cannot erase entrenched prejudice. As in other civil rights movements, progress is slow to reach the most disempowered and disadvantaged members of the LGBT community, including its youth. Meanwhile, social stigma, family rejection, and discrimination subject LGBT youth to increased risk of substance use, homelessness, school drop out or push-out, depression and suicidality. These risks are well-documented and devastating, driving disproportionate numbers of LGBT youth into the justice system. Recent research has shown that up to 20 percent of the youth confined in America’s juvenile detention facilities identify as LGBT, questioning or gender nonconforming, which is almost three times their estimated number in the general population. 13 Lesbian, gay and bisexual youth confined

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