CLC PRACTICE KIT 10 Overview of Law

Housing law is another area with limited federal protections for persons who identify as LGBTQ. The Fair Housing Act provides protections against discrimination in housing; however sexual identity is not a protected class. There are protections against gender and race discrimination which may be relevant for some clients also facing discrimination based on their LGBTQ identity.

The Department of Housing and Urban Development (HUD) regulations are included within this toolkit and are included in the form of their publication in the Federal Register because they effect a variety of programs over a wide spread area of the Code of Federal Regulations when codified. The document begins with a useful summary of the basis and rationale for the regulatory adoptions.

The District provides for specific protections in housing for individuals who identify as LGBTQ. The protections are embodied in the DC Human Rights Act, in Section one of this kit. Specifically the regulations regarding housing are codified at 4 DCMR 1000 et seq. The DCHRA protects prospective tenants from discrimination in seeking housing and from discrimination in their treatment and in the quiet enjoyment of their property once housing has been secured.

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DEPARTMENT OF HOUSING AND all.1 In the January 24, 2011, proposed sexual orientation or gender identity, in URBAN DEVELOPMENT rule, HUD noted that many state and the January 2011 rule, HUD proposed to local governments share the concern prohibit inquiries regarding sexual 24 CFR Parts 5, 200, 203, 236, 400, 570, over equal housing opportunity for orientation or gender identity. As 574, 882, 891, and 982 LGBT individuals and families. Twenty proposed, the prohibition precludes [Docket No. FR 5359–F–02] states, the District of Columbia, and over owners and operators of HUD-assisted 200 localities have enacted laws housing or housing whose financing is RIN 2501–AD49 prohibiting discrimination in housing insured by HUD from inquiring about on the basis of sexual orientation or the sexual orientation or gender identity Equal Access to Housing in HUD 2 gender identity. of an applicant for, or occupant of, the Programs Regardless of Sexual As the Nation’s housing agency, it is dwelling, whether renter- or owner- Orientation or Gender Identity important not only that HUD ensure that occupied. In the January 2011 rule, HUD its own programs do not involve AGENCY: Office of the Secretary, HUD. proposed to institute this policy in its ACTION: Final rule. arbitrary discrimination against any individual or family otherwise eligible rental assistance and homeownership programs, which include HUD’s Federal SUMMARY: Through this final rule, HUD for HUD-assisted or -insured housing, implements policy to ensure that its but that its policies and programs serve Housing Administration (FHA) core programs are open to all eligible as models for equal housing mortgage insurance programs, individuals and families regardless of opportunity. In July 2010, HUD issued community development programs, and 3 sexual orientation, gender identity, or guidance to assist LGBT individuals and public and assisted housing programs. marital status. This rule follows a families facing . While the January 2011 rule proposed to January 24, 2011, proposed rule, which (See http://portal.hud.gov/hudportal/ prohibit inquiries regarding sexual noted evidence suggesting that lesbian, HUD?src=/program_offices/ orientation or gender identity, nothing gay, bisexual, and transgender (LGBT) fair_housing_equal_opp/ in the rule proposed to prohibit any individuals and families are being LGBT_Housing_Discrimination.) In individual from voluntarily self- arbitrarily excluded from housing addition to the guidance, HUD initiated identifying his or her own sexual opportunities in the private sector. Such this rulemaking in January 2011 in an orientation or gender identity. information was of special concern to effort to ensure that HUD’s rental Additionally, the January 2011 rule did HUD, which, as the Nation’s housing housing and homeownership programs not propose to prohibit otherwise lawful agency, has the unique charge to remain open to all eligible persons inquiries of an applicant or occupant’s promote the federal goal of providing regardless of sexual orientation, gender sex where the housing involves the decent housing and a suitable living identity, or marital status. sharing of sleeping areas or bathrooms. environment for all. It is important not HUD’s January 24, 2011, rule This prohibition of inquiries regarding only that HUD ensure that its own proposed to amend 24 CFR 5.100 to sexual orientation or gender identity programs do not involve discrimination include definitions of ‘‘sexual was proposed to be provided in a new against any individual or family orientation’’ and ‘‘gender identity’’ paragraph (a)(2) to 24 CFR 5.105. otherwise eligible for HUD-assisted or among the definitions generally Additionally, the January 24, 2011, -insured housing, but that its policies applicable to HUD programs. Under the proposed rule clarified in the and programs serve as models for equal proposed rule, 24 CFR 5.100 would housing opportunity. define ‘‘sexual orientation’’ as regulations governing HUD’s housing programs that all otherwise eligible DATES: Effective Date: March 5, 2012. ‘‘homosexuality, heterosexuality, or bisexuality,’’ a definition that the Office families, regardless of sexual FOR FURTHER INFORMATION CONTACT: orientation, gender identity, or marital Kenneth J. Carroll, Director, Fair of Personnel Management (OPM) uses in the context of the federal workforce in status have the opportunity to Housing Assistance Program Division, participate in HUD programs. As noted Office of Fair Housing and Equal its publication ‘‘Addressing Sexual in the January 2011 proposed rule, the Opportunity, Department of Housing Orientation in Federal Civilian majority of HUD’s rental housing and and Urban Development, 451 7th Street Employment: A Guide to Employee homeownership programs already SW., Room 5206, Washington, DC Rights.’’ (See www.opm.gov/er/ interpret the term ‘‘family’’ broadly. The 20410–8000; telephone number (202) address.pdf at page 4.) The January 24, 708–2333 (this is not a toll-free 2011, rule proposed to define ‘‘gender proposed rule clarified that families, number). Persons with hearing or identity’’ as ‘‘actual or perceived who are otherwise eligible for HUD speech impairments may access this gender-related characteristics,’’ programs, may not be excluded because number through TTY by calling the toll- consistent with the definition of one or more members of the family may free Federal Relay Service at (800) 877– ‘‘gender identity’’ in the Matthew be LGBT or perceived to be LGBT. 8339. Shepard and James Byrd, Jr. Hate Finally, the rule proposed to revise 24 Crimes Prevention Act, Public Law 111– SUPPLEMENTARY INFORMATION: CFR 203.33(b), by adding sexual 84, Division E, Section 4707(c)(4) (18 orientation and gender identity to the I. Background—the January 24, 2011, U.S.C. 249(c)(4)). characteristics that an FHA lender may Proposed Rule To promote equal access to HUD’s housing programs without regard to not take into consideration in HUD published a proposed rule on determining the adequacy of a January 24, 2011 (76 FR 4194), which 1 This goal is rooted in section 2 of the Housing mortgagor’s income. Marital status is advised of evidence suggesting that Act of 1949, 42 U.S.C. 1441. already a prohibited consideration LGBT individuals and families do not 2 See, e.g., Laws Prohibiting Discrimination Based under the current version of 24 CFR have equal access to housing. Such on Sexual Orientation and Gender Identity, Institute 203.33(b). information concerned HUD because of Real Estate Management (IREM) Legislative Staff, July 2007, which is available at www.irem.org/pdfs/ HUD is charged with promoting the publicpolicy/Anti-discrimination.pdf; see also 3 Institution of this policy in HUD’s Native federal goal of providing decent housing http://www.hrc.org/files/assets/resources/ American programs will be undertaken by separate and a suitable living environment for Housing_Laws_and_Policies.pdf. rulemaking.

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II. Changes Made at the Final Rule ‘‘family’’ in 24 CFR 5.403, as revised by minority of the commenters opposed the Stage this rule. rule. There is one issue of significant Commenters supporting the rule In response to public comment and comment for which HUD is not making stated that it was long overdue and upon further consideration by HUD of a change at the final rule stage. This noted that HUD, as the Nation’s housing the issues presented in this rulemaking, pertains to development and agency, should lead the efforts to HUD makes the following changes at implementation of a national system prevent discrimination against LGBT this final rule stage: that reports the sexual orientation and persons in housing. The commenters • New § 5.105(a)(2) is revised to make gender identity of beneficiaries of HUD supportive of the rule all pointed to the explicit that eligibility determinations housing programs, to allow HUD to importance of equal housing for HUD-assisted or -insured housing better understand the extent to which opportunity for LGBT persons. must be made without regard to actual HUD programs are serving LGBT Commenters opposing the rule stated or perceived sexual orientation, gender persons. HUD is not making the that of the many important topics that identity, or marital status. Also, new requested change to the rule because should be addressed in the housing § 5.105(a)(2) is revised by dividing this HUD needs more time to consider the area, this is not one of them. One paragraph into two sections. Section feasibility of such a system and the commenter viewed the rule as excessive 5.105(a)(2)(i) will affirmatively state that issues it raises; foremost among them government regulation. Other housing assisted or insured by HUD being maintaining the privacy rights of commenters opined that the rule will must be made available without regard the individual who would be the subject cause owners of multifamily housing to to actual or perceived sexual of such reporting. However, in response decline to participate in the Housing orientation, gender identity, or marital to comments highlighting the beneficial Choice Voucher program. A minority of status. New § 5.105(a)(2)(ii) includes the uses of data on LGBT individuals commenters opposing the rule prohibition of inquiries regarding sexual seeking assistance under HUD expressed concern that HUD’s proposal orientation or gender identity for the programs, and in deference to other will create an unsuitable housing purpose of determining eligibility or government agencies that do collect environment. otherwise making housing available and such data, HUD is clarifying that the In proceeding with this final rule, further allows inquiries related to an prohibition on inquiries is not intended HUD expresses its disagreement with applicant or occupant’s sex for the to prohibit mechanisms that allow for the commenters opposing the rule. HUD limited purpose of determining voluntary and anonymous reporting of believes that the concerns they have placement in temporary, emergency sexual orientation or gender identity voiced will not be realized in practice. shelters with shared bedrooms or solely for compliance with data bathrooms, or for determining the B. Significant Public Comments and collection requirements of state or local HUD’s Responses number of bedrooms to which a governments or other federal assistance household may be entitled. programs. This section presents significant • The term ‘‘family’’ in § 5.403 is With respect to permissible inquiries issues raised by commenters and HUD’s slightly reorganized in the opening as to sex where the accommodations responses to these comments. clause to read as follows: ‘‘Family provided to an individual involve Terminology Changes includes but is not limited to the shared sleeping or bathing areas, HUD following, regardless of actual or clarifies that the lawful inquiries as to Several commenters recommended perceived sexual orientation, gender sex would be permitted primarily for some changes to the terms proposed to identity, or marital status * * *.’’ This emergency shelters and like facilities. be included in 24 CFR part 5, including reorganization makes explicit that This temporary housing, unlike other for ‘‘family,’’ ‘‘gender identity,’’ and perceived, as well as actual, sexual HUD and unlike ‘‘sexual orientation.’’ Commenters also orientation, gender identity, and marital housing insured by the FHA, involves proposed adding definitions of ‘‘child,’’ status cannot be factors for determining no application process to obtain ‘‘marital status,’’ and ‘‘sex.’’ eligibility for HUD-assisted housing or housing, but rather involves immediate Family. For the convenience of the FHA-insured housing. provision of temporary, short-term reader and the discussion to follow, the term ‘‘family’’ proposed to be included • The term ‘‘family’’ in 24 CFR 574.3 shelter for homeless individuals. in 24 CFR 5.403 is restated below: of the program regulations for the III. Public Comments Submitted on Family includes, but is not limited to, Housing Opportunities for Persons With Proposed Rule and HUD’s Responses regardless of marital status, actual or AIDS (HOPWA) program is slightly A. Overview of Public Comments perceived sexual orientation, or gender revised to reinsert a clause in the identity, the following: definition of ‘‘family’’ in the codified The public comment period for the (1) A single person, who may be an HOPWA regulations that was proposed rule closed on March 25, elderly person, displaced person, inadvertently omitted at the proposed 2011. At the close of the public disabled person, near-elderly person, or rule stage. As stated below in the comment period, approximately 376 any other single person; or discussion of public comments, the public comments were received from a (2) A group of persons residing insertion of this clause serves to variety of commenters, including together, and such group includes, but combine the original meaning of individuals, advocacy groups, legal aid is not limited to: ‘‘family’’ as provided in the HOPWA offices, tenant and fair housing (a) A family with or without children regulations with the meaning given the organizations, realtors and their (a child who is temporarily away from term ‘‘family’’ in 24 CFR 5.403, as representatives, law school clinics, the home because of placement in foster revised by this rule. authorities, local care is considered a member of the • The regulations for HUD’s Section government officials, and members of family); 202 Supportive Housing for the Elderly Congress. The overwhelming majority of (b) An elderly family; and Section 811 Supportive Housing for comments were supportive of the rule. (c) A near-elderly family; Persons with Disabilities programs are Some commenters, while supporting the (d) A disabled family; revised to provide a cross-reference to rule, suggested modifications, and a (e) A displaced family; and

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(f) The remaining member of a tenant stated that HOPWA regulations are Comment: A commenter asked family. intended to ensure that AIDS patients whether a family can be one individual. Comment: One commenter proposed can structure their living situations Response: Yes, in accordance with expanding the definition of ‘‘family’’ to broadly, according to their health needs. section 3(b)(3)(A) of the U.S. Housing include any person or persons, Response: At this final rule stage, Act of 1937, HUD’s longstanding regardless of their sex or relationship to HUD makes a slight change to the definition of ‘‘family’’ has always one another, with the only restriction definition of the term ‘‘family’’ in 24 included a single person. being to allow at least one, but no more CFR 574.3, the definition section of the Comment: A commenter stated that than two, persons per bedroom. HOPWA program regulations, to reinsert the term ‘‘family’’ as provided in 24 CFR Response: HUD believes the term in the definition of ‘‘family’’ the clause 5.403 of the proposed rule fails to give ‘‘family,’’ as presented in 24 CFR 5.403, ‘‘who are determined to be important to a ‘‘definite meaning to family’’ and addresses the concern of the their care or well-being.’’ This clause leaves the door open for program abuse commenter. With respect to bedroom was inadvertently omitted in the by allowing any group that wants to live size, the existing occupancy proposed rule. Through insertion of this together to call itself a family. Another requirements of HUD’s public and clause, the final rule combines the commenter stated that the proposed assisted housing programs already definition of family in the proposed 24 regulation, with its expansion of the address the number of persons who may CFR 5.403 with the other elements of term ‘‘family,’’ could potentially allow occupy one bedroom. the original term ‘‘family’’ in 24 CFR any combination of persons to qualify as Comment: Other commenters 574.3. a family without the requirement of a suggested that it is important that the Comment: Commenters stated that the legally recognized relationship. Another term ‘‘family’’ in HUD’s rule prevent definition for disabled households may commenter stated that the term ‘‘family’’ from exclusion family members who be read to exclude same-sex couples. as proposed in the January 2011 rule may identify as LGBT individuals or They suggested that HUD amend the will make it impossible for the PHA to who have LGBT relationships, or who determine the family composition, the definition of disabled households to add may be perceived as such. family income, or who is on the lease, an additional cross-reference to the term Response: HUD submits that the term as families could change on a weekly ‘‘family’’ in 24 CFR 5.403 to capture ‘‘family,’’ as provided in 24 CFR 5.403, basis. The commenter submitted that ‘‘regardless of marital status, sexual and as proposed to be slightly revised the proposed change will take away the orientation, or gender identity.’’ by this final rule, prevents such security and stability of the family, as arbitrary exclusion. Response: HUD’s regulations for the well as the PHA’s power to determine Comment: Commenters suggested that Section 202 Supportive Housing for the if a tenant is suitable or whether the the rule include in 24 CFR 982.201(c), Elderly and Section 811 Supportive tenant’s behavior would have an a Public and Indian Housing program Housing for Persons with Disabilities adverse effect on other residents. regulation permitting public housing programs, codified in 24 CFR part 891, Response: As discussed in this agencies (PHAs) to determine who include broad definitions of ‘‘elderly rulemaking, in both the proposed and qualifies as a family, an explicit family’’ and ‘‘disabled household.’’ final rules, ‘‘family’’ in HUD programs statement that PHAs do not have Nevertheless, similar to the approach had broad meaning long before these discretion to define family groupings in that HUD took with the HOPWA regulatory amendments. By way of this a way that excludes LGBT persons, and definition of the term ‘‘family,’’ HUD is rule, HUD is merely affirming that an that a PHA’s discretion cannot conflict adding to the regulations in 24 CFR part eligible family may not be excluded with 24 CFR 5.403. To accomplish this, 891 a cross-reference to the term because of actual or perceived sexual a commenter recommended adding to ‘‘family’’ in 24 CFR 5.403. The cross- orientation, gender identity, or marital 24 CFR 982.201(c) the phrase reference to ‘‘family’’ in 24 CFR 5.403 status. This rule’s clarification of the ‘‘regardless of marital status, sexual will supplement the meanings already term ‘‘family’’ has no impact on other orientation, or gender identity.’’ provided to ‘‘family’’ in 24 CFR part program eligibility requirements, such Response: HUD maintains that 891. as income qualification, annual amendment of 24 CFR 982.201(c) is not Comment: Commenters suggested that certification, or the requirement that all required. The rule already proposes an the term ‘‘family’’ could be made more family members are named on the amendment to 24 CFR 982.4 requiring inclusive by moving the phrase ‘‘actual household lease. The rule in no way that PHA determinations regarding or perceived’’ to explicitly include precludes a PHA from consistently family be consistent with 24 CFR 5.403. marital status, and clarifying who applying its otherwise lawful policies to PHAs submit administrative plans to qualifies as a ‘‘child,’’ as many LGBT a family consisting of LGBT members, HUD. These administrative plans must parents lack the ability to create legal just as it would a family with no LGBT include family definitions that are at relationships with their children. members. least as inclusive as HUD’s definition. Response: In response to the Gender Identity. For the convenience This requirement has generally proven commenters’ concern and as noted in of the reader and the discussion to an effective means of ensuring Section II of this preamble, the final rule follow, the term ‘‘gender identity’’ in compliance with HUD eligibility restates the term ‘‘family’’ to provide in proposed 24 CFR 5.403 is restated requirements for beneficiaries of its relevant part, as follows: ‘‘Family below: public housing programs. If this includes but is not limited to the Gender identity means actual or approach is not effective following following, regardless of actual or perceived gender-related characteristics. implementation of this rule, HUD will perceived sexual orientation, gender Comment: One commenter stated that revisit the issue. identity, or marital status * * *.’’ the term ‘‘gender-related Comment: A commenter requested However, with respect to the second characteristics’’ is ambiguous and that that HUD ensure that the term ‘‘family’’ request, who qualifies as a child has not this ambiguity could result in as presented in 24 CFR 5.403 not have arisen as an issue in determining discriminatory application of the rule. an adverse impact on Housing eligibility for housing. Accordingly, The commenter called for a more Opportunities for Persons With AIDS HUD will not add a definition of precise definition for ‘‘gender identity,’’ (HOPWA) recipients. The commenter ‘‘child’’ to the final rule. but did not offer suggested language.

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Another commenter was concerned that individuals from targeted violence. considered in light of transgender it would be very difficult to predict how Passage of the law resulted from the individuals. One of the commenters the term ‘‘gender identity,’’ as defined ongoing efforts of individuals personally stated that the term sexual orientation in the statute, would actually be impacted by hate crime violence, should specifically include transgender applied. Another commenter expressed together with nearly 300 civil rights and individuals, due to uncertainty about similar concern that the rule does not religious organizations, education whether general ‘‘sexual orientation’’ address how ‘‘actual or perceived groups, and civic associations language would protect such gender-related characteristics’’ would be committed to gaining legal protections individuals and in light of the historical interpreted in a given case, and for members of the LGBT community. In treatment of such individuals. recommended incorporation of an addition, the bill received support from Another commenter stated that the express reasonableness standard. The many major law enforcement rule should broaden protections for commenter stated that a reasonableness organizations, including the ‘‘sexual orientation’’ to include persons standard ‘‘will require claimants to meet International Association of Chiefs of who self-identify as heterosexuals but a strenuous standard for relief, without Police, the National District Attorneys who have histories of same-sex placing them in the dubious position of Association, the National Sheriffs relationships. Such histories could be having to produce proof that is most Association, the Police Executive an issue in small communities, in readily available to potential Research Forum, and 31 state Attorneys particular. The commenter states that defendants.’’ General. Congress considered the issue protection for persons who identify as A commenter suggested replacing the over multiple sessions through public bisexuals would not be sufficient to term ‘‘gender identity’’ with the more hearings, reports, and floor debates. The cover this situation. comprehensive ‘‘gender identity or purpose of HUD’s rule, as with the Hate Response: As with commenters’ expression.’’ Another commenter also Crimes Prevention Act, is to provide suggested revisions to the definition of stated that the definition of ‘‘gender greater protection for LGBT persons. ‘‘gender identity,’’ HUD appreciates the identity’’ should include gender-related Accordingly, HUD believes it suggested revisions to the definition of expression, to better protect transgender appropriate to use the same definition of ‘‘sexual orientation’’ offered by individuals from discrimination. ‘‘gender identity’’ as applies in the Hate commenters, but for the same reasons as Another commenter stated that Crimes Prevention Act. HUD seeks to provided in the preceding response, ‘‘without more, ‘actual or perceived experience how this term works in its HUD declines to make changes at this gender-related characteristics’ could be programs before determining what, if final rule stage. The definition of interpreted to be limited to those any, changes are needed for its effective ‘‘sexual orientation,’’ which HUD characteristics traditionally associated application in the housing context. provided in the proposed rule, is based with the individual’s sex at birth.’’ The Commenters should note, however, that in federal policy—the Office of commenter further stated, ‘‘To pre-empt since the definition is intended to cover Personnel Management (OPM) any suggestion that HUD condones this actual or perceived gender-related ‘‘Addressing Sexual Orientation in view,’’ HUD should amend the language characteristics of all persons, including to read: ‘‘Gender identity means actual Federal Civilian Employment: A Guide transgender persons, HUD will interpret to Employee Rights.’’ (See http:// or perceived gender related it to include those gender-related characteristics, whether or not those www.opm.gov/er/address.pdf at page 4.) characteristics not stereotypically The purpose of the OPM publication is characteristics are stereotypically associated with a person’s designated to implement the Federal Government’s associated with the person’s designated sex at birth. commitment to equal employment sex at birth.’’ This commenter stated Sexual Orientation. For the that the definition mirrors language convenience of the reader and the opportunity for LGBT individuals in the currently adopted by a number of states discussion to follow, the term ‘‘sexual federal civil service. The OPM and municipalities. Another commenter orientation’’ in proposed 24 CFR 5.403 publication serves a goal analogous to endorsed the definition suggested by the is restated below: the one served by HUD’s proposed rule, preceding commenter. Sexual orientation means and, as with the definition of ‘‘gender Response: HUD appreciates the homosexuality, heterosexuality, or identity,’’ HUD seeks to experience how suggested revisions to the definition of bisexuality. this term will work in practice before ‘‘gender identity’’ offered by the Comment: A commenter claimed that making changes to a definition currently commenters, and will consider these defining sexual orientation as established in federal policy. suggested revisions further. However, ‘‘homosexuality, heterosexuality, or HUD notes that its rule covers actual HUD declines to make changes to this bisexuality’’ alone excludes many or perceived sexual orientation, as well term at this final rule stage. The number people. Another commenter stated that as gender identity. As such, the rule of suggested revisions to the definition HUD should ‘‘broaden the definition of covers most of the situations presented highlights the differing views among the ‘‘sexual orientation’’ to ‘‘homosexuality, by the commenters, such as identifying commenters regarding the meaning of heterosexuality, bisexuality, or sexuality as transgender; being perceived as this term. Given this, HUD believes that as defined by the individual’’ [emphasis transgender, multi-gendered, or between any changes to the definition should be added by commenter]. genders; or having a history of same-sex the subject of further public comment Other commenters stated that HUD relationships. No one definition in the before HUD submits the term as the could add the word ‘‘including’’ prior to rule need cover every situation. established definition under which the list in the proposed definition of Marital Status. HUD programs will operate. The ‘‘sexual orientation’’ to clarify that the Comment: One commenter definition of ‘‘gender identity’’ that is list is not exhaustive. The commenters recommended adding a definition of being established by this rule is based stated that, as written, the definition ‘‘marital status’’ that would define this on the definition of ‘‘gender identity’’ in ‘‘excludes transgender individuals who term as ‘‘the state of being unmarried, the Matthew Shepard and James Byrd, self-identify as multi-gendered or married, or separated, as defined by Jr. Hate Crimes Prevention Act, 18 between genders.’’ Still other applicable state law. The term U.S.C. 249(c)(4). This federal statute was commenters stated that the fluidity of ‘unmarried’ includes persons who are enacted in 2009 to protect LGBT the term sexual orientation must be single, divorced, or widowed.’’

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Response: The term ‘‘marital status’’ determining an individual’s adequacy additional program requirements do not, is not currently defined in HUD for a mortgage and would (2) provide however, create additional protected regulations and HUD does not find that greater protection to LGBT individuals classes in existing civil rights laws such the focus of this rule calls for a from housing discrimination.’’ as the federal Fair Housing Act. The Fair definition of ‘‘marital status.’’ Other commenters agreed, stating that Housing Act prohibits discrimination Sex. the rule could provide stronger based on race, color, national origin, Comment: One commenter stated that protection by completely prohibiting religion, sex, disability, and familial to foreclose the possibility of using the ‘‘discrimination based on sexual status. Sexual orientation and gender allowed inquiry into sex in 24 CFR orientation or gender identity toward identity are not identified as protected 5.105(a)(2) against transgender occupants of or applicants for HUD- classes in the Fair Housing Act. As individuals, the rule should either: (a) assisted housing (or housing with discussed in the following section, Define ‘‘sex’’ broadly as ‘‘the state of financing insured by HUD),’’ rather than however, the Fair Housing Act’s being or becoming male or female or by prohibiting certain inquiries. The prohibition of discrimination on the transsexual;’’ or (b) substitute the more commenters stated that there are ways basis of sex prohibits discrimination inclusive term ‘‘gender’’ for ‘‘sex,’’ and other than direct inquiry that LGBT against LGBT persons in certain define ‘‘gender’’ as ‘‘sex, including a individuals could be identified or circumstances, such as those involving person’s gender identity and gender- discriminated against. nonconformity with gender stereotypes. related appearance and behavior Still other commenters expressed whether or not stereotypically concern that people who are gender- Interpret Sex Discrimination Under the associated with the person’s assigned nonconforming may be perceived as gay Fair Housing Act To Reach sex at birth.’’ or lesbian without any inquiry into their Discrimination and Harassment of LGBT Response: HUD declines to define sexual orientation and that most Persons ‘‘sex’’ or to substitute ‘‘gender identity’’ discrimination against LGBT persons A commenter stated that proposed 24 for ‘‘sex’’ in HUD programs. HUD occurs not because a person answered CFR 5.403, prohibiting inquiries of recognizes the difficulty that an inquiry about sexual orientation or ‘‘actual or perceived sexual transgender persons have faced in gender identity, but because of orientation,’’ could be revised to finding adequate emergency shelter. assumptions about a person’s gender prohibit inquiries of ‘‘actual or HUD does not, however, believe that it identity or sexual orientation. Those perceived sex.’’ The commenter stated is necessary to define ‘‘sex’’ as the commenters proposed adding language that sex is already a protected class commenter suggests. The rule makes that clearly prevents discrimination on under the Civil Rights Act of 1964 and clear that housing must be available the basis of real or perceived sexual could be used to reach discrimination without regard to actual or perceived orientation or gender identity. against LGBT persons. gender identity and prohibits inquiries One commenter suggested that Response: HUD declines to revise the concerning such. Inquiries as to sex are proposed 24 CFR 5.105(a) be revised to proposed rule to prohibit inquiries of permitted only when determining cite 18 U.S.C. 249, the Hate Crimes sex, but notes that certain complaints eligibility for a temporary, emergency Prevention Act, ‘‘for the inference that from LGBT persons would be covered shelter that is limited to one sex because Congress intends to discourage animus by the Fair Housing Act. If an LGBT it has shared sleeping areas and/or against others based on their sexual person experiences any of the forms of bathrooms, or to determine the number orientation, and therefore HUD will discrimination enumerated in the Fair of bedrooms to which a household may similarly disallow animus against others Housing Act, such as race or sex be entitled. Such inquiries are not based on their sexual orientation.’’ discrimination, that person can invoke permitted in any other homeless shelter Another commenter also referenced the the protections of the Fair Housing Act or housing. In light of the narrow Hate Crimes Prevention Act, stating that to remedy that discrimination. breadth of the exception and the HUD’s rule falls short of the goals of that Discrimination based on sex under the regulation’s overall purpose, HUD Act. The commenter stated that a rule Fair Housing Act includes anticipates that transgender individuals prohibiting inquiries will have little discrimination because of will have greater access to shelters and effect on those who discriminate based nonconformity with gender stereotypes. other housing and will monitor its on their unverified perceptions. For example, if a PHA denies a voucher programs so as to ascertain whether Response: HUD believes that the to a person because the person does not additional guidance may be necessary. revision made to § 5.105(a)(2), as conform to gender stereotypes, that person may file a Fair Housing Act Rule Should More Directly Prohibit discussed in Section II of this preamble, addresses the commenters’ concern. complaint with HUD alleging sex Discrimination discrimination. Several commenters requested that Interpret the Fair Housing Act To Cover HUD may also have jurisdiction to HUD more directly prohibit Discrimination Based on Sexual process a complaint filed under the Fair discrimination. One commenter stated Orientation or Gender Identity Housing Act if an LGBT person obtains that ‘‘a different section of the proposed One commenter suggested that HUD housing but then experiences regulation completely prohibits a interpret ‘‘discriminatory practice’’ in discrimination in the form of sexual mortgagee from taking into account the the Fair Housing Act to include harassment. Sexual harassment is illegal sexual orientation or gender identity of discrimination against persons on the under the Fair Housing Act if the an individual in determining whether to basis of sexual orientation or gender conduct is motivated by sex and is provide a mortgage to that person. identity. either so severe or pervasive that it Amending the proposed regulation to Response: In order to ensure equal creates a hostile environment or the completely ban housing discrimination access for all eligible families to HUD provision of housing or its benefits is towards individuals based on their programs, this rule requires that conditioned on the receipt of sexual sexual orientation or gender identity eligibility determinations for HUD- favors (for example, as a quid pro quo). * * * would (1) be more consistent assisted or -insured housing be made Harassment may be motivated by sex if, with the complete prohibition on using without regard to sexual orientation, for example, it is due to the landlord’s sexual orientation or gender identity in gender identity, or marital status. These view that the tenant’s appearance or

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mannerisms fail to conform with Prohibition on Inquiries Lawful Inquiries of Sex stereotypical expectations of how a man Several commenters requested or woman should look or act. Housing Several commenters suggested changes to the prohibition on inquiries clarification of the rule’s lawful inquiry owners or operators may be liable for provision or expressed concern that the their own actions or the actions of their in proposed 24 CFR 5.105(a)(2). The proposed rule provided as follows: provision would allow for employees or other residents. discrimination. The lawful inquiry If HUD determines that it does not No owner or administrator of HUD-assisted provision provided by the proposed rule have jurisdiction to investigate a or HUD-insured housing, approved lender in stated as follows: complaint from an LGBT person, the an FHA mortgage insurance program, nor any (or any other) recipient or subrecipient of [The] prohibition on inquiries regarding person may still be protected under sexual orientation or gender identity does not state and local laws that include sexual HUD funds may inquire about the sexual orientation, or gender identity of an applicant prohibit lawful inquiries of an applicant or orientation or gender identity as for, or occupant of, a HUD-assisted dwelling occupant’s sex where the housing provided or to be provided to the individual involves protected classes. or a dwelling whose financing is insured by the sharing of sleeping areas or bathrooms. Expand the Rule’s Protection To Cover HUD, whether renter- or owner-occupied. Discrimination Beyond Refusal To Rent This prohibition on inquiries regarding Comment: A commenter stated that sexual orientation or gender identity does not the lawful inquiry exception for the A commenter recommended prohibit any individual from voluntarily self- sharing of sleeping areas or bathrooms expanding the proposed rule to prohibit identifying the individual’s sexual may exacerbate extant stereotypes about harassment and disparate treatment on orientation or gender identity. gays and lesbians living in close the basis of sexual orientation or gender quarters with heterosexuals. The Comment: A commenter stated that identity. The commenter explained that commenter stated that numerous the prohibition on inquiries may in order for the proposed rule to scenarios come to mind where landlords discourage open dialogue when maximize its effectiveness, owners and abuse this exception to refuse to rent to determining appropriate placement of operators of HUD-assisted housing or homosexuals, purportedly because families applying for HUD programs. housing whose financing is insured by heterosexuals feel uncomfortable Inquiries regarding sexual orientation or HUD should be precluded from negative ‘‘sharing bathrooms or living space’’ gender identity may be appropriate decisionmaking based on these with homosexuals. The only legitimate where the safety of the individual or protected categories. HUD should be purpose of such an exception, the family being placed is of concern. There clear about its power to enforce commenter stated, would be in single- also may be other nondiscriminatory nondiscrimination and the remedies sex housing situations. But even there, reasons for a person responsible for available to individuals who have been the commenter stated, the inquiry is program placement to inquire about an discriminated against. ‘‘entirely irrelevant and inappropriate’’ individual’s sexual orientation or as to transgender status, because the Another commenter suggested that gender identity. This commenter states person would have already acquired a the prohibition on inquiries be that ‘‘the language [should] be changed strengthened so that no information new gender. to simply include ‘actual and perceived A commenter stated that the about a person’s sexual orientation or sexual orientation and gender identity’ gender identity can be used to deny a assumption that one person’s sexual in the section for nondiscrimination; or orientation might disturb the rights of tenancy, harass a tenant, evict a tenant, that the prohibition on inquiries [should or terminate a voucher. another person in a setting where be] limited to discriminatory purposes.’’ bathrooms and bedrooms would be Yet other commenters recognized the Response: Revised § 5.105(a)(2) shared reinforces stereotypes and biases, intent behind prohibiting inquiries addresses the commenters’ rather than countering them. Another regarding sexual orientation or gender nondiscrimination concerns. In commenter made a similar comment, identity, but submitted that the addition, the prohibition on inquiries stating that the proposal continues to prohibition will not adequately protect regarding sexual orientation or gender promote negative stereotypes and LGBT persons from harassment in identity does not prevent individuals violence against LGBT persons. A housing, as much housing from volunteering to identify their commenter speculated that while such discrimination occurs when a housing sexual orientation or gender identity. language was placed in the proposal provider infers a person’s sexual They may choose to do so to address with the intention of ensuring that other orientation or gender identity based on any safety concerns or for other tenants remain comfortable and safe, stereotypes, appearances, mannerisms, placement-related issues, for example. there are several issues with that goal, or information from a third party. The Also, the commenter’s concern is one the first of which is whether ‘‘leaving so commenters urged HUD to adopt a final that prompted HUD to include in the much up to the discretion of the rule that prohibits discrimination based proposed rule its language on the landlord will lead to greater potential on sexual orientation and gender permissibility of lawful inquiries as to risk of danger for these tenants.’’ identity in all HUD-assisted and HUD- sex, which is discussed below. Another commenter stated that this insured housing. However, as noted in the discussion of provision creates numerous problems in Response: HUD believes the revision Section II of this preamble, and application. The commenter states that made to § 5.105(a)(2), as discussed in addressed in revised § 5.105(a)(2), the asking someone who identifies with the Section II of this preamble, addresses inquiries permissible in determining so-called ‘‘opposite’’ gender to identify the commenters’ concern. In order to program eligibility are contemplated their sex implies that their identification ensure equal access for all eligible generally only where temporary, is not ‘‘real’’ or ‘‘genuine,’’ and that families to HUD programs, § 5.105(a)(2) emergency shelter is provided to reinforces the very problems the requires that eligibility determinations homeless individuals that involves the regulation seeks to resolve. This for HUD-assisted or -insured housing be sharing of sleeping areas or bathrooms, commenter stated that as with sexual made without regard to sexual or for a determination of the number of orientation, it is difficult to imagine orientation, gender identity, or marital bedrooms to which a household may be how one’s gender identity, even in a status. entitled. shared situation, would be a problem for

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any other person, as few programs rule is not unrestricted. As provided in Comment: Several commenters require individuals to share bedrooms this final rule, HUD believes it is expressed concern that inquiries as to a with strangers. appropriate to make inquiries as to sex person’s ‘‘sex’’ in situations involving Another commenter also expressed in temporary, emergency shelters that shared sleeping areas and bathrooms is concern about the practical effect of have shared bedrooms or bathrooms. not sufficiently clear to guard against allowing inquiries into the applicant’s This housing, unlike other HUD discrimination based on gender identity or occupant’s sexual orientation or subsidized housing and housing insured and asked HUD to provide further gender identity. The commenter stated by FHA, necessitates immediate guidance. One commenter stated that that it is not clear from the proposed provision of temporary shelter for this exception for lawful inquiries rule whether this language provides an homeless individuals. ‘‘leaves landlords with significant exhaustive or merely illustrative list of Comment: Another commenter discretion to deny housing on scenarios under which it is appropriate expressed concern that the proposed illegitimate grounds.’’ This same to inquire about an individual’s gender. prohibition on inquiries concerning commenter stated that HUD ‘‘should The commenter claimed that if the gender identity may adversely affect the add language to more clearly confine language is merely illustrative, a assignment of households to this exception to its legitimate ends.’’ housing provider will likely be appropriately sized housing. The Another commenter requested that HUD authorized to make broad inquiries into commenter explained that many local clarify what type of inquiries are an applicant’s gender identity when any programs determine housing size in part acceptable and in what specific shared living space is anticipated. A based on the gender of household circumstances, so as not to allow this commenter stated that this ‘‘lawful members, because household members exception to become a pretext for inquiry’’ into sex could be used to of different genders other than spouses discrimination based on gender identity. indirectly reach gender identity, for are not required to share a bedroom. Several commenters stated that the instance in the case of a transgender According to the commenter, sponsors allowed inquiry into sex provided could individual, and this allowed inquiry may assign households to housing that be used to identify and target could be used to accomplish the kind of is too small or too large based on transgender individuals, in particular, discrimination the rule is meant to members’ genders, consuming because the term ‘‘sex’’ used in the rule prevent. Another commenter expressed unnecessary housing assistance is vague and because the ‘‘lawful concern about the impact unrestricted resources. A commenter suggested that inquiries’’ exception is too broadly inquiries would have on low-income HUD clarify the existing exception or defined, leaving landlords ‘‘significant transgender people who cannot afford to add another exception to the blanket discretion to deny housing on access legal gender change petitions. prohibition against inquiries to permit illegitimate grounds.’’ Some of these Response: The allowance of lawful the assignment of households to commenters thought the exception inquiries of sex for housing that properly sized housing. should be more narrowly defined. provides shared bathrooms or sleeping Response: With the clarification One commenter stated that the arrangements is not a license to exclude provided in this final rule that HUD proposed rule does not provide LGBT persons from HUD-assisted intended to allow lawful inquiries to a sufficient guidance to clarify for housing housing. HUD programs must be open limited sector of HUD-assisted providers the limits of permissible and available to persons regardless of programs, HUD does not believe the inquiry into the applicant’s sex, thus sexual orientation or gender identity. commenter’s concerns will be realized. placing housing administrators in the The allowance of the limited inquiry of Comment: A commenter expressed position of arbiter of the transgender sex provided in the proposed rule is concern about the lawful inquiries individual’s sex for the purpose of their intended to apply primarily in provision in the rule because the housing applications, and exposing emergency shelters for homeless commenter believed the provision transgender persons to harm and persons, to ensure privacy if the shelter would allow housing providers to discrimination because of varying consists of shared sleeping or bathing inquire about someone’s human interpretations. Another commenter areas. HUD addressed the harassment immunodeficiency virus/acquired similarly stated that ‘‘the exception for issue earlier in this preamble. immune deficiency syndrome (HIV/ inquiries about sex for determining Comment: A commenter noted that AIDS) status, and explained that gay eligibility for single sex-dormitories or HUD had not proposed a definition of men are often discriminated against housing with single-sex shared- what is meant by the term ‘‘housing when they are considered to have HIV/ bathrooms might create opportunities provided * * * to the individual (that) AIDS. for discrimination against transgender involves the sharing of sleeping areas or Response: Nothing in the lawful persons.’’ The commenter asked HUD bathrooms.’’ The commenter stated that inquiries provision of this rule and no ‘‘to establish strict limitations on when ‘‘[t]here was presumably no intention to provision in HUD’s existing regulations these questions are appropriate.’’ permit inquiry of any person applying for its housing programs allows a A commenter stated that opponents of to any development that had bathrooms housing provider to inquire about the rule will likely focus on the ‘‘niche in common space. Additionally, by not someone’s HIV status, except where issue of the placement of transgender providing that the ‘‘sharing’’ reference providing HIV/AIDS-related housing individuals (or those that are pretending applies only to persons who are not part assistance and supportive services (e.g. to be transgender) in single sex of the same household,’’ it would open activities under the HOPWA program facilities.’’ The commenter stated that the door to inquiries of all applicants for (24 CFR part 574)), and subject to HUD, in the interest of addressing these all housing that permits households of confidentiality requirements. Moreover, critics and for clarity overall, ‘‘should more than one individual. the federal Fair Housing Act, which fully analyze this question instead of Response: HUD believes that revised HUD enforces and administers, merely stating that the rule is ‘not § 5.105(a)(2), in this final rule, expressly prohibits discrimination against intended to prohibit otherwise lawful provides that LGBT status cannot be a someone who has or is regarded as inquiries’’’ of sex, which is vague. The basis for denying participation in a having a disability, including HIV/ commenter asked, as an example, ‘‘[c]an program funded or insured by HUD. AIDS. (See 42 U.S.C. 3602(h)(3) and a battered women’s shelter still receive Moreover, the inquiry permitted by the 3604(f)(1).) funding from HUD if it denies shelter to

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a man, who perceives himself to be a persons may change their sex would 50059 is used to determine the number woman? What would be the lead to a considerable lack of uniformity of bedrooms a family may need, based adjudicatory process in such an event? across HUD programs. The commenter on the age and sex of the children. The Is this event a realistic scenario? HUD further stated that transgender persons commenter submitted that requiring should further analyze issues such as may be arbitrarily excluded from HUD information on sex to be reported on these both to undercut critics’ programs if they are forced to report Form 50059 conflicts with the proposed arguments that the proposed rule would their sex as defined by their state rule prohibiting inquiries about sex, and be unworkable and to better guide its government, instead of being permitted suggested that individuals should self- local program coordinators in proper to report a gender identity that more identify their gender and sex. practices. The overarching goal of this accurately describes them. Several Response: HUD will further examine proposed rule change is too important commenters expressing similar concerns this form, to determine whether a for it to be scrapped because of this rare recommended that the rule be revised so change is needed. The form is subject to and currently murky legal scenario.’’ that a person is required only to disclose the Paperwork Reduction Act of 1995 Another commenter stated that a the gender they identify as regardless of (44 U.S.C. 3501 et seq.), which requires transgender person’s actual sex may be sex assigned at birth and not be asked notice and comment when changes are at odds with his or her appearance, and to provide proof of that identity. made. Accordingly, any changes made questioned the meaning of this Other commenters stated that the rule to this form will provide the public the provision for such a person. A should allow for voluntary self- opportunity to comment, and such commenter asked if transgender persons reporting where sex designations are comment will not only be helpful in may be excluded from shared housing required. In such cases, the commenter addressing the specific issues raised or gay men excluded from sharing stated that ‘‘HUD could allow applicants about this form, but may inform HUD on housing with other men. If so, would to list the sex designation they would changes that may be needed to other other accommodations be made for like to have rather than their biological forms. excluded groups? Other commenters or as yet medically un-reassigned sex.’’ Collect Data To Protect LGBT urged HUD to clarify the rule to state The commenter stated that this would Community that a housing provider may only help to avoid the problem of using inquire about individuals’ gender allowed inquiries regarding sex to get to Several commenters suggested that identity for the purpose of placing them issues of gender identity. Another HUD establish a confidential data in gender-specific accommodations, but commenter stated that it is important to collection system to identify LGBT cannot inquire about a person’s birth ensure that persons are able to self- beneficiaries of HUD housing programs sex, anatomy, or medical history. select their sex in order to protect the to ensure that their housing needs are Response: In Section II of this access of transgender persons to housing met and that they are protected from preamble, HUD has already addressed facilities. Another commenter, after discrimination. several of the concerns raised by the querying how the ‘‘lawful inquiries’’ Comment: Several commenters commenters. HUD is committed to regarding sex will apply to transgender proposed that HUD provide a further review of this issue and, as individuals, stated that ‘‘in these mechanism by which applicants and necessary, will issue guidance that, instances, self-identification is probably tenants of HUD-assisted housing or through examples, elaborates on how the best way to go; however, this may HUD-insured housing can voluntarily the prohibition of inquiries on sexual be an area best left with some report their sexual orientation and orientation and gender identity, and the discretion.’’ gender identity. Such data would be allowance for lawful inquiries as to sex, Response: HUD recognizes the serious collected for informational purposes will work in practice. problem of housing instability among only, and in a manner to protect the Comment: Several commenters transgender persons. The housing confidentiality of the responder. suggested that HUD-funded programs discrimination, harassment, and Commenters identified varying need should accept an individual’s gender that transgender persons for such data. One commenter explained identity, as opposed to ‘‘sex’’ in face are part of what precipitated HUD’s that data on the sexual orientation and determining housing placement in sex- rulemaking in this area. These issues gender identity of HUD program segregated housing programs. One also contributed to HUD’s recent participants is crucial to demonstrate commenter stated that lawful inquiries recognition that housing discrimination the need for affirmative outreach, assess of a consumer’s ‘‘sex’’ where housing because of nonconformity with gender its effect, and attract resources to involves the sharing of sleeping areas stereotypes may constitute sex address problems in this area. Other and bathrooms leave transgender discrimination under the Fair Housing commenters stated that the data would individuals, who may need the most Act. HUD is aware of the significant be of substantial value for the protection, particularly vulnerable to challenges that transgender persons face development of appropriate programs discrimination. Another commenter when attempting to access shelters. By and policies. One commenter specified stated that even inquiries of individuals way of this rule, however, HUD is not that information on program who have obtained legal gender change mandating a national policy related to participants’ sexual orientation and documents would lead to harassment appropriate placement of transgender gender identity can be useful to and discrimination. For this reason, the persons in shelters limited to one sex. determine whether appropriate servicers commenter suggested that inquiries HUD needs additional time to review are being delivered and to assess about sex for sex-specific housing this issue and determine whether setting whether progress is being made in should be made in reference to an national policy is appropriate. meeting the housing needs of LGBT individual’s gender identity. Comment: A commenter expressed youth and adults. Other commenters Another commenter stated that if concern about being required to identify stated that data should be collected only applicants are not allowed to report the sex of tenants on the Form HUD– to assess whether the rule is achieving their gender identity rather than their 50059, given that the applicant/tenant is its goals. sex as legally defined by their state not asked to self-identify sex but rather Commenters provided specific government, the considerable the information is assigned by a third suggestions for safeguarding differences among states as to how party based on observation. Form HUD– confidentiality. One commenter

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proposed that inquiries should not be of a database containing gender identity Opportunity. (See http://portal.hud.gov/ permitted until after admission information of applicants. hudportal/HUD?src=/topics/ decisions have been made, and another Response: For the reasons discussed housing_discrimination.) stated that only staff involved in the in Section II of the preamble, HUD Enforcement Procedures collection and analysis of the data declines to include in this regulation a should have access to it. Other national reporting system of sexual Comment: Several commenters noted commenters urged HUD to continue to orientation and gender identity. HUD that the proposed rule was not explicit work with fair housing organizations understands the concerns of the as to how HUD plans to enforce the rule. and the housing community to collect commenters, but believes that further One commenter stated that there must demographic information on the LGBT consideration must be given to this be a mechanism by which claims of community in a way that cannot be used proposal. This final rule is not intended discrimination in HUD programs can be to discriminate, by including to prohibit mechanisms that allow for voiced by the LGBT community. appropriate restrictions on the voluntary and anonymous reporting of Another commenter echoed that acquisition, retention, and use of the sexual orientation or gender identity for concern, stating that if sexual information to protect the privacy of compliance with data collection orientation or gender identity those whose data is being collected. requirements of state and local discrimination does occur, it must be Several commenters discussed the effect governments or other federal assistance clear to the landlords and future tenants of the proposed prohibition on inquiries programs, but only after determining the that these matters will be addressed in on data collection. One commenter individual’s or family’s eligibility for a fair and timely manner. stated there are a myriad of potential HUD assistance. A commenter suggested that HUD mechanisms for achieving the dual goals Comment: Commenters urged HUD to include in the final rule a clear of protection against discrimination look for ways to collect and maintain procedure for submitting complaints, while gathering sufficient data to data to help identify and combat LGBT holding hearings, and making monitor LGBT housing discrimination. housing discrimination, while determinations of violations of HUD The commenter proposed a voluntary protecting and preserving privacy and program rules. Another commenter reporting system that would allow safety, and preventing further suggested including an appeals process. persons who wish to self-identify to discrimination or retaliation so that One commenter suggested that HUD bypass housing providers and PHAs and additional policy efforts can be further create a centralized complaint system submit demographic information developed. The commenters stated that through which persons can submit directly to HUD. The commenter because discrimination against LGBT information about discrimination under suggested that language be added to individuals is substantially the rule. That commenter proposed that existing forms that would direct all underreported, the final rule should HUD establish a telephone number for applicants and occupants of HUD- contain language requiring covered complaints based on violations of the assisted housing wishing to provide housing providers and grantees to proposed rule, and that HUD designate such information to a Web site and provide accessible information about a coordinator to direct complaints to the mailing address for HUD’s Office of Fair these protections, as well as necessary appropriate persons in the program Housing and Equal Opportunity. The information on how people can submit offices. The commenter proposed that commenter stated that this could enable complaints when they believe their HUD create a complaint intake form the person to submit the information rights have been violated. similar to the existing Form HUD–903 anonymously, while providing HUD One commenter urged HUD to work that persons use to file complaints with sufficient demographic with the LGBT community and fair under the Fair Housing Act. The information to monitor discrimination. housing organizations to collect commenter stated that creating a Another commenter also viewed demographic data on sexual orientation centralized intake system would have voluntary disclosure as the appropriate and gender identity to better enable the the benefit of facilitating the filing of balancing of the right to privacy LGBT community to advocate for reports of discrimination, as well as ‘‘against the rule’s purpose in ensuring increased funding for geographic and providing more information about the equal access to housing.’’ But according programmatic areas where LGBT occurrence of discrimination in HUD to the commenter, ‘‘[w]hile the rule persons remain vulnerable. Another programs. The commenter stated that proposal notes that the inquiry commenter stated that because sexual ‘‘[p]ractical mechanisms for prohibition does nothing to limit orientation and gender identity are still enforcement will allow LGBT families voluntary disclosure, it also does not identified in the Fair Housing Act as and advocates to fully utilize these nothing to channel such disclosures in prohibited bases for discrimination, data changes to access housing.’’ a way that promotes the rule’s must be collected to reflect the number One commenter questioned whether underlying goal.’’ of LGBT individuals and families HUD anticipates an expansion of its One commenter recommended that seeking access to HUD programs and Investigations Division to support the HUD conform its data collection services to help advocate for necessary proposed rule, and if so, what if any systems related to the sex of household policy changes and to identify areas training the existing staff would members to the proposed prohibition of where LGBT persons remain undergo to adequately prepare for this inquiries concerning gender identity. particularly vulnerable to type of investigation. Another Another commenter stated that the discrimination. commenter simply suggested that HUD prohibition on inquiries regarding Response: HUD appreciates all the consider expanding its investigative gender identity could result in the proposals submitted by the commenters. units to respond to the likely increase in inadvertent housing of dangerous As discussed in Section II of the complaints. individuals because, in the commenter’s preamble, HUD declines to add a data A commenter inquired whether the view, gender identity is an important collection mechanism to the rule. HUD regulations create a new right for component of the applicant information notes, however, that it has existing aggrieved parties. The commenter collected to gather accurate criminal mechanisms for collecting and reporting explained that while an aggrieved party background information. The on discrimination claims filed with its can file a complaint alleging commenter supported the establishment Office of Fair Housing and Equal discrimination on grounds expressly

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forbidden in the Fair Housing Act, the provide remedies under the rule, any behavior or comment that proposed rule does not seem to give whether it is to sanction, suspend, discriminates against individuals victims of discrimination based on debar, or seek civil penalties against covered under HUD’s policies. sexual orientation or gender identity the those individuals or entities who deny Employees who are sensitive to LGBT same right. The commenter requested individuals and families safe, clean, issues should be enlisted to provide clarification regarding what method of because of their information to assist LGBT individuals enforcement HUD will implement if it gender identity or sexual orientation. and their families in making decisions does not explicitly extend this right to The commenters believe that ‘‘setting as to the most comfortable and safe victims of discrimination based on the rules in stone’’ would deter housing housing. Another of the commenters sexual orientation or gender identity. providers from violating the terms of the stated that in order to ensure The commenter concluded that without rule. compliance with the proposed rule, it zealous and informed enforcement, Response: Whenever a participant in will be necessary to educate the affected these regulations will provide only lip a HUD program fails or refuses to agencies and programs on the meaning service to the broader goals of comply with regulatory requirements, of ‘‘actual or perceived gender-related promoting access to HUD programs for such failure or refusal shall constitute a characteristics,’’ a definition cited in the all eligible families. violation of the requirements under the rule and drawn from the Matthew Response: As noted in response to an program in which the participant is Shepard and James Byrd, Jr. Hate earlier comment, this rule creates operating and the participant will be Crimes Prevention Act of 2009. additional program requirements to subject to all sanctions and penalties for Another commenter recommended ensure equal access to HUD programs violation of program requirements, as that HUD develop comprehensive for all eligible families. Therefore, a provided for under the applicable outreach goals and advertise in the violation of the program requirements program, including the withholding of LGBT media. The commenter established by this rule will be handled HUD assistance. In addition, as is recommended that forms HUD–935.2(a) in the same manner that violations of discussed in the prior response, HUD or (b) be amended for this purpose to other program requirements are may pursue an enforcement action include categories for gender identity handled. Each HUD program has in when the Fair Housing Act is and sexual orientation as target groups, place mechanisms for addressing implicated. A housing provider who is and that such forms be available for all violations of program requirements. If a found to have violated the Fair Housing HUD-assisted programs. The commenter participant in HUD-assisted or HUD- Act may be liable for actual damages, also suggested that PHAs affirmatively insured housing programs believes that injunctive and other equitable relief, market to underrepresented populations the housing provider is not complying civil penalties, and attorney’s fees. as they are required to affirmatively with program requirements, the market housing under the Fair Housing Education, Outreach, and Guidance individual may complain to the Act. Other commenters recommended appropriate HUD office that administers A commenter stated that HUD should that HUD-assisted housing providers be the program (e.g., the Office of Public add education requirements. The required to affirmatively market to the and Indian Housing, the Office of commenter stated that within 9 months LGBT population through community Community Planning and after this regulation goes into effect, centers and other outreach groups. One Development). In addition, as also noted entities that participate in HUD of these commenters stated that HUD in the earlier response to a comment, programs should educate their relevant program staff, PHAs, subsidized housing certain complaints would be covered by staff on the rule. An Internet-based providers, and housing-related service the Fair Housing Act. A claim of training program could be efficiently providers will need education on the discrimination based on nonconformity used. This requirement could be waived final rule to ensure that they are in with gender stereotypes may be in rural areas that currently lack Internet compliance. investigated and enforced under the Fair access, or an alternative means of A commenter recommended that HUD Housing Act as sex discrimination. HUD satisfying the requirement could be conduct a public relations campaign recently published guidance on this. See created, such as participation via that explains the new regulation and http://portal.hud.gov/hudportal/ telephone. This commenter also stated welcomes LGBT families. The HUD?src=/program_offices/ that within 9 months, HUD should commenter suggested that owners and fair_housing_equal_opp/ require participating entities to begin operators of HUD-assisted housing and LGBT_Housing_Discrimination. Such providing individuals with updated FHA-insured housing be aware of the claims would be filed through HUD’s information regarding their rights to be proposed rule and its impact on their Office of Fair Housing and Equal free from discrimination. This day-to-day dealings with tenants and Opportunity at the Web site noted commenter stated that given limited mortgagors, while also suggesting that earlier in this preamble: http:// resources, HUD should focus its efforts HUD create literature, posters, and other portal.hud.gov/hudportal/HUD?src=/ on areas with large LGBT populations materials directed at LGBT families. The topics/housing_discrimination or and in jurisdictions that do not commenter stated that these 1–(800) 669–9777. Many states and currently possess anti-discrimination advertisements should advise LGBT localities have laws prohibiting statutes that cover sexual orientation or families that HUD wants to ensure their discrimination based on one’s LGBT gender identity. equal access to its core rental assistance status. HUD’s guidance, referenced Another commenter stated that and homeownership programs, while above, contains a list of such states. As whether this policy has its desired effect the media campaign should convey that noted below, HUD will develop training will greatly depend on outside factors. HUD is committed to taking actions materials to educate recipients of HUD The anti-discrimination policies in necessary to ensure that LGBT families funding of their rights and place should be brought to the attention are not excluded on the basis of their responsibilities under this rule. of applicants for HUD housing through sexual orientation, gender identity, or HUD application forms, interviews, and other criteria irrelevant to the purpose Remedies Web site pages. HUD employees should of HUD. Other commenters recommended that be instructed as to the reasons for these Another commenter stated that if HUD clearly explain its authority to policies and should be sanctioned for LGBT individuals do not know about

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the proposed regulation, it will be much Accordingly, HUD does not find it mission is to create strong, sustainable, less effective. If enforcement of the necessary to wait for the completion of inclusive communities and quality proposed regulation largely depends on the study. It is HUD’s desire to affordable homes for all. This includes litigation by those who have been proactively address the possibility of LGBT persons, who have faced discriminated against, then those discrimination against LGBT difficulty in seeking housing. Excluding individuals must know that the individuals and families in HUD’s any eligible person from HUD-funded or discrimination that they faced was housing programs. HUD-insured housing because of that actually illegal. HUD should work with Rule Did Not Properly Address person’s sexual orientation or gender prominent LGBT organizations, as well Federalism Concerns identity contravenes HUD’s as with nonprofits that deal with fair responsibility under the Department of housing and with state and local Comment: A commenter stated that Housing and Urban Development Act to governments to disseminate these this rule fails to properly address work to address ‘‘the needs and interests proposed rules in a simple and easy-to- federalism concerns because protecting of the Nation’s communities and of the understand way. LGBT persons from discrimination is a people who live and work in them.’’ A commenter specifically inquired matter of state law, and while some (See 42 U.S.C. 3531.) Congress has about whether HUD’s Fair Housing states have chosen to enact such repeatedly charged the Department with Enforcement Office would provide protections, other states have declined serving the existing housing needs of all training on the implementation of the to do so. Another commenter stated that Americans, including in section 2 of the rule. Another commenter states that, in HUD is overstepping its authority by Housing Act of 1949, 42 U.S.C. 1441 particular, HUD should: (1) Publicize defining family in the proposed (‘‘The Congress hereby declares that the the new regulation, (2) develop know- regulation. The commenter thought this general welfare and security of the your-rights materials for LGBT could be construed as an infringement Nation and the health and living individuals to promote the reporting of on states’ rights because the Federal standards of its people require * * * violations, and (3) provide mandatory Government has primarily left it to the the realization as soon as feasible the trainings to owners and operators of states to make determinations regarding goal of a decent home and a suitable HUD-assisted housing programs to the definition of family. Another living environment for every American encourage compliance. commenter stated that HUD is violating family * * *’’); section 2 of the Housing Another commenter recommended Executive Order 13132 on federalism by and Urban Development Act of 1968, 12 that HUD issue clear guidelines that will regulating marriage and housing. U.S.C. 1701t (‘‘The Congress affirms the ensure that LGBT tenants of single-sex According to the commenter, these are national goal, as set forth in section 2 of housing will not be singled out for states’ rights issues, as regulation of the Housing Act of 1949, of ‘a decent harassment or disparate treatment on marriage and housing occur at a state home and a suitable living environment the basis of their sexual orientation or level, notwithstanding that the Federal for every American family’’’); sections gender identity. The commenter Government provides funding for 101 and 102 of the Cranston-Gonzalez suggested that HUD owners and housing. National Affordable Housing Act, 42 Response: HUD’s rule is not in operators be given instructions on how U.S.C. 12701–702 (‘‘The Congress violation of the executive order on to provide reasonable accommodations affirms the national goal that every federalism, Executive Order 13132, nor for LGBT families, including, where American family be able to afford a is it regulating marriage. HUD’s rule possible, mechanisms that provide decent home in a suitable environment. only pertains to HUD’s housing privacy in public showers. The * * * The objective of national housing programs. There is no requirement for commenter stated that HUD staff, as policy shall be to reaffirm the long- any multifamily housing owner to well as HUD owners and operators, established national commitment to participate in HUD’s programs or for should be trained on the importance of decent, safe, and sanitary housing for any lender to become an FHA-approved safe housing for persons who self- every American by strengthening a lender. However, if these individuals or identify as transgender. nationwide partnership of public and Response: Without question, HUD entities choose to participate, then they private institutions able * * * to ensure plans to engage in education and must abide by the program requirements that every resident of the United States outreach about this rule, and will established by HUD. has access to decent shelter or consider many of the proposals offered Rule Exceeds HUD’s Legal Authority assistance in avoiding homelessness by the commenters on how such * * * [and] to improve housing education and outreach may be Comment: A few commenters stated opportunities for all residents of the conducted. that this rule exceeds HUD’s legal authority. The commenters stated that United States’’); and section 2(b) of the Rule Should Wait for Completion of making ‘‘sexual orientation’’ and Housing and Community Development Study ‘‘gender identity’’ protected Act of 1974, 42 U.S.C. 5301 note (‘‘The Comment: A commenter expressed classifications for purposes of federal purpose of this Act, therefore, is—(1) to concern that HUD’s proposed rule was housing programs has no support in any reaffirm the principle that decent and published before HUD completed its act of Congress, and that forbidding affordable shelter is a basic necessity, study on housing discrimination based such discrimination undermines the and the general welfare of the Nation on sexual orientation and gender Defense of Marriage Act. The and the health and living standards of identity. The commenter suggested that commenters stated that HUD should not its people require the addition of new HUD complete its study and consider create new protected classifications housing units to remedy a serious the study’s evidence in revising and where there is no statutory policy shortage of housing for all Americans.’’) finalizing the proposed rule rather than undergirding it. Congress has given HUD broad developing the regulation and Response: The rule creates additional authority to fulfill this mission and conducting the study simultaneously. program requirements to ensure equal implement its responsibilities through Response: The study to which the access of all eligible families to HUD rulemaking. Section 7(d) of the commenter refers concerns the private programs, which is well within the Department of Housing and Urban sector and not HUD’s programs. scope of HUD’s authority. HUD’s Development Act specifically states that

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the Secretary ‘‘may make such rules and from HUD housing for no reason other number of small entities. This rule does regulations as may be necessary to carry than that the individual is LGBT or the not impose any new costs, or modify out his functions, powers, and duties.’’ family has one or more LGBT members existing costs, applicable to HUD HUD does not agree that the Defense is inconsistent with HUD’s mission to grantees. Rather, the purpose of the rule of Marriage Act, which relates to the ensure decent housing and a suitable is to ensure open access to HUD’s core definition of marriage, overrides the living environment for all. Accordingly, programs, regardless of sexual Department’s responsibility to ensure it is incumbent on HUD to ensure that orientation or gender identity. In this that its programs are carried out free the regulations governing its housing rule, HUD affirms the broad meaning of from discrimination. This rule does not programs make clear that such arbitrary ‘‘family’’ that is already provided for in define or otherwise regulate marriage. exclusion will not be tolerated. HUD programs by statute. The only Rather, it seeks to make housing clarification that HUD makes is that a available to LGBT persons who might IV. Findings and Certifications family is a family as currently provided otherwise be denied access to HUD- Regulatory Review—Executive Orders in statute and regulation, regardless of funded or assisted housing. 12866 and 13563 marital status, sexual orientation, or gender identity. Accordingly, the Rule Creates Conflict With Religious Under Executive Order 12866 undersigned certifies that this rule will Freedom (Regulatory Planning and Review), a not have a significant economic impact determination must be made whether a Comment: A commenter stated that on a substantial number of small regulatory action is significant and, the rule may force faith-based and other entities. organizations, as a condition of therefore, subject to review by the Office participating in HUD programs and in of Management and Budget (OMB) in Environmental Impact contravention of their religious beliefs, accordance with the requirements of the This rule sets forth nondiscrimination to support shared housing arrangements order. Executive Order 13563 standards. Accordingly, under 24 CFR between persons who are not joined in (Improving Regulations and Regulatory 50.19(c)(3), this rule is categorically what the commenter referred to as ‘‘the Review) directs executive agencies to excluded from environmental review legal union of one man and woman.’’ analyze regulations that are ‘‘outmoded, under the National Environmental Another commenter explained that, ineffective, insufficient, or excessively Policy Act of 1969 (42 U.S.C. 4321). while not insisting that any person burdensome, and to modify, streamline, should be denied housing, faith-based expand, or repeal them in accordance Executive Order 13132, Federalism and other organizations should retain with what has been learned.’’ Executive Executive Order 13132 (entitled the freedom to make housing Order 13563 also directs that, where ‘‘Federalism’’) prohibits an agency from placements in a manner consistent with relevant, feasible, and consistent with publishing any rule that has federalism their religious beliefs. The commenter regulatory objectives, and to the extent implications if the rule either: (i) further stated that the rule, by infringing permitted by law, agencies are to Imposes substantial direct compliance on religious freedom, may have the identify and consider regulatory costs on state and local governments ultimate effect of driving away faith- approaches that reduce burdens and and is not required by statute, or (ii) based organizations with a long and maintain flexibility and freedom of preempts state law, unless the agency successful track record in meeting choice for the public. A determination meets the consultation and funding housing needs. The commenter was made that this rule is a ‘‘significant requirements of section 6 of the concluded that given their large role in regulatory action,’’ as defined in section Executive Order. This rule would not serving unmet housing needs, it is 3(f) of the Order (although not have federalism implications and would imperative that such faith-based economically significant, as provided in not impose substantial direct organizations not be required to section 3(f)(1) of the Order). The docket compliance costs on state and local compromise or violate their religious file is available for public inspection in governments or preempt state law beliefs as a condition of participating in the Regulations Division, Office of within the meaning of the Executive HUD-assisted housing programs and General Counsel, Department of Order. receiving government funds to carry out Housing and Urban Development, 451 Unfunded Mandates Reform Act needed services. 7th Street SW., Room 10276, Other commenters stated that Washington, DC 20410–0500. Due to Title II of the Unfunded Mandates protecting sexual orientation and gender security measures at the HUD Reform Act of 1995 (2 U.S.C. 1531– identity without provisions for Headquarters building, please schedule 1538) (UMRA) establishes requirements protecting rights of conscience and an appointment to review the docket file for federal agencies to assess the effects belief results in governmental by calling the Regulations Division at of their regulatory actions on state, discrimination favoring one version of (202) 402–3055 (this is not a toll-free local, and tribal governments, and on morality and belief over another. The number). Individuals with speech or the private sector. This rule would not commenters stated that there are many hearing impairments may access this impose any federal mandates on any individuals and faith-based number via TTY by calling the Federal state, local, or tribal governments, or on organizations who have already been Information Relay Service at (800) 877– the private sector, within the meaning of penalized for adherence to religious 8339. the UMRA. beliefs that will not permit them to List of Subjects support same-sex relationships. Regulatory Flexibility Act Response: Faith-based organizations The Regulatory Flexibility Act (RFA) 24 CFR Part 5 have long been involved in HUD (5 U.S.C. 601 et seq.) generally requires Administrative practice and programs and provide valuable services an agency to conduct a regulatory procedure, Aged, Claims, Drug abuse, to low-income populations served by flexibility analysis of any rule subject to Drug traffic control, Grant programs— HUD. It is HUD’s hope that faith-based notice and comment rulemaking housing and community development, organizations will continue to actively requirements, unless the agency certifies Grant programs—Indians, Individuals participate in HUD programs. However, that the rule will not have a significant with disabilities, Loan programs— the exclusion of an individual or family economic impact on a substantial housing and community development,

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Low and moderate income housing, Accordingly, for the reasons stated HUD-insured housing, approved lender Mortgage insurance, Pets, Public above, HUD amends 24 CFR parts 5, in an FHA mortgage insurance program, housing, Rent subsidies, Reporting and 200, 203, 236, 291, 570, 574, and 982, nor any (or any other) recipient or recordkeeping requirements. as follows: subrecipient of HUD funds may inquire about the sexual orientation or gender 24 CFR Part 200 PART 5—GENERAL HUD PROGRAM identity of an applicant for, or occupant Administrative practice and REQUIREMENTS; WAIVERS of, HUD-assisted housing or housing procedure, Claims, Equal employment whose financing is insured by HUD, ■ 1. The authority citation for 24 CFR opportunity, Fair housing, Home whether renter- or owner-occupied, for part 5 continues to read as follows: improvement, Housing standards, Lead the purpose of determining eligibility poisoning, Loan programs—housing and Authority: 42 U.S.C. 3535(d), unless for the housing or otherwise making community development, Mortgage otherwise noted. such housing available. This prohibition insurance, Organization and functions ■ 2. The heading of subpart A is revised on inquiries regarding sexual (Government agencies), Penalties, to read as follows: orientation or gender identity does not Reporting and recordkeeping. prohibit any individual from voluntarily Subpart A—Generally Applicable 24 CFR Part 203 self-identifying sexual orientation or Definitions and Requirements; Waivers gender identity. This prohibition on Hawaiian Natives, Home inquiries does not prohibit lawful improvement, Indians—lands, Loan * * * * * ■ inquiries of an applicant or occupant’s programs—housing and community 3. In § 5.100, definitions for ‘‘family,’’ ‘‘gender identity,’’ and ‘‘sexual sex where the housing provided or to be development, Mortgage insurance, provided to the individual is temporary, Reporting and recordkeeping orientation’’ are added to read as follows: emergency shelter that involves the requirements, Solar energy. sharing of sleeping areas or bathrooms, 24 CFR Part 236 § 5.100 Definitions. or inquiries made for the purpose of determining the number of bedrooms to Grant programs—housing and * * * * * Family has the meaning provided this which a household may be entitled. community development, Low- and term in § 5.403, and applies to all HUD moderate-income housing, Mortgage * * * * * programs unless otherwise provided in insurance, Rent subsidies, Reporting the regulations for a specific HUD Subpart D—Definitions for Section 8 and recordkeeping requirements. program. and Public Housing Assistance Under 24 CFR Part 570 * * * * * the United States Housing Act of 1937 Administrative practice and Gender identity means actual or ■ 5. In § 5.403, the definitions of procedure, American Samoa, perceived gender-related characteristics. ‘‘disabled family’’, ‘‘elderly family’’, Community development block grants, * * * * * ‘‘family’’, and ‘‘near elderly family’’ are Grant programs—education, Grant Sexual orientation means revised to read as follows: programs—housing and community homosexuality, heterosexuality, or development, Guam, Indians, Loan bisexuality. § 5.403 Definitions. programs—housing and community * * * * * * * * * * development, Low and moderate ■ 4. In § 5.105, revise the introductory Disabled family means a family whose income housing, Northern Mariana text, redesignate paragraph (a) as head (including co-head), spouse, or Islands, Pacific Islands Trust Territory, paragraph (a)(1), and add paragraph sole member is a person with a Puerto Rico, Reporting and (a)(2) to read as follows: disability. It may include two or more recordkeeping requirements, Student persons with disabilities living together, aid, Virgin Islands. § 5.105 Other Federal Requirements. or one or more persons with disabilities The requirements set forth in this living with one or more live-in aides. 24 CFR Part 574 section apply to all HUD programs, * * * * * Community facilities, Grant except as may be otherwise noted in the Elderly family means a family whose programs—health programs, Grant respective program regulations in title head (including co-head), spouse, or programs—housing and community 24 of the CFR, or unless inconsistent sole member is a person who is at least development, Grant programs—social with statutes authorizing certain HUD 62 years of age. It may include two or programs, HIV/AIDS, Low and moderate programs: more persons who are at least 62 years income housing, Reporting and (a) * * * of age living together, or one or more recordkeeping requirements. (2) Equal access to HUD-assisted or persons who are at least 62 years of age insured housing. (i) Eligibility for HUD- living with one or more live-in aides. 24 CFR Part 891 assisted or insured housing. A Family includes, but is not limited to, Aged, Grant programs—housing and determination of eligibility for housing the following, regardless of actual or community development, Individuals that is assisted by HUD or subject to a perceived sexual orientation, gender with disabilities, Loan programs— mortgage insured by the Federal identity, or marital status: housing and community development, Housing Administration shall be made (1) A single person, who may be an Rent subsidies, Reporting and in accordance with the eligibility elderly person, displaced person, recordkeeping requirements. requirements provided for such program disabled person, near-elderly person, or by HUD, and such housing shall be any other single person; or 24 CFR Part 982 made available without regard to actual (2) A group of persons residing Grant programs—housing and or perceived sexual orientation, gender together, and such group includes, but community development, Grant identity, or marital status. is not limited to: programs—Indians, Indians, Public (ii) Prohibition of inquiries on sexual (i) A family with or without children housing, Rent subsidies, Reporting and orientation or gender identity. No owner (a child who is temporarily away from recordkeeping requirements. or administrator of HUD-assisted or the home because of placement in foster

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care is considered a member of the (b) Determinations of adequacy of Authority: 42 U.S.C. 3535(d) and 12901– family); mortgagor income under this section 12912. (ii) An elderly family; shall be made in a uniform manner ■ 16. In § 574.3, the definition of (iii) A near-elderly family; without regard to race, color, religion, ‘‘family’’ is revised to read as follows: (iv) A disabled family; sex, national origin, familial status, (v) A displaced family; and handicap, marital status, actual or § 574.3 Definitions. (vi) The remaining member of a tenant perceived sexual orientation, gender * * * * * family. identity, source of income of the Family is defined in 24 CFR 5.403 and * * * * * mortgagor, or location of the property. includes one or more eligible persons Near-elderly family means a family living with another person or persons, whose head (including co-head), PART 236—MORTGAGE INSURANCE regardless of actual or perceived sexual spouse, or sole member is a person who AND INTEREST REDUCTION orientation, gender identity, or marital is at least 50 years of age but below the PAYMENT FOR RENTAL PROJECTS status, who are determined to be age of 62; or two or more persons, who important to the eligible person or ■ 11. The authority citation for 24 CFR are at least 50 years of age but below the person’s care or well-being, and the part 236 continues to read as follows: age of 62, living together; or one or more surviving member or members of any persons who are at least 50 years of age Authority: 12 U.S.C. 1715b and 1715z–1; family described in this definition who but below the age of 62, living with one 42 U.S.C. 3535(d). were living in a unit assisted under the or more live-in aides. ■ 12. Section 236.1 is amended by HOPWA program with the person with * * * * * adding a sentence at the end of AIDS at the time of his or her death. paragraph (a) to read as follows: * * * * * PART 200—INTRODUCTION TO FHA PROGRAMS § 236.1 Applicability, cross-reference, and PART 891—SUPPORTIVE HOUSING savings clause. FOR THE ELDERLY AND PERSONS ■ 6. The authority citation for 24 CFR (a) Applicability. * * * The definition WITH DISABILITIES part 200 continues to read as follows: of ‘‘family’’ in 24 CFR 200.3(a) applies Authority: 12 U.S.C. 1702–1715z–21; 42 to any refinancing of a mortgage insured ■ 17. The authority citation for part 891 U.S.C. 3535(d). under section 236, or to financing continues to read as follows: ■ 7. In § 200.3, paragraph (a) is revised pursuant to section 236(j)(3) of the Authority: 12 U.S.C. 1701q; 42 U.S.C. to read as follows: purchase, by a cooperative or nonprofit 1437f, 3535(d), and 8013. corporation or association of a project ■ 18. In § 891.105, the definition of § 200.3 Definitions. assisted under section 236. ‘‘family’’ is added to read as follows: (a) The definitions ‘‘department’’, * * * * * ‘‘elderly person’’, ‘‘family’’, ‘‘HUD’’, and § 891.105 Definitions. ‘‘Secretary’’, as used in this subpart A, PART 570—COMMUNITY * * * * * shall have the meanings given these DEVELOPMENT BLOCK GRANTS Family is defined in 24 CFR 5.403. terms in 24 CFR part 5. ■ * * * * * * * * * * 13. The authority citation for 24 CFR ■ 8. Section 200.300 is revised to read part 570 continues to read as follows: PART 982—SECTION 8 TENANT– as follows: Authority: 42 U.S.C. 3535(d), and 5301– BASED ASSISTANCE: HOUSING 5320. CHOICE VOUCHER PROGRAM § 200.300 Nondiscrimination and fair housing policy. Subpart A—General Provisions ■ 19. The authority citation for 24 CFR Federal Housing Administration part 982 continues to read as follows: programs shall be administered in ■ 14. In § 570.3, the definitions of Authority: 42 U.S.C. 1437f and 3535(d). accordance with: ‘‘family’’ and ‘‘household’’ are revised (a) The nondiscrimination and fair to read as follows: ■ 20. In § 982.4, remove the colon at the housing requirements set forth in 24 end of paragraph (a) subject heading and CFR part 5, including the prohibition on § 570.3 Definitions. add a period in its place, revise inquiries regarding sexual orientation or * * * * * paragraph (a)(1), remove paragraph gender identity set forth in 24 CFR Family refers to the definition of (a)(2), and redesignate paragraph (a)(3) 5.105(a)(2); and ‘‘family’’ in 24 CFR 5.403. as paragraph (a)(2); and revise the (b) The affirmative fair housing Household means all persons definition of ‘‘family’’ in paragraph (b) marketing requirements in 24 CFR part occupying a housing unit. The to read as follows: 200, subpart M and 24 CFR part 108. occupants may be a family, as defined in 24 CFR 5.403; two or more families § 982.4 Definitions. PART 203—SINGLE FAMILY living together; or any other group of (a) Definitions found elsewhere—(1) MORTGAGE INSURANCE related or unrelated persons who share General definitions. The following terms are defined in part 5, subpart A of this ■ living arrangements, regardless of actual 9. The authority citation for 24 CFR or perceived, sexual orientation, gender title: 1937 Act, covered person, drug, part 203 continues to read as follows: identity, or marital status. drug-related criminal activity, federally assisted housing, guest, household, Authority: 12 U.S.C. 1709, 1710, 1715b, * * * * * 1715z–16, and 1715u; 42 U.S.C. 3535(d). HUD, MSA, other person under the ■ 10. In § 203.33, paragraph (b) is PART 574—HOUSING tenant’s control, public housing, Section revised to read as follows: OPPORTUNITIES FOR PERSONS WITH 8, and violent criminal activity. AIDS * * * * * § 203.33 Relationship of income to (b) * * * mortgage payments. ■ 15. The authority citation for 24 CFR Family. A person or group of persons, * * * * * part 574 continues to read as follows: as determined by the PHA consistent

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with 24 CFR 5.403, approved to reside § 982.201 Eligibility and targeting. Dated: January 27, 2012. in a unit with assistance under the * * * * * Shaun Donovan, program. See ‘‘family composition’’ at (c) Family composition. See definition Secretary. § 982.201(c). of ‘‘family’’ in 24 CFR 5.403. [FR Doc. 2012–2343 Filed 2–2–12; 8:45 am] * * * * * BILLING CODE 4210–67–P ■ 21. In § 982.201, paragraph (c) is * * * * * revised to read as follows:

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1 of 1 DOCUMENT

DISTRICT OF COLUMBIA OFFICIAL CODE Copyright 2013 by the District of Columbia

*** CURRENT THROUGH APRIL 1, 2013, AND THROUGH D.C. ACT 19-658. ***

DIVISION I. GOVERNMENT OF DISTRICT TITLE 2. GOVERNMENT ADMINISTRATION CHAPTER 14. HUMAN RIGHTS UNIT A. HUMAN RIGHTS LAW SUBCHAPTER II. PROHIBITED ACTS OF DISCRIMINATION PART C . HOUSING AND COMMERCIAL SPACE.

D.C. Code § 2-1402.21 (2013)

§ 2-1402.21. Prohibitions

(a) General. -- It shall be an unlawful discriminatory practice to do any of the following acts, wholly or partially for a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, familial status, family responsibilities, disability, matriculation, political affiliation, source of income, status as a victim of an intrafamily offense, or place of residence or business of any individual:

(1) To interrupt or terminate, or refuse or fail to initiate or conduct any transaction in real property; or to require different terms for such transaction; or to represent falsely that an interest in real property is not available for transaction;

(2) To include in the terms or conditions of a transaction in real property, any clause, condition or restriction;

(3) To appraise a property, refuse to lend money, guarantee a loan, purchase a loan, accept residential real property as security for a loan, accept a deed of trust or mortgage, or otherwise refuse to make funds available for the purchase, acquisition, construction, alteration, rehabilitation, repair or maintenance of real property; or impose different conditions on such financing; or refuse to provide title or other insurance relating to the ownership or use of any interest in real property;

(4) To refuse or restrict facilities, services, repairs or improvements for a tenant or lessee;

(5) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to a transaction, or proposed transaction, in real property, or financing relating thereto, which notice, statement, or advertisement unlawfully indicates or attempts unlawfully to indicate any preference, limitation, or discrimination based on race, color, religion, national origin, sex, age, marital status, personal appearance, sexual Page 2 D.C. Code § 2-1402.21

orientation, gender identity or expression, familial status, family responsibilities, disability, matriculation, political affiliation, source of income, or place of residence or business, of any individual;

(6) To discriminate in any financial transaction involving real property, on account of the location of residence or business (i.e. to "red-line"); or

(7) To limit access to, or membership or participation in any multiple-listing service, real estate brokers' organization or other service, organization, or facility relating to the business of selling or renting residential real estate, or to discriminate against any person in terms or conditions of access, membership or participation in any organization, service or facility.

(b) Subterfuge. -- It shall further be an unlawful discriminatory practice to do any of the above said acts for any reason that would not have been asserted but for, wholly or partially, a discriminatory reason based on the actual or perceived: race, color, religion, national origin, sex, sexual orientation, gender identity or expression, familial status, family responsibilities, disability, matriculation, political affiliation, source of income, status as victim of an intrafamily offense, or place of residence or business of any individual.

(c) Families with children.

(1) It shall be an unlawful discriminatory practice to do any of the acts prohibited in subsections (a) and (b) of this section wholly or partially based on the fact that a person has one or more children who reside with that person.

(2) There shall be a rebuttable presumption that an unlawful discriminatory practice has occurred if the person alleging discrimination has 1 or more children who reside with that person and any of the acts prohibited by subsections (a) and (b) of this section are done to maintain residential occupancies more restrictive than the following:

(A) In an efficiency , 2 persons; or

(B) In an apartment with one or more bedrooms, 2 times the number of bedrooms plus one.

(3) Nothing contained in this chapter limits the applicability of any District or federal restriction regarding the maximum number of occupants permitted to occupy a dwelling. Nothing in this chapter regarding familial status applies to housing for older persons.

(4) For the purposes of this subsection "housing for older persons" means a premises which:

(A) The U.S. Department of Housing and Urban Development determines pursuant to a federal program, is specifically designed and operated to assist older persons;

(B) Is intended for, and solely occupied by persons 62 years of age or older; or

(C) Is intended and operated for occupancy by persons 55 years of age or older, provided that at least 80% of the occupied units are occupied by at least one person who is 55 years of age or older, and the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required pursuant to this paragraph, and complies with rules issued by the Secretary of the U.S. Department of Housing and Urban Development for verification of occupancy.

(d) Disability.

(1) It shall be an unlawful discriminatory practice in the sale or rental of real estate to deny a dwelling to a buyer or Page 3 D.C. Code § 2-1402.21

renter or to otherwise make a dwelling unavailable to a buyer or renter because of a disability of:

(A) That buyer or renter; or

(B) Any person residing in or intending to reside in that dwelling after it is sold, rented or made available; or any person associated with that buyer or renter.

(2) It shall be unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling or in the provision of services or facilities in connection with the dwelling because of a disability of:

(A) That buyer or renter; or

(B) Any person residing in or intending to reside in that dwelling after it is sold, rented or made available; or any person associated with that buyer or renter.

(3) For purposes of this subsection, "unlawful discrimination" includes:

(A) A refusal to permit, at the expense of the person with the disability, reasonable modifications of existing premises occupied or to be occupied by the person if the modification may be necessary to afford the person full enjoyment of the premises of a dwelling. A landlord, where it is reasonable, may condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;

(B) A refusal to make reasonable accommodations in rules, policies, practices, or services, when these accommodations may be necessary to afford any person equal opportunity to use and enjoy a dwelling;

(C) In connection with the design and construction of covered multifamily dwellings for first occupancy after April 20, 1999, a failure to design and construct these dwellings in a manner that:

(i) The public and common use portions of the dwellings are readily accessible to and usable by persons with disabilities; and

(ii) Doors designed to allow passage into and within all premises within the dwellings are sufficiently wide to allow passage by persons with wheelchairs;

(D) All premises within the dwellings shall contain the following features of adaptive design:

(i) An accessible route into and through the dwelling;

(ii) Light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;

(iii) Reinforcements in bathroom walls to allow later installations of grab bars;

(iv) Usable kitchens and bathrooms so that an individual in a wheelchair can maneuver about the space; and

(v) The premises within the dwellings shall have at least 1 building entrance on an accessible route unless it is impracticable because of the terrain or unusual characteristics of the site.

(4) Compliance with the appropriate requirements of the American National Standard for buildings and facilities providing accessibility and usability for persons with disabilities suffices to satisfy the requirements of paragraph (3) of Page 4 D.C. Code § 2-1402.21

this subsection.

(5) Nothing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.

(e) The monetary assistance provided to an owner of a housing accommodation under section 8 of the United States Housing Act of 1937, approved August 22, 1974 (88 Stat. 662; 42 U.S.C. § 1437f), either directly or through a tenant, shall be considered a source of income under this section.

(f) Victims of intrafamily offenses.

(1) For purposes of this subsection, the term "record" means documentation produced by a law enforcement officer, as defined in § 4-1301.02(14), or a court order pursuant to § 16-1005.

(2) It shall be an unlawful discriminatory practice to do any of the acts prohibited in subsections (a) and (b) of this section wholly or partially based on the fact that a person residing, or intending to reside, in the dwelling is, has a record of being, a victim of an intrafamily offense, as defined in § 16-1001(8).

(3) It shall be an unlawful discriminatory practice to do any of the following additional acts, for purposes of this subsection, wholly or partially based on the fact that a person residing, or intending to reside, in the dwelling is, or has a record of being, a victim of an intrafamily offense, as defined in § 16-1001(8):

(A) Refusing to make a reasonable accommodation in restoring or improving security and safety measures beyond the housing provider's duty of ordinary care and diligence, the costs of which the housing provide may charge to the tenant, when an accommodation is necessary to ensure the person's security and safety;

(B) Refusing to permit a person to terminate the lease of the premises early, without penalty, upon notice to the landlord and upon a showing that the person is a victim of an intrafamily offense, pursuant to § 42-3505.07;

(C) (i) Barring or limiting the right of a person to call for police or emergency assistance, which right, for purposes of this subsection, shall not be waivable; or

(ii) Imposing any penalty for calling police or emergency assistance.

HISTORY: Dec. 13, 1977, D.C. Law 2-38, title II, § 221, 24 DCR 6038; July 26, 1980, D.C. Law 3-80, § 2, 27 DCR 2554; June 28, 1994, D.C. Law 10-129, § 2(d), 41 DCR 2583; Apr. 20, 1999, D.C. Law 12-242, § 2(d), 46 DCR 952; Oct. 1, 2002, D.C. Law 14-189, § 2(c), 49 DCR 6523; Apr. 13, 2005, D.C. Law 15-354, § 8(a), 52 DCR 2638; Mar. 8, 2006, D.C. Law 16-58, § 2(d), 53 DCR 14; Mar. 14, 2007, D.C. Law 16-273, § 3(c), 54 DCR 859; Apr. 24, 2007, D.C. Law 16-305, § 11, 53 DCR 6198; Mar. 25, 2009, D.C. Law 17-368, § 4(a)(2), 56

NOTES: CROSS REFERENCES. --Rental housing discrimination prohibited, see § 42-3505.05.

SECTION REFERENCES. --This section is referenced in § 2-1402.24, § 6-1041.06, and § 42-2851.06.

PRIOR CODIFICATIONS. --1981 Ed., § 1-2515. 1973 Ed., § 6-2231.

EFFECT OF AMENDMENTS. --D.C. Law 14-189, in subsecs. (a) and (b), substituted "actual or perceived: race" for "race". Page 5 D.C. Code § 2-1402.21

D.C. Law 15-354 added subsec. (e). D.C. Law 16-58, in the lead-in language of subsec. (a), subsec. (a)(5), and subsec. (b), substituted "sexual orientation, gender identity or expression," for "sexual orientation,". D.C. Law 16-273, in subsecs. (a) and (b), inserted "status as a victim of an intrafamily offense" following "source of income"; and added subsec. (f). D.C. Law 16-305 substituted "persons with disabilities" for "disabled persons", throughout the section. D.C. Law 17-368, in subsecs. (f)(2) and (3), substituted "§ 16-1001(8)" for "§ 16-1001(5)".

LEGISLATIVE HISTORY OF LAW 2-38. --For legislative history of D.C. Law 2-38, see Historical and Statutory Notes following § 2-1401.01.

LEGISLATIVE HISTORY OF LAW 3-80. --Law 3-80 was introduced in Council and assigned Bill No. 3-74, which was referred to the Committee on Public Safety and Consumer Affairs. The Bill was adopted on first and second readings on April 22, 1980 and May 6, 1980, respectively. Signed by the Mayor on May 23, 1980, it was assigned Act No. 3-191 and transmitted to both of Congress for its review.

LEGISLATIVE HISTORY OF LAW 10-129. --For legislative history of D.C. Law 10-129, see Historical and Statutory Notes following § 2-1401.01.

LEGISLATIVE HISTORY OF LAW 12-242. --For legislative history of D.C. Law 12-242, see Historical and Statutory Notes following § 2-1401.01.

LEGISLATIVE HISTORY OF LAW 14-189. --For Law 14-189, see notes following § 2-1401.02.

LEGISLATIVE HISTORY OF LAW 15-354. --For Law 15-354, see notes following § 2-534.

LEGISLATIVE HISTORY OF LAW 16-58. --For Law 16-58, see notes following § 2-1401.01.

LEGISLATIVE HISTORY OF LAW 16-273. --For Law 16-273, see notes following § 2-1401.01.

LEGISLATIVE HISTORY OF LAW 16-305. --For Law 16-305, see notes following § 2-301.07.

LEGISLATIVE HISTORY OF LAW 17-368. --For Law 17-368, see notes following § 2-1401.02.

ANALYSIS -- Burden of proof -- Construction and application -- Construction with federal law -- Construction with other laws -- Discovery -- Discrimination -- Jurisdiction -- Notice to Mayor -- Rental housing -- Review -- Standing -- Statutes of limitation -- Summary judgment -- Tort claims -- Venue -- Weight and sufficiency of evidence

BURDEN OF PROOF. When a plaintiff offers no direct evidence of discrimination, his claim of discrimination under the Fair Housing Act (FHA) and D.C. Human Rights Act is to be examined under the McDonnell-Douglas burden-shifting framework. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C. § 3601 et seq.; D.C. Code 1981, § 1-2515. Neithamer v. Brenneman Prop. Servs., 81 F.Supp.2d 1, 1999 U.S. Dist. LEXIS 19747 (1999). To establish intentional discrimination, necessary for claim alleging violation of Human Rights Act (DCHRA) based on a defendant's alleged refusal to engage in a real estate transaction or to create additional terms in such a transaction for a discriminatory reason, the plaintiff must prove intentional and purposeful conduct based on his membership in a protected class. Brandywine Apts., LLC v. McCaster, 964 A.2d 162, 2009 D.C. App. LEXIS 10 (2009).

CONSTRUCTION AND APPLICATION. Page 6 D.C. Code § 2-1402.21

It was a facial violation of District of Columbia Human Rights Act for lessor, which refused to accept Section 8 vouchers, to discriminate on the basis of Section 8 renter's source of income. Feemster v. BSA Ltd. P'ship, 548 F.3d 1063, 2008 U.S. App. LEXIS 23910 (C.A.D.C. 2008). District of Columbia Consumer Protection Procedures Act (DCCPA) does not apply to landlord-tenant disputes, and consequently could not be invoked by tenants claiming that landlord was wrongfully refusing to accept vouchers toward payment of rent. Feemster v. BSA Ltd. P'ship, 471 F.Supp.2d 87, 2007 U.S. Dist. LEXIS 2707 (2007), affirmed in part and reversed in part by, remanded by 548 F.3d 1063, 383 U.S. App. D.C. 376, 2008 U.S. App. LEXIS 23910 (2008). Students are a protected class under the Human Rights Act. George Washington Univ. v. D.C. Bd. of Zoning Adjustment, 831 A.2d 921, 2003 D.C. App. LEXIS 553 (2003). The Human Rights Act applies to zoning and the activities of the board of zoning adjustment (BZA). George Washington Univ. v. D.C. Bd. of Zoning Adjustment, 831 A.2d 921, 2003 D.C. App. LEXIS 553 (2003). Tax assessment procedures for proposed initiative (Taxpayers' Right to Know Act) did not involve "transaction in real property" within meaning of statutory prohibition against unlawful discrimination in real estate transactions. D.C. Code 1981, §§ 1-2502(30), 1-2515. Hessey v. Burden, 615 A.2d 562, 1992 D.C. App. LEXIS 280 (1992), remanded by, appeal dismissed sub nomine Price v. District of Columbia Bd. of Elections & Ethics, 645 A.2d 594, 1994 D.C. App. LEXIS 121 (D.C. 1994).

CONSTRUCTION WITH FEDERAL LAW. District of Columbia Human Rights Act (DCHRA), prohibiting source of income housing discrimination against federally funded rental assistance voucher holders, did not alter, amend, or conflict with federal statute establishing Housing Choice Voucher Program (HCVP), permitting landlords to accept as many or as few voucher holders as they chose, as required for preemption of DCHRA, under Supremacy Clause, since preemption would affect District's power to regulate matter of local concern, and DCHRA's nondiscrimination requirement neither compelled nor permitted parties to violate any provision of HCVP and advanced HCVP's objective of aiding low-income families in obtaining decent place to live. Bourbeau v. Jonathan Woodner Co., 549 F.Supp.2d 78, 2008 U.S. Dist. LEXIS 31574 (2008).

CONSTRUCTION WITH OTHER LAWS. Private landlord's refusal to rent apartment to prospective tenant who was federally funded rental assistance voucher holder fell within ambit of District of Columbia Human Rights Act (DCHRA), prohibiting source of income housing discrimination, despite technical amendments correcting error that applied intervening legislation to public, rather than private, housing, since amendments merely clarified DCHRA's long-standing definition of source of income as including federal payments, and intervening District of Columbia Low-Income Housing Preservation and Protection Act (LIHPPA) expressly declared that Housing Choice Voucher Program (HCVP) assistance was source of income under DCHRA. Bourbeau v. Jonathan Woodner Co., 549 F.Supp.2d 78, 2008 U.S. Dist. LEXIS 31574 (2008).

DISCOVERY. Fair housing advocacy organization was entitled to limited discovery in order to oppose landlord's pre-discovery summary judgment motion in District of Columbia Human Rights Act (DCHRA) action related to alleged discrimination against prospective tenants on basis of source of income, where organization's allegations were based on specific factual allegations involving organization's testers and specific prospective tenant and proposition that if there was an established policy of discrimination in place when that tenant was turned away, it likely remained in place when organization's charter was reinstated. Bourbeau v. Jonathan Woodner Co., 600 F.Supp.2d 1, 2009 U.S. Dist. LEXIS 15809 (2009).

DISCRIMINATION. Landlord of town home properties did not violate District of Columbia Human Rights Act (DCHRA) by refusing to accept, in payment of rent, vouchers tendered by low income tenants participating in federal rent subsidy program; DCHRA required showing that refusal was based on discrimination against voucher recipients, and refusal in present case was desire to cease offering any town homes as rental property, as prelude to selling them. Feemster v. BSA Ltd. P'ship, 471 F.Supp.2d 87, 2007 U.S. Dist. LEXIS 2707 (2007), affirmed in part and reversed in part by, remanded by Page 7 D.C. Code § 2-1402.21

548 F.3d 1063, 383 U.S. App. D.C. 376, 2008 U.S. App. LEXIS 23910 (2008). Elevator manufacturer did not violate District of Columbia Human Rights Act when it refused to enter into contract to maintain elevators it installed in apartment complex in which residents were primarily black, handicapped or elderly, absent showing that manufacturer's refusal to deal was discriminatory, rather than motivated by legitimate business reasons. D.C. Code 1981, §§ 1-2501 et seq., 1-2511, 1-2515, 1-2519. Clifton Terrace Assoc., Ltd. v. United Technologies Corp., 728 F. Supp. 24, 1990 U.S. Dist. LEXIS 322 (1990), affirmed in part and vacated in part by 929 F.2d 714, 289 U.S. App. D.C. 121, 1991 U.S. App. LEXIS 5392 (1991). Elevator manufacturer's refusal to negotiate contract to service elevators it had installed in apartment complex at which residents were primarily black, handicapped or elderly did not violate Fair Housing Act. Civil Rights Act of 1968, § 804(a, b), (f)(1, 2), as amended, 42 U.S.C. § 3604(a, b), (f)(1, 2). Clifton Terrace Assoc., Ltd. v. United Technologies Corp., 728 F. Supp. 24, 1990 U.S. Dist. LEXIS 322 (1990), affirmed in part and vacated in part by 929 F.2d 714, 289 U.S. App. D.C. 121, 1991 U.S. App. LEXIS 5392 (1991). Tenant's opening of gay bar on premises in which straight bar was formerly operated did not entitle landlord to vacate stay pending appeal of order permitting landlord to obtain possession of the premises since District of Columbia law prohibited discriminating on basis of sexual orientation and thus operation of gay bar did not violate tenant's agreement to conduct "first class" operation. D.C. Code 1981, § 1-2515(a)(4). In re B & F Associates, Inc., 55 B.R. 19, 1985 Bankr. LEXIS 6024 (1985). Apartment complex's denial of prospective tenant's rental application on account of his common-law wife's criminal background did not violate Human Rights Act (DCHRA) absent evidence of discriminatory animus with respect to tenant's marital status; apartment manager testified that when people applied for an apartment together, whether they were married or not, they were treated as joint applicants, and tenant never made complex aware that he was interested in renting the apartment by himself. Brandywine Apts., LLC v. McCaster, 964 A.2d 162, 2009 D.C. App. LEXIS 10 (2009). Tenant's summary judgment evidence failed to demonstrate that non-retaliatory reasons for landlord s decision not to renew tenant's Section 8 contract were pretextual, and thus evidence was insufficient to demonstrate that landlord's actions constituted source-of-income discrimination under the Human Rights Act. Borger Mgmt. v. Sindram, 886 A.2d 52, 2005 D.C. App. LEXIS 536 (2005). Issue of landlord's alleged source-of-income discrimination, which was raised by tenant as defense to landlord's action for possession on ground of nonpayment of rent, was not procedurally precluded, under collateral estoppel principles, by judgment of the Department of Consumer and Regulatory Affairs (DCRA) on tenant's petition asserting that landlord's termination of its Section 8 participation was unlawful retaliation for tenant's complaint alleging housing code violations; issue was not actually litigated or essential to DCRA's ruling. Borger Mgmt. v. Sindram, 886 A.2d 52, 2005 D.C. App. LEXIS 536 (2005). When the Human Rights Act is read as a whole and in conjunction with the District of Columbia's comprehensive plan and zoning regulations, the Act does not prohibit the board of zoning adjustment (BZA), in imposing conditions on the campus plan, from taking into consideration the number of students who would be housed in residential neighborhoods. George Washington Univ. v. D.C. Bd. of Zoning Adjustment, 831 A.2d 921, 2003 D.C. App. LEXIS 553 (2003). Conditions imposed by the board of zoning adjustment (BZA) on university's campus plan did not violate prohibition against discrimination in housing on account of matriculation; the zoning regulations have specified for more than eighty years that the number of students was a legitimate consideration, and the most recent comprehensive plan, enacted after the Human Rights Act, repeated the requirement to consider the number of students in neighborhoods off campus. George Washington Univ. v. D.C. Bd. of Zoning Adjustment, 831 A.2d 921, 2003 D.C. App. LEXIS 553 (2003). The Human Rights Act proscribes discrimination against students by the board of zoning adjustment (BZA) in the exercise of its authority to enforce the zoning regulations. George Washington Univ. v. D.C. Bd. of Zoning Adjustment, 831 A.2d 921, 2003 D.C. App. LEXIS 553 (2003). The board of zoning adjustment (BZA) is subject to the interdictions of the Human Rights Act, and the Act may be invoked against any application of the zoning regulations which discriminates, in purpose or effect, on grounds prohibited by the Act. George Washington Univ. v. D.C. Bd. of Zoning Adjustment, 831 A.2d 921, 2003 D.C. App. LEXIS 553 (2003). Page 8 D.C. Code § 2-1402.21

Landlord's discriminatory refusal to provide plumbing services to tenant who had Acquired Immune Deficiency Syndrome (AIDS), unless tenant obtained medical certification that premises were safe, was not justified under business necessity exception of Human Rights Act, even if plumbing service was source of bias and finding another plumber would have been financially difficult; plumbing service was landlord's agent, and landlord did not actually attempt to hire another plumber, or to educate plumbing service about AIDS. D.C. Code 1981, §§ 1-2503(a), 1-2515(a)(4). Joel Truitt Management v. District of Columbia Comm'n on Human Rights, 646 A.2d 1007, 1994 D.C. App. LEXIS 140 (1994).

JURISDICTION. Having found no substantial federal cause of action against elevator manufacturer who refused to service elevators in federally subsidized low-income housing complex, district court lacked solid basis for subject matter jurisdiction over parallel claims for intentional discrimination under "housing and commercial space" provisions of District of Columbia Human Rights Act and should have dismissed those claims for lack of pendent jurisdiction, rather than addressing their merits. D.C. Code 1981, § 1-2515(a)(4, 6). Clifton Terrace Assoc., Ltd. v. United Technologies Corp., 929 F.2d 714, 1991 U.S. App. LEXIS 5392 (C.A.D.C. 1991). For limited purposes of summary proceedings in landlord and tenant branch of superior court, landlord was not obligated to provide a wheelchair ramp to recreation area including pool, as claimed by tenant; tenant's remedy for any such failure to accommodate her lay in a different proceeding. D.C. Code 1981, §§ 1-2515(a)(4), 6-1706(a); Landlord and Tenant Rule 5(b). Killingham v. Wilshire Invs. Corp., 739 A.2d 804, 1999 D.C. App. LEXIS 225 (1999).

NOTICE TO MAYOR. District of Columbia employees were required to provide notice to Mayor prior to bringing claims based on District of Columbia Human Rights Act (DCHRA), as those claims were not creations of federal law. Giardino v. District of Columbia, 505 F.Supp.2d 117, 2007 U.S. Dist. LEXIS 63201 (2007), dismissed without prejudice by 252 F.R.D. 18, 2008 U.S. Dist. LEXIS 62499 (D.D.C. 2008).

RENTAL HOUSING. Tenants' underlying claim that insured violated District of Columbia Human Rights Act (DCHRA), by discriminating against tenants due to insured's refusal to accept enhanced vouchers to pay rent for townhomes pursuant to housing assistance payments (HAP) contract, did not constitute "invasion of the right of private occupancy," within meaning of personal and advertising injury provisions of commercial line policy, precluding insurer's duty to defend insured, under Maryland law as predicted by district court, against tenants' DCHRA claims. Nautilus Ins. Co. v. BSA Ltd. P'ship, 602 F.Supp.2d 641, 2009 U.S. Dist. LEXIS 20588 (2009). Under District of Columbia Human Rights Act (DCHRA), if a landlord charges rents that are too high for the Housing Choice Voucher Program (HCVP), administered by Department of Housing and Urban Development (HUD), assuming landlord does so for non-discriminatory reasons, he is not compelled to lower rents in order to permit voucher holders to rent those units. Bourbeau v. Jonathan Woodner Co., 549 F.Supp.2d 78, 2008 U.S. Dist. LEXIS 31574 (2008). Under District of Columbia Human Rights Act (DCHRA), landlords remain free not to rent to federally funded rental assistance voucher holders, provided that landlords do so on other legitimate, non-discriminatory grounds, such as an applicant's rental history or criminal history. Bourbeau v. Jonathan Woodner Co., 549 F.Supp.2d 78, 2008 U.S. Dist. LEXIS 31574 (2008). Rental housing providers have obligation to provide full access for disabled persons to a housing accommodation, the violation of which may be a defense to a suit for possession and back rent. D.C. Code 1981, § 6-1706(a). Killingham v. Wilshire Invs. Corp., 739 A.2d 804, 1999 D.C. App. LEXIS 225 (1999). A court cannot enforce by eviction a private lease which would override statutory provisions that permit a defendant to have dependent children living in her apartment. Balkissoon v. Williams, 120 WLR 173 (Super. Ct. 1992).

REVIEW. Tenant could argue on appeal that landlord's violation of the Human Rights Act afforded an independent ground for affirmance of grant of summary judgment in favor of tenant, in landlord's action for possession on ground of Page 9 D.C. Code § 2-1402.21

nonpayment of rent, even though tenant failed to cross-appeal on that issue. Borger Mgmt. v. Sindram, 886 A.2d 52, 2005 D.C. App. LEXIS 536 (2005).

STANDING. Fair housing advocacy organization's alleged injuries from landlord's refusal to rent to prospective tenants using federally funded rental assistance vouchers, false representations to organization's testers that qualifying were not available, and conduct that diverted scarce resources from organization's central mission were sufficient for Article III standing, in housing discrimination suit against landlord, under District of Columbia Human Rights Act (DCHRA), only for injuries occurring after organization's reinstatement as nonprofit corporation, but not retroactively during period when articles of incorporation were revoked when organization had no legal existence. Bourbeau v. Jonathan Woodner Co., 549 F.Supp.2d 78, 2008 U.S. Dist. LEXIS 31574 (2008). Lessee sufficiently alleged a direct injury to have standing to assert a racial discrimination claim under the District of Columbia Human Rights Act (DCHRA) against lessors, though lessee was not the target of the alleged discrimination, where lessor sought to sell its sandwich shop business to two individuals of Korean descent, but lessors refused to provide consent to assignment of retail lease. D.C. Code 1981, §§ 1-2502(21), 1-2515(a, b), 1-2556. Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 2000 D.C. App. LEXIS 89 (2000).

STATUTES OF LIMITATION. That trial court dismissed lessee's claim, against lessors of retail space, of racial discrimination under the District of Columbia Human Rights Act (DCHRA) on standing grounds did not estop lessors from raising the defense of statute of limitations when lessee's claim was reinstated on appeal, where lessors asserted the statute of limitations as an affirmative defense in their answer. D.C. Code 1981, §§ 1-2515(a, b), 1-2556(a). Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 2000 D.C. App. LEXIS 89 (2000). Lessors of retail space did not waive defense of statute of limitations, on lessee's claim of racial discrimination under the District of Columbia Human Rights Act (DCHRA), though lessors did not raise the defense in their motion to dismiss for failure to state a claim, where lessors asserted the statute of limitations as an affirmative defense in their answer. D.C. Code 1981, §§ 1-2515(a, b), 1-2556(a). Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 2000 D.C. App. LEXIS 89 (2000).

SUMMARY JUDGMENT. Material issues of fact, as to whether rejected prospective tenant who was human immunodeficiency virus (HIV) positive could pay rent, precluded summary judgment that tenant failed to establish prima facie case of disability discrimination in violation of Fair Housing Act and D.C. Human Rights Act. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C. § 3601 et seq.; D.C. Code 1981, § 1-2515. Neithamer v. Brenneman Prop. Servs., 81 F.Supp.2d 1, 1999 U.S. Dist. LEXIS 19747 (1999). Material issues of fact as to whether rental agent consistently applied policy of rejecting prospective tenants with poor credit, and whether agent relayed to landlord rent security proposals made by rejected prospective tenant who was human immunodeficiency virus (HIV) positive, precluded summary judgment that poor credit was nondiscriminatory reason for alleged disability discrimination under Fair Housing Act and D.C. Human Rights Act. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C. § 3601 et seq.; D.C. Code 1981, § 1-2515. Neithamer v. Brenneman Prop. Servs., 81 F.Supp.2d 1, 1999 U.S. Dist. LEXIS 19747 (1999). Material issues of fact, as to degree to which rental agent promised vigorous legal defense if rejected prospective tenant who was human immunodeficiency virus (HIV) positive brought discrimination suit, precluded summary judgment as to whether agent had intimidated or coerced prospective tenant in violation of Fair Housing Act and D.C. Human Rights Act. Civil Rights Act of 1968, § 801 et seq., as amended, 42 U.S.C. § 3601 et seq.; D.C. Code 1981, § 1-2515. Neithamer v. Brenneman Prop. Servs., 81 F.Supp.2d 1, 1999 U.S. Dist. LEXIS 19747 (1999).

TORT CLAIMS. Lessee established claim for civil conspiracy against lessors, in that its valid claim for racial discrimination under the District of Columbia Human Rights Act (DCHRA) was sufficient as underlying tortious act, where lessee alleged Page 10 D.C. Code § 2-1402.21

lessors withheld consent of assignment of retail lease due to proposed assignees' race. D.C. Code 1981, §§ 1-2502(21), 1-2515(a, b), 1-2556. Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 2000 D.C. App. LEXIS 89 (2000).

VENUE. Venue of lawsuit brought by mother with children against real estate development, marketing, and management company, was proper in District of Columbia, which alleged that company discriminated against her due to her familial status in violation of Fair Housing Act (FHA) and District of Columbia Human Rights Act (DCHRA), where company targeted marketing and advertising efforts to District of Columbia. Liban v. Churchey Group II, L.L.C., 305 F.Supp.2d 136, 2004 U.S. Dist. LEXIS 2776 (2004).

WEIGHT AND SUFFICIENCY OF EVIDENCE. Owner of federally subsidized low-income housing complex did not make prima facie showing of elevator manufacturer's intent to discriminate against residents of complex, virtually all of whom were black, through its refusal to deal with complex owners regarding service of elevators in complex, and manufacturer's proffered reasons for not responding to complex's prior demands for service were legitimate and not pretextual; refusal to deal came after receipt of highly inflammatory letters from complex principal, manufacturer's employees feared working at complex, and manufacturer had had problems collecting payment for services at complex. 42 U.S.C. §§ 1981, 1982. Clifton Terrace Assoc., Ltd. v. United Technologies Corp., 929 F.2d 714, 1991 U.S. App. LEXIS 5392 (C.A.D.C. 1991). Page 1

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DISTRICT OF COLUMBIA OFFICIAL CODE Copyright 2013 by the District of Columbia

*** CURRENT THROUGH APRIL 1, 2013, AND THROUGH D.C. ACT 19-658. ***

DIVISION I. GOVERNMENT OF DISTRICT TITLE 2. GOVERNMENT ADMINISTRATION CHAPTER 14. HUMAN RIGHTS UNIT A. HUMAN RIGHTS LAW SUBCHAPTER II. PROHIBITED ACTS OF DISCRIMINATION PART C . HOUSING AND COMMERCIAL SPACE.

D.C. Code § 2-1402.23 (2013)

§ 2-1402.23. Acts of discrimination by broker or salesperson

Any real estate broker or real estate salesperson who commits any act of discrimination prohibited under the provisions of this chapter, if such act or the property involved is within the District of Columbia, or if such act occurs outside of the District of Columbia, in a place where such act is prohibited by state or local law, ordinance or regulation, without regard to location of the property, shall be considered by the Real Estate Commission, for the purposes of Chapter 17 of Title 42, as having endangered the public interest; and shall be subject to the procedures set forth in § 2-1403.17.

HISTORY: Dec. 13, 1977, D.C. Law 2-38, title II, § 223, 24 DCR 6038; Mar. 10, 1983, D.C. Law 4-209, § 35(a)(2), 30 DCR 390.

NOTES: PRIOR CODIFICATIONS. --1981 Ed., § 1-2517. 1973 Ed., § 6-2233.

LEGISLATIVE HISTORY OF LAW 2-38. --For legislative history of D.C. Law 2-38, see Historical and Statutory Notes following § 2-1401.01.

LEGISLATIVE HISTORY OF LAW 4-209. --Law 4-209 was introduced in Council and assigned Bill No. 4-230, which was referred to the Committee on Housing and Economic Development. The Bill was adopted on first and second readings on November 16, 1982, and December 14, 1982, respectively. Signed by the Mayor on December 28, 1982, it was assigned Act No. 4-299 and transmitted to both Houses of Congress for its review. Page 1

1 of 1 DOCUMENT

DISTRICT OF COLUMBIA OFFICIAL CODE Copyright 2013 by the District of Columbia

*** CURRENT THROUGH APRIL 1, 2013, AND THROUGH D.C. ACT 19-658. ***

DIVISION I. GOVERNMENT OF DISTRICT TITLE 2. GOVERNMENT ADMINISTRATION CHAPTER 14. HUMAN RIGHTS UNIT A. HUMAN RIGHTS LAW SUBCHAPTER II. PROHIBITED ACTS OF DISCRIMINATION PART C . HOUSING AND COMMERCIAL SPACE.

D.C. Code § 2-1402.24 (2013)

§ 2-1402.24. Exceptions

(a) Nothing in this chapter is to be construed to apply to the rental or leasing of housing accommodations in a building in which the owner, or members of his family occupy one of the living units and in which there are, or the owner intends that there be, accommodations for not more than:

(1) Four families, and only with respect to a prospective tenant, not related to the owner-occupant, with whom the owner-occupant anticipates the necessity of sharing a kitchen or bathroom; or

(2) Two families living independently of each other.

(b) Nothing contained in the provisions of this chapter shall be deemed to permit any rental or occupancy otherwise prohibited by any statute, or by any regulation previously enacted and not repealed herein.

(c) Nothing in this chapter shall apply to the sale or rental of a single-family home sold or rented by an owner if:

(1) The owner does not own more than 3 single-family homes at any one time; or own any interest in, or has owned or reserved on his behalf, under any express or voluntary agreement, title to any right to all or a portion of the proceeds from the sale or rental of more than 3 single-family homes at any one time. This exemption shall apply only to one sale within a 24-month period of the sale of any single-family home by a private owner not residing in that home at the time of the sale or who was not the most recent resident of that home prior to the sale.

(2) The home was sold or rented without:

(A) The use of the sales or rental facilities or services of a real estate broker, agent, or salesperson, or of the facilities or services of any person in the business of selling or renting dwellings, or of any employee or agent, or Page 2 D.C. Code § 2-1402.24

salesperson; and

(B) Without the publication, posting or mailing, after notice, of any advertisement in violation of § 2-1402.21(a)(5).

HISTORY: Dec. 13, 1977, D.C. Law 2-38, title II, § 224, 24 DCR 6038; Apr. 20, 1999, D.C. Law 12-242, § 2(e), 46 DCR 952.

NOTES: PRIOR CODIFICATIONS. --1981 Ed., § 1-2518. 1973 Ed., § 6-2234.

LEGISLATIVE HISTORY OF LAW 2-38. --For legislative history of D.C. Law 2-38, see Historical and Statutory Notes following § 2-1401.01.

LEGISLATIVE HISTORY OF LAW 12-242. --For legislative history of D.C. Law 12-242, see Historical and Statutory Notes following § 2-1401.01. 1000 GENERAL PROVISIONS: SCOPE AND PURPOSES

1000.1 This chapter shall apply, with specifically defined exceptions, to all transactions in real estate pertaining to dwelling and commercial space accommodations within the District of Columbia.

1000.2 The D.C. Office of Human Rights (“OHR”) shall adopt this chapter for the following purposes:

(a) To provide for fair housing throughout the District of Columbia to all its residents regardless of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, familial status, matriculation, disability, source of income, and place of residence or business; and to that end to prohibit discriminatory practices with respect to residential housing or commercial space accommodations by any person or group of persons, in order that the peace, health, safety, prosperity, and general welfare of all the residents of the District of Columbia may be protected and ensured;

(b) To facilitate the Office of Human Rights in carrying out its mandate under the District of Columbia Human Rights Act of 1977, as amended (hereinafter referred to as “the Act”), and specifically §§ 221 through 224 of the Act (D.C. Official Code §§ 2-1402.21 through 2-1402.24 (2001));

(c) To notify interested and affected persons as to the Office of Human Rights’ interpretation of the housing and commercial space provisions of the Act as pertaining to the implementation of its mandate under the Act; to specify the application of the housing and commercial space provisions to specific circumstances; and to establish principles of interpretation for guidance in other circumstances; and

(d) To facilitate the Office of Human Rights’ internal processing of cases relating to discrimination in housing and commercial space accommodations.

AUTHORITY: Unless otherwise noted, the authority for this chapter is §§ 221 to 224 and 301(c) of the District of Columbia Human Rights Act of 1977, effective December 13, 1977, D.C. Law 2-38, D.C. Official Code §§ 2-1402.21 to -1402.24, -1403.01(c)(2001) and Mayor's Order 89-247 (November 1, 1989).

SOURCE: Final Rulemaking published at 35 DCR 5464 (July 15, 1988); as amended by Final Rulemaking published at 46 DCR 4339 (May 14, 1999), incorporating by reference the text of Final Rulemaking published at 46 DCR 2817 (March 19, 1999).

1001 PROHIBITED PRACTICES

1001.1 It shall be an unlawful discriminatory practice for any person, on the basis of the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, familial status, matriculation, disability, source of income, or place of residence or business of any individual, to do the following:

(a) Refuse to sell or rent or to negotiate for the sale or rental of a dwelling or commercial space or otherwise to make a dwelling or commercial space unavailable;

(b) Discriminate in the terms or conditions of a transaction in real property, including but not limited to a transaction involving the buying or renting of a dwelling or commercial space;

(c) Make, print, publish, or cause to be made, printed, or published any statement or advertisement with respect to the sale or rental of a dwelling indicating a limitation on, or a preference for, or an intention to make any such preference, limitation, or discrimination against persons on the basis of race, color, sex, religion, national origin, marital status, personal appearance, sexual orientation, family responsibilities, familial status, disability, place of residence or business, or source of income. Prohibited discrimination may take the form of:

(1) A word, phrase, photograph, illustration, symbol or form indicating availability or unavailability;

(2) An expression to an agent, broker, employee, prospective seller or renter, or any other person of a preference for or limitation on any purchaser or renter for a prohibited reason;

(3) Selecting a medium or location for advertising the sale or rental of a dwelling that denies information about housing opportunities to a particular segment of the housing market; or

(4) Refusing to publish advertising for the sale or rental of a dwelling or requiring different charges or terms for such advertising.

(d) Represent that a dwelling is unavailable for inspection, sale, or rental when, in fact, it is available, or similarly to fail to disclose or offer to show all properties listed or held for sale or rent within a requested price or rental range, regardless of location. Prohibited practices include, but are not limited to:

(1) Providing inaccurate or untrue information about the availability of a dwelling for sale or rental to any person, including a tester, based on one of the proscribed criteria;

(2) Enforcing a covenant or other deed, trust, or lease provision that precludes the sale or rental of a dwelling on such basis; and

(3) Limiting information, by word or conduct, regarding suitably priced dwellings available based on one of the proscribed criteria.

(e) Include in any document related to a transaction in real property any restrictive covenant purporting to restrict occupancy or ownership of real property;

(f) Designate any block, neighborhood, or area of the District of Columbia as unsuitable for the making of mortgage loans, or reject applications for mortgage loans, or vary the terms of a mortgage loan upon property within that block, neighborhood, or area;

(g) Deny a loan or other financial assistance; refuse to guarantee, extend, or renew a loan; refuse to accept a deed of trust or mortgage; or otherwise refuse to make funds available for the purchase, acquisition, construction, alteration, rehabilitation, repair, maintenance of real property; to impose different terms or conditions on the financing or failing or refusing to provide information regarding the availability of loans or other financial assistance, application requirements, procedures or standards for review and approval of loans or other financial assistance or providing inaccurate information;

(h) Refuse to provide title insurance or other insurance relating to the ownership or use of any interest in real property, or to vary the terms or premiums of the insurance;

(i) Discriminate in appraising the value of real estate or in the fixing of any appraisal fee;

(j) Act as real estate broker, salesperson, or agent, including a rental agent, with respect to any transaction in real estate, which requires the broker, salesperson, or agent to discriminate on a prohibited basis. This shall include entering into a listing agreement which has the effect or purpose of discriminating on a prohibited basis;

(k) Deny any person access to or membership or participation in any multiple- listing service, real estate broker’s organization, or other service, organization, or facility relating to the business of selling or renting real property, or to discriminate against any person in the terms and conditions of such access, membership, or participation. Prohibited actions include:

(1) Setting different fees for access to or membership in a multiple listing service;

(2) Denying or limiting benefits accruing to members in a real estate brokers’ organization;

(3) Imposing different standards or criteria for membership in a real estate sales or rental organization; or

(4) Establishing geographic boundaries or office location or residence requirements for access to or membership or participation in a multiple listing service, real estate brokers’ organization or other service, organization or facility relating or the business of selling or renting dwellings.

(l) Discriminate in furnishing repairs, improvements, or any related services to a tenant or lessee in connection with real property;

(m) Solicit or to cause to be made, in connection with any transaction in real property, any written or oral inquiry or record concerning a prohibited basis, except inquiries or records made or kept in connection with a legitimate business purpose. Inquiries regarding source of income shall be made only to verify an applicant’s total lawful income;

(n) Employ a prohibited basis in determining whether a person satisfies any occupancy, admission, enrollment, eligibility, membership, or other requirement or condition which applicants must satisfy respecting any transaction in real property;

(o) Engage in any of the following credit practices in connection with a transaction in real property:

(1) Deny credit to an applicant or class of applicants where other applicants of like overall credit worthiness are granted credit;

(2) Impose special requirements or conditions upon an applicant or class of applicants, such as requiring co-obligors or larger than usual down-payments, where similar requirements or conditions are not imposed upon applicants of like overall credit worthiness;

(3) Impose credit terms or conditions which unintentionally have a discriminatory effect, and which cannot be justified by business necessity;

(4) Refuse to consider all lawful sources of an applicant’s income in evaluating an applicant’s credit worthiness and income eligibility; or

(5) Employ a prohibited basis in a decision to grant, withhold, extend, or renew credit, or in the fixing of credit lines or rates, or of the terms or conditions of credit;

(p) Restrict or limit the number of occupants using any real property, except in accordance with health, safety, and other regulations promulgated by an authorized agency of the District of Columbia government; or

(q) Coerce, intimidate, threaten, interfere with, or otherwise harass anyone exercising or encouraging others to exercise their rights granted under the Act or this chapter in the ownership, occupancy, or leasing of any real property; or to retaliate or discriminate against any person because he or she has opposed any practice forbidden under this chapter or the Act, or because he or she has filed a complaint, testified, or assisted in any proceeding under the Act.

(r) For profit, induce or attempt to induce a person to sell or rent a dwelling by representations regarding the entry or prospective entry into a neighborhood. It is not necessary that there was in fact profit as long as profit was a motivating factor. Prohibited actions include:

(1) Engaging in conduct that conveys the impression that a neighborhood is undergoing or is about to undergo a change in order to encourage the person to offer a dwelling for sale or rental; or

(2) Encouraging any person to sell or rent a dwelling through assertions that the entry or prospective entry of person can or will result in the undesirable consequences for the project, neighborhood, or community such as the following:

(i) A lowering of property values in an area;

(ii) An increase in criminal or antisocial behavior in an area;

(iii) A decline in the quality of schools and other public services in an area;

(iv) A material change in the racial or ethnic composition of an area;

(v) A decrease in the desirability of occupying property in an area.

(s) To make, print or publish, or cause to be made, printed or published, a discriminatory notice, statement or advertisement, which includes, but is not limited to:

(1) using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons;

(2) expressing to agents, brokers, employees, prospective sellers or renters or any other persons a preference for or limitation of any purchaser or renter;

(3) selecting media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities;

(4) refusing to publish advertising for the sale or rental of dwellings requiring different charges or terms for such advertising.

(t) Discriminate in the purchasing of loans. Unlawful conduct includes but is not limited to:

(1) Purchasing loans or other debts or securities which relate to, or which are secured by dwellings in certain communities or neighborhoods but not in others because of race, color, religion, sex, age, national origin, marital status, disability, family responsibilities, familial status, personal appearance, sexual orientation, matriculation, source of income, and place of residence or business;

(2) Pooling or packaging loans or other debts or securities which relate to or which are secured by, dwellings differently because of race, color, religion, sex, age, national origin, marital status, disability, family responsibilities, familial status, personal appearance, sexual orientation, matriculation, source of income, and place of residence or business;

(3) Imposing or using different terms or conditions on the marketing or sale of securities issued on the basis of loans or other debts or securities which relate to, or which are secured by dwellings because of race, color, religion, sex, age, national origin, marital status, disability, family responsibilities, familial status, personal appearance, sexual orientation, matriculation, source of income, and place of residence or business;

1001.2 It shall be an unlawful discriminatory practice to engage in any act prohibited in the Act or this chapter wholly or partially based on the fact that a person has one or more children who reside with that person.

1001.3 There shall be a rebuttable presumption that an unlawful discriminatory practice has occurred if the person alleging discrimination has one or more children who reside with that person and any of the acts prohibited in the Act or this chapter are done to maintain residential occupancies more restrictive than the following:

(a) In an efficiency apartment, two persons; or

(b) In an apartment with one or more bedrooms, two times the number of bedrooms plus one.

1001.4 When occupancy limitations are imposed, the presumption of discrimination referred to in § 221 of the Act (D.C. Official Code § 2-1402.22(c)(2) (2001)) may be overcome by demonstrating that occupancy limitations are in accord with District of Columbia regulations or law in effect at the time the occupancy limitations were imposed.

1001.5 It shall be an unlawful discriminatory practice to make any representation, whether explicit or implicit, with the intent or effect of restricting or limiting the housing choice of any person, in connection with seeking, negotiating for, buying, or renting a dwelling, that, on account of a prohibited basis, discourages any person from inspecting, purchasing, or renting a dwelling by, but is not limited to, conduct:

(a) exaggerating drawbacks or not informing any person of desirable features of a community, neighborhood, or development;

(b) communicating that any prospective purchaser would not be comfortable or compatible with existing residents of a community, neighborhood, or development; or

(c) assigning any person to a particular section of a community, neighborhood or development.

1001.6 It shall be unlawful to make an inquiry to determine whether an applicant for a dwelling, a person intending to reside in that dwelling after it is so sold, rented or made available, or any person associated with that person, has a disability or to determine the nature or severity of any disability, except that the following inquiries are not prohibited if these inquiries are made of all applicants, regardless of disability:

(a) Inquiry into an applicant’s ability to meet the requirements of ownership or tenancy;

(b) Inquiry to determine whether an applicant is qualified for a dwelling available only to persons with disabilities or the persons with a particular type of disability;

(c) Inquiry to determine whether an applicant for a dwelling is qualified for a priority available to persons with disabilities or to persons with a particular type of disability;

(d) Inquiry whether an applicant for a dwelling is a current alleged abuser or addict of a controlled substance; or

(e) Inquiry whether an applicant has been convicted of the illegal manufacture or distribution of a controlled substance.

1001.7 It shall be an unlawful discriminatory practice for any person to refuse to permit, at the expense of a disabled person, reasonable modifications of existing premises, occupied by or to be occupied by a disabled person, if the proposed modifications may be necessary to afford the disabled person full enjoyment of the premises of a dwelling. The following provisions apply with respect to rental property:

(a) A landlord may, where it is reasonable to do so, condition permission for a modification on the renter agreeing to restore the premises to the condition that existed prior to the modification;

(b) A landlord may not increase for disabled persons any required security deposits; and

(c) A landlord may condition permission for modification on the renter providing a reasonable description of the proposed modifications as well as assurances that the work will be completed in a workmanlike manner.

1001.8 It shall be an unlawful discriminatory practice to engage in conduct relating to the provision of housing or of services related to the provision of housing that, on account of a prohibited basis, results in the following:

(a) Discharging or taking other adverse action against an employee because he or she refused to participate in discriminatory housing practice;

(b) Employing codes or other devices to segregate or reject applicants, purchasers, or renters, refusing to take or to show listings of dwellings , or refusing to deal with certain brokers or agents because they or their clients are of a particular race, color, religion, national origin, sex, age, marital status, disability, or familial status or because of family responsibilities, personal appearance, sexual orientation, matriculation, source of income, or place of residence or business;

(c) Denying or delaying the processing of an application made by a purchaser or renter or refusing to approve such a person for occupancy in a cooperative or on a prohibited basis.

SOURCE: Final Rulemaking published at 35 DCR 5464, 5465 (July 15, 1988); as amended by Final Rulemaking published at 46 DCR 4339 (May 14, 1999), incorporating by reference the text of Proposed Rulemaking published at 46 DCR 2817, 2817-23 (March 19, 1999).

1099 DEFINITIONS

1099.1 When used in this chapter, the following terms and phrases shall have the meaning ascribed:

Commercial space - any building, structure, or designated portion thereof which is occupied as, or designed or intended for, occupancy as an accommodation for business activity, and any vacant land which is offered for sale or lease for the construction or location thereon of any building, structure, or portion of the building or structure.

Dwelling - any building, structure, or portion of the building or structure, including a or apartment, which is occupied as, or designed or intended for occupancy as, a residence by one or more families or business entities, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.

Familial status - has the same meaning found in § 102 of the Act (D.C. Code § 1-2502).

Family - a single individual or two or more related or unrelated persons who share a dwelling.

Owner - has the same meaning as found in § 102 of the Act (D.C. Official Code § 2-1401.02 (2001)).

Owner’s family - the owner’s spouse, the owner’s children, and the parents of the owner and the owner’s spouse.

Person - has the same meaning as found in § 102 of the Act (D.C. Official Code § 2-1401.02(21) (2001)).

Prohibited basis - any one or a combination of the following: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business of any individual.

Real Property - land and generally whatever is erected or affixed to the land, including and cooperatives.

Restrictive covenant - any written statement in a deed or other document related to the transfer of an interest in real property purporting to limit transfer, sale, or rental on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, matriculation, political affiliation, physical handicap, source of income, and place of residence or business of any individual.

Sale - a transaction in real property where there is a transfer of ownership of and title to real property from one person to another for consideration.

Source of income - has the same meaning as found in § 102 of the Act (D.C. Official Code § 2-1401.02(29) (2001)).

To rent - leasing, subleasing, to let, or otherwise to grant for a consideration the right to occupy premises not owned by the occupant.

Transaction in real property - has the same meaning as found in § 102 of the Act (D.C. Official Code § 2-1401.02(30) (2001)).

SOURCE: Final Rulemaking published at 35 DCR 5464, 5469 (July 15, 1988); as amended by Final Rulemaking published at 46 DCR 4339 (May 14, 1999), incorporating by reference the text of Proposed Rulemaking published at 46 DCR 2817, 2824 (March 19, 1999).

6000 SCOPE

6000.1 The purpose of this chapter of the DCMR is to establish criteria and procedures for licensing foster homes for abused or neglected children.

6000.2 This chapter of the DCMR shall apply to:

(a) Any foster home that is located within the District of Columbia and which serves children in the care and custody of CFSA, including any foster home which is operated by a child-placing agency other than CFSA; and

(b) Any CFSA foster home located in another jurisdiction.

6000.3 The provisions of 29 DCMR §§ 1639, 1640, 1641, 1644.2 and 1644.3 do not apply to the foster homes to which this chapter of the DCMR applies.

6000.4 CFSA is responsible for the implementation of this chapter of the DCMR. Copies of this chapter of the DCMR shall be available from CFSA upon request.

6000.5 The Director of Child and Family Services Agency or his or her designee, upon written application and for good cause, may waive any provision of this chapter for licensing of kin that does not adversely affect child safety.

SOURCE: Final Rulemaking published at 48 DCR 6617 (July 27, 2001); as amended by Final Rulemaking published at 54 DCR 7232 (July 27, 2007); as amended by Final Rulemaking published at 59 DCR 10669 (September 7, 2012).

6001 FOSTER PARENT REQUIREMENTS

6001.1 An agency shall select and maintain as foster parents individuals who have the following characteristics:

(a) Knowledge of, interest in, and regard for the principles of good child care and understanding of the foster parent's responsibility in providing care for a foster child;

(b) The willingness to work with CFSA and agency personnel in the best interest of the foster child;

(c) Maturity and personality characteristics which:

(1) Make it possible to provide an emotional climate in which a foster child can benefit during temporary care;

(2) Create an atmosphere in which social skills can be enriched;

(3) Help a foster child to understand placement in foster care and the child's own feelings about the placement; and

(4) Help maintain family ties through regular and consistent family contact in accordance with a foster child's case plan;

(d) The flexibility to understand and work with lifestyles different from the foster parent's;

(e) The capacity to value, respect, appreciate, and educate a foster child regarding the child's racial, ethnic, religious, and cultural heritage;

(f) The capacity to understand that it is in the best interest of a foster child of mixed racial parentage to have healthy multiracial experiences;

(g) The suitability and stamina to meet the demands of caring for growing foster children;

(h) The willingness to support and encourage a foster child's educational progress, and take an active role by attending school conferences and similar activities whenever possible;

(i) The ability to give a foster child the needed care and attention;

(j) The ability to provide a nurturing family life and meet the needs of a foster child, notwithstanding any employment outside the home; and

(k) Awareness of the way in which a child needs family life to grow and learn, and the ability to provide a foster child with the skills and values which a parent customarily provides.

6001.2 A foster parent shall be at least twenty-one (21) years of age.

6001.3 A foster parent and all household members shall be in good health as documented by a health examination within the previous twenty-four (24) months.

6001.4 If a foster parent or household member has symptoms or a history of physical or mental health problems or has recently been under the care of a physician for either of the above, CFSA or the agency may require the individual to:

(a) Undergo additional medical examinations of a general or specific nature; or

(b) Provide a written statement by the examining or treating physician to the effect that the health problem poses no threat to the foster child.

6001.5 A foster parent and all household members shall be free of disease in communicable form, as certified by a physician. Each child in the household shall be in compliance with the immunization requirements of the jurisdiction in which the foster home is located.

6001.6 A foster parent shall have sufficient family income to meet the reasonable living needs of his or her own family without relying on foster care board and care payments.

6001.7 A criminal records check and a child protection register clearance shall be performed as set forth in §§ 6008 and 6009.

6001.8 A foster parent shall possess current American Red Cross Standard First Aid and infant, adult, and child Cardio-Pulmonary Resuscitation (CPR) certifications before being licensed to care for a foster child.

6001.9 The CPR and American Red Cross Standard First Aid certification training shall be approved by the American Red Cross, American Heart Association or the District of Columbia Department of Health.

SOURCE: Final Rulemaking published at 48 DCR 6617 (July 27, 2001); as amended by Final Rulemaking published at 59 DCR 10669 (September 7, 2012).

6002 FOSTER PARENT RESPONSIBILITIES

6002.1 A foster parent shall:

(a) Provide parental supervision and guidance appropriate to the foster child's age and developmental level;

(b) Provide daily essentials that are required for the health, comfort, and good grooming of a foster child, including:

(1) A nutritionally balanced diet adequate for the foster child's needs in growth and development;

(2) Adequate shelter; and

(3) Clothing proper for the season;

(c) Help the foster child cope with the anxiety of being away from his or her family, and promote the child's self-esteem and positive self-image;

(d) Respect the foster child and the foster child's family;

(e) Be sensitive to and respect the foster child's individual needs, tastes, and values, and support the foster child's religious beliefs and cultural customs;

(f) Involve the foster child in household activities;

(g) Establish clear expectations for and limits on behavior, understand and deal with negative behavior in a positive way, and reward good behavior;

(h) Provide or arrange transportation to and from normal daily activities, including school, appointments, sports, family visitation, social, religious, ethnic, and cultural events, and other appointments as necessary and as set forth in the foster child's case plan;

(i) Participate in the foster child's educational process;

(j) Participate in the foster child's mental, physical, and dental health care, and request and maintain a copy of a record from each health care visit;

(k) Have a plan for the substitute care and supervision of each foster child by a licensed foster parent or day care provider, or the equivalent in the jurisdiction in which that substitute care is provided, when the foster parent is absent from the home on a regular basis, such as for employment;

(l) Use baby-sitters who are sixteen (16) years of age or older. Babysitters shall be used for a reasonable amount of time, considering the age and level of functioning of the foster child;

(m) Utilize only substitute caregivers and babysitters in whom the foster parent has confidence that the person can appropriately care for the foster child;

(n) Give at least 10 business days notice to the agency when requesting removal of a foster child except in circumstances that are critical to the health and safety of the foster child or other household member;

(o) Immediately report to CFSA and the agency any suspected incident of child abuse or neglect;

(p) Abide by the rules on discipline and control as set forth in § 6018;

(q) Notify CFSA and the agency of any criminal charges, investigations, or findings related to any crime alleged to have been committed by a household member;

(r) Assist in preparing the foster child to accept her or his permanency plan and any move from the foster home; and

(s) Maintain the confidentiality of information about the foster child and the foster child's family in accordance with § 6023.

6002.2 A foster parent, in accordance with a foster child's case plan, shall:

(a) Assist the agency in maintaining and improving the foster child's relationship with her or his family, and support this relationship by helping with family visits, which may include visits in the foster home;

(b) Maintain an attitude of respect and understanding towards the foster child's parents and family;

(c) Tell the foster child's parents about events and happenings in the foster child's daily life;

(d) Serve as a role model for the foster child's parents; and

(e) Transmit information about the foster child or the foster child's family only in accordance with §§ 6002.2(c) and 6023.

6002.3 A foster parent shall fulfill her or his obligations to the agency by:

(a) Participating in training required and approved by the agency;

(b) Working as a team member in assessing a foster child's strengths and needs, and in implementing the foster child's case plan;

(c) Keeping the agency aware of the foster child's development and adjustment;

(d) Attending case reviews and meetings as requested by the agency;

(e) Maintaining the standards of foster care required by this chapter of the DCMR;

(f) Notifying the agency for any overnight trips of more than one hundred (100) miles from the District or Columbia that the foster parent would like the foster child to take; and

(g) Notifying the agency immediately of any change or anticipated change for the foster parent or within the foster home concerning:

(1) Employment;

(2) Child care arrangements;

(3) Composition of the household;

(4) Finances;

(5) Residence or telephone number;

(6) Health status;

(7) Marital status; or

(8) Any other change which may affect the stability of the foster home or of the foster child's placement in the foster home.

6002.4 A foster parent may not provide care for an adult household member who needs assistance with at least three (3) activities of daily living unless:

(a) CFSA has determined in writing that the care of the foster child is not affected; and

(b) The care is for either a relative of the foster parent, or a current or former foster child who is eighteen (18) years of age or older, or another adult with whom the foster parent has close personal or emotional ties.

6002.5 A foster parent may not provide child day care unless CFSA has determined in writing that the foster parent has the physical and emotional strength to be responsible for the day care of one (1) or more children, in addition to what is needed for care and supervision of each foster child in the home.

6002.6 Nothing is this Chapter shall be construed to preclude a foster parent from permitting a foster child to visit with the foster parent's family or friends.

SOURCE: Final Rulemaking published at 48 DCR 6617 (July 27, 2001).

6004 RIGHTS AND RESPONSIBILITIES OF FOSTER CHILDREN LIVING IN FOSTER HOMES

6004.1 A foster child living in a foster home has the right to:

(a) Have her or his health, safety, and welfare be the primary consideration in implementing these rules;

(b) Be consulted about or informed of all decisions made on his or her behalf as appropriate to the foster child's age;

(c) Safety and protection;

(d) Opportunities to develop emotionally, socially, physically, educationally, culturally, and spiritually in a nurturing environment;

(e) Information about the reason for the foster child's placement, and help in developing an explanation of the foster child's situation to others;

(f) Help in dealing with the effects of separation;

(g) Opportunities for continued connection with the foster child's family and others with whom the foster child has had meaningful relationships, unless such a connection would be harmful to the child's health or safety; and

(h) Return to the foster child's family or be placed in another permanent placement as expeditiously as possible consistent with the foster child's case plan.

6004.2 A foster child living in a foster home is responsible for:

(a) Keeping his or her room and possessions in good order and completing assigned daily or weekly chores, consistent with the foster child's age and level of development;

(b) Attending school or other alternate education or training programs, if the foster child is of school age; and

(c) Following appropriate minimum personal care and hygiene standards consistent with the foster child's physical and developmental capabilities.

6004.3 Nothing in this section of the DCMR shall be read to limit any other right, privilege, or opportunity provided to a foster child under this chapter of the DCMR or any other provision of law or policy.

SOURCE: Final Rulemaking published at 48 DCR 6617 (July 27, 2001).

6017 CLOTHING AND PERSONAL BELONGINGS

6017.1 A foster parent shall provide each foster child with his or her own clean, well-fitting, attractive, and seasonal clothing appropriate to the foster child's age, gender, and individual needs, and comparable to community standards. The purchase of this clothing shall come from the money allotted within the foster care board and care payments.

6017.2 A foster parent shall permit the foster child to choose her or his own clothing whenever possible.

6017.3 A foster parent shall allow each foster child to bring and acquire personal belongings, and shall provide reasonable and private child-accessible space for storage.

6017.4 A foster parent shall send all personal clothing and belongings with each foster child when the foster child leaves the foster home. A foster parent may not keep any clothing when a foster child leaves the foster home unless the clothing is clearly too small for the foster child and would not fit a sibling who is in placement with the foster child.

6017.5 Each foster child shall have sufficient suitcases, backpacks, or trunks for the transportation of the foster child's personal clothing and belongings. CFSA shall ensure that each foster child has sufficient containers to hold all of the foster child's clothes and belongings when the foster child is placed in the foster home. The foster parent shall ensure that the foster child leaves the foster home with sufficient containers to hold all of the foster child's clothes and belongings.

6017.6 A foster parent shall maintain an annual updated clothing inventory for each foster child in her or his care.

SOURCE: Final Rulemaking published at 48 DCR 6617 (July 27, 2001).

6018 DISCIPLINE AND CONTROL

6018.1 A foster parent shall teach and guide each foster child with techniques that stress praise and encouragement.

6018.2 Discipline shall be appropriate to the age and handicapping condition, if any, of the foster child.

6018.3 A foster parent shall establish well-defined rules that set the expectations for and the limits of behavior.

6018.4 No foster parent shall subject a child to physical, emotional, or verbal abuse, derogatory remarks about the child or family members, or threats of removal from the foster home.

6018.5 A foster parent shall not use forms of discipline that involve cruel, severe, or humiliating actions, including, but not limited to:

(a) Physical punishment inflicted in any manner upon the body;

(b) Denial of balanced nutrition, clothing, or shelter;

(c) Denial of visits, telephone calls, or mail contact with family members, social workers, or attorneys; and

(d) Assignment of strenuous exercise or work to the point of endangering the health of the child.

6018.6 A foster parent shall not punish a child for bed-wetting or any action regarding toilet training.

6018.7 A foster parent shall take steps to ensure that any other person providing care to a foster child adheres to the requirements of this section.

SOURCE: Final Rulemaking published at 48 DCR 6617 (July 27, 2001).

6023 CONFIDENTIALITY

6023.1 A foster parent shall maintain the confidentiality of all information about a foster child and the foster child's family. A foster parent may transmit information about a foster child or the foster child's family only in accordance with District law:

(a) To CFSA and its representatives;

(b) To the agency and its representatives;

(c) The foster child's parent pursuant to § 6002.2(c);

(d) To the foster child's attorney;

(e) To the foster child's guardian ad litem;

(f) To the parent's attorney;

(g) As authorized by CFSA or the agency in order to provide services to the foster child and in accordance with § 6023;

(h) As necessary for the provision of medical, mental health, or educational services; and

(i) In accordance with a court order.

SOURCE: Final Rulemaking published at 48 DCR 6617 (July 27, 2001).

6025 VIOLATION OF THIS CHAPTER

6025.1 Any agency employee who receives information concerning or makes a personal observation of a violation of this chapter of the DCMR that is not required to be reported to CFSA pursuant to § 6024 shall immediately notify the agency.

6025.2 Upon receiving notification pursuant to § 6025.1, the agency shall immediately investigate. The investigation shall include, as appropriate, unannounced visit(s) to the foster home, interview(s) with any foster child in the foster home, and interview(s) with the foster parent.

6025.3 If an investigation undertaken pursuant to § 6025.2 indicates possible abuse, neglect, or another risk to a foster child's health or safety, the agency shall immediately notify CFSA as required by § 6024.

6025.4 The agency shall notify CFSA of both the notification required by § 6025.1 and the results of the investigation required by § 6025.2 within ten (10) business days after the notification.

6025.5 If the information provided to CFSA indicates possible abuse, neglect, or another risk to a foster child's health or safety, CFSA shall proceed in accordance with §§ 6024 and 6030.

6025.6 The provisions of this section are in addition to the requirements of law for the reporting and investigation of suspected child abuse and neglect in the District of Columbia and, if different, in the jurisdiction in which the foster home is located.

SOURCE: Final Rulemaking published at 48 DCR 6617 (July 27, 2001).

6201 STATEMENT OF PURPOSE

6201.1 The purpose of this Chapter is to provide for the health, safety, and welfare of children who are receiving care in a youth shelter, runaway shelter, emergency care facility, or youth group home through the formulation, application, and enforcement of minimum standards and requirements for the licensing and operation of facilities serving children. Nothing shall prevent the contracting entity from imposing more stringent standards by contract.

6201.2 Providing for the health, safety, and welfare of children in youth residential facilities requires a collaboration between the facility, the licensing agency, and the contracting entity.

6201.3 Ensuring the health, safety, and welfare of children in youth residential facilities requires the placement of children in facilities serving children of similar ages, levels of development, and clinical needs in the least restrictive, most normative environment that is clinically appropriate.

AUTHORITY: Unless otherwise noted, the authority for this chapter is the Youth Residential Facilities Licensure Act of 1986, D.C. Law 6-139, D.C. Code, 2001 Ed. § 7-2103(a)(1); and Mayor’s Order 86-202 (November 12, 1986).

SOURCE: Final Rulemaking published at 48 DCR 8675, 8678 (September 21, 2001).

6203 STATEMENT OF RESIDENTS' RIGHTS AND RESPONSIBILITIES

6203.1 The facility shall conspicuously post the "Statement of Residents' Rights and Responsibilities" in the facility. This statement shall include all of the residents' rights and responsibilities contained in this section.

6203.2 A resident has the right to be treated with fairness, dignity, and respect.

6203.3 A resident has the right to receive appropriate and reasonable adult guidance, support, and supervision, consistent with the resident's age and level of development.

6203.4 A resident shall not be abused, mistreated, threatened, harassed, or subjected to corporal punishment or to other unusual or extreme methods of discipline.

6203.5 A resident has the right to have his or her opinion heard and to be included, to the greatest extent possible, and consistent with the resident's age and level of development, when any major decisions, including regular case planning meetings, are being made affecting his or her life.

6203.6 A resident has the right to reasonable and clinically appropriate visitation, mail, and telephone communication with relatives, friends, significant others, attorneys, social workers, therapists, and guardians ad litem.

6203.7 A resident has the right to have his or her relatives and designated representatives, who are authorized in writing by the contracting entity, to communicate with the facility, ask questions of the facility, and have their questions answered promptly by the facility.

6203.8 A resident has the right to language translation, if necessary.

6203.9 In accordance with the District of Columbia Human Rights Act of 1977, as amended, effective December 13, 1977, D.C. Law 2-38, D.C. Code section 1-2501 et. seq., a resident shall not be discriminated against on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, familial status, family responsibilities, matriculation, political affiliation, disability, source of income or place of residence or business.

6203.10 A resident shall have all other rights specifically set forth in this Chapter.

6203.11 A resident shall accept responsibility, consistent with his or her age and level of development, for keeping his or her room(s) and possessions in good order and for completing assigned daily or weekly chores.

6203.12 A resident shall comply with the policies and procedures governing his or her conduct.

6203.13 A resident shall participate in the facility's programs and activities.

6203.14 A resident of school age shall attend school or other alternative education programs, except in extenuating circumstances and such circumstances shall be documented in the resident's case record.

6203.15 A resident shall follow appropriate minimum personal care and hygiene standards established by the facility, consistent with each resident's physical and developmental capabilities.

SOURCE: Final Rulemaking published at 48 DCR 8675, 8678 (September 21, 2001).

6205 GRIEVANCE PROCEDURES

6205.1 A grievance is a complaint based upon relations between residents, relations between residents and staff, the facility's programs and physical conditions, the use of discipline, or other issues concerning the resident's care, but not based upon alleged abuse or neglect or alleged criminal activity. A grievance may be brought by a resident or brought on a resident's behalf by his or her representative, parent(s) or guardian(s), attorney, guardian ad litem, or staff. Allegations of abuse or neglect shall be reported pursuant to § 6204. Alleged criminal activity shall be reported to the Police Department.

6205.2 Each facility shall develop and follow a written plan for clear and simple grievance procedures regarding the receipt, consideration, and resolution of grievances.

6205.3 The facility shall post a copy of the grievance procedures in the facility and explain and give a copy to each resident, and to the resident's parent(s) or guardian(s) upon admission.

6205.4 The facility shall obtain a statement signed by each resident, and the resident's parent(s) or guardian(s), acknowledging receipt of a copy of the facility's grievance procedures or documentation of efforts made to obtain the signature.

6205.5 The facility shall ensure that a person filing a grievance is not required to transmit a grievance through the person who is the subject of the grievance.

6205.6 The facility shall ensure against retaliation by staff or by other residents against the person making the grievance and, where the grievance is filed by the resident's representative, parent(s) or guardian(s), attorney, guardian ad litem, or staff, the facility shall ensure against retaliation against the resident.

6205.7 Each facility shall establish and maintain a grievance board composed of at least two staff members and one resident. The grievance board shall resolve all grievances.

6205.8 The facility shall ask each resident filing a grievance or who is the subject of a grievance whether the resident objects to having another resident participate in the resolution of the grievance. If the resident filing the grievance or who is the subject of the grievance objects, no resident shall serve on the grievance board resolving the grievance.

6205.9 Under no circumstances shall the resident making the grievance or who is the subject of the grievance participate on the grievance board. If the resident member of the grievance board makes a grievance or is the subject of a grievance, the facility shall appoint a separate resident to the grievance board to resolve the grievance.

6205.10 The facility shall ensure that a grievance is resolved within fourteen (14) calendar days of the filing of the grievance.

6205.11 The facility shall promptly inform in writing the person filing the grievance and the resident who is the subject of the grievance of the results of the grievance.

6205.12 The facility shall file the written results of the grievance in the case record of the resident who filed or is the subject of the grievance.

6205.13 The facility shall maintain written records of all grievances filed and all grievance decisions and, upon request, shall make those records available to the licensing agency.

SOURCE: Final Rulemaking published at 48 DCR 8675, 8683 (September 21, 2001). 6226 CONFIDENTIALITY

6226.1 A resident's case record is confidential and shall not be disclosed or used other than in the course of official facility duties to provide services to the resident and in such instance shall only be disclosed to the least extent possible, consistent with any court order, the resident's individual service plan, and local and federal law. The facility, licensing agency, contracting entity, guardian ad litem and, where applicable, CSSD shall have access to the resident's case record. No other person shall have access to the resident's case record unless authorized in writing by the licensing agency.

6226.2 The facility shall train all staff on the procedures for maintaining the confidentiality of the residents' case records and information contained therein.

SOURCE: Final Rulemaking published at 48 DCR 8675, 8705 (September 21, 2001).

6227 PRIVACY

6227.1 The facility shall endeavor to provide for a resident's reasonable privacy with respect to his or her person, property, and living quarters.

6227.2 The facility may limit a resident's privacy as reasonably necessary to protect the health, safety, or welfare of the resident or others.

6227.3 The facility shall make reasonable efforts to ensure that the resident's need for medications is kept confidential.

6227.4 The facility shall maintain doors on bedroom areas and bathroom enclosures unless there is a clinical justification for their removal.

6227.5 The facility shall ensure that a resident has reasonable privacy when using the telephone.

6227.6 When the facility limits a resident's use of his or her personal property, the facility shall document its decision and rationale and specify how such limitation is consistent with the resident's individual service plan. The facility shall maintain an inventory of all such personal property, including a description of the condition of the property in its custody as a result of such limitation. The inventory, decision and rationale shall be maintained in the resident's case record. If appropriate, the facility shall return the personal property to the resident upon discharge. The facility shall return the personal property to the resident prior to discharge only if specifically provided in the resident's individual service plan.

6227.7 The facility shall prohibit the use of listening devices for routine observation of residents in their rooms, unless otherwise required by court order.

6227.8 Other than a photograph taken of a resident upon admission into the facility pursuant to § 6257.3(g), the facility shall not create or use any photograph, audio-tape, artwork, or writing of or concerning a Resident without the written authority of the resident, the resident's parent(s) or guardian(s), and the licensing agency or contracting entity, unless otherwise provided by court order. The facility shall not use the photograph taken of a resident upon admission into the facility for public relations or fundraising purposes.

6227.9 A resident shall not participate in a public performance without the written authority of the resident, the resident's parent(s) or guardian(s), and the licensing agency or contracting entity, unless otherwise provided by court order.

SOURCE: Final Rulemaking published at 48 DCR 8675, 8705 (September 21, 2001).

6236 BATHROOMS

6236.1 The facility shall provide bathrooms with a minimum of one (1) sink with hot and cold water, one (1) flush toilet, and one (1) bath or shower with hot and cold water for every six (6) residents. Each bathroom shall contain a mirror secured to the wall at a convenient height.

6236.2 Bathing and toilet facilities shall be maintained in good repair and in clean condition, in accordance with applicable laws and housing codes, including but not limited to the 1995 BOCA International Plumbing Code, District of Columbia Construction Code Supplement, Title 12 DCMR.

6236.3 Potty-chairs shall not be located in areas used for food preparation or serving. Potty-chairs shall be emptied and cleaned after each use.

6236.4 Toilets shall be disinfected at least once daily or more often as needed using an appropriate germicidal agent.

6236.5 In programs serving teen parents, residents two (2) years old and younger shall not be included in the ratio of bathing and toilet facilities required herein.

6236.6 Privacy shall be provided by partitions or doors for toilets (unless inconsistent with a toilet training program), showers and bathtubs, unless there is a clinical justification for their removal.

6236.7 The facility shall supply each bathroom with toilet paper, soap and a wastebasket.

6236.8 Bathrooms shall be located on the same floor as sleeping rooms.

6236.9 Bathrooms shall be situated so as to allow direct access to them without the necessity of passing through a bedroom, except when a bedroom has an attached bathroom used only for the residents who reside in that bedroom.

6236.10 Bathtubs and showers shall have nonskid surfaces.

SOURCE: Final Rulemaking published at 48 DCR 8675, 8714 (September 21, 2001).

6237 BEDROOMS

6237.1 No more than four (4) residents may occupy a single bedroom without prior approval from the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") and the licensing agency. Residents age four (4) and over sharing a bedroom shall be of the same sex. Facilities shall make reasonable efforts to place children of the same or close to the same age and level of development in the same bedroom. In facilities serving teen parents, a resident and his or her child may be housed in a single bedroom.

6237.2 The facility shall provide bedrooms which comply with the 1996 BOCA National Building Code and all other applicable District of Columbia laws and regulations and have:

(a) Direct outside ventilation;

(b) At least one (1) operable window with a source of natural light;

(c) A mechanical light;

(d) At least seventy (70) square feet of space for single bedrooms, and at least fifty (50) square feet per person in bedrooms for two (2) or more residents;

(e) Appropriate individual furniture, and an individual closet or a designated section of a closet with clothes racks and shelves in or near the bedroom; and

(f) A separate bed or crib of sufficient size to accommodate each individual resident comfortably. Cots or portable beds may be used on an emergency basis only, which shall not exceed five (5) calendar days.

6237.3 Each bed or crib shall have a clean, comfortable, non-toxic and fire retardant mattress that complies with all applicable federal and local laws and regulations.

6237.4 Sheets and blankets shall be provided for each bed or crib, and pillows and pillowcases shall be provided for each bed. Sheets and pillowcases shall be washed at least weekly, and before use by another resident.

6237.5 Each bed shall be at least three (3) feet from any other bed(s) and any unprotected radiator.

6237.6 Bunk beds shall allow enough space in between each bed and the ceiling to allow the resident to sit up in bed; and they shall be equipped with safety rails on the top bunk and securely attached ladders capable of supporting an adult.

6237.7 The facility shall provide adequate separate bedroom space for those staff who live at the facility.

SOURCE: Final Rulemaking published at 48 DCR 8675, 8715 (September 21, 2001).

6240 CLOTHING

6240.1 The facility shall coordinate with the contracting entity and, where applicable, the CSSD to ensure that each resident has his or her own adequate and appropriate seasonable clothing and footwear.

6240.2 Where the facility provides residents a clothing allowance, the facility shall provide the resident a clothing allowance on a regular and timely basis and notify the resident when the clothing allowance will be provided.

6240.3 The facility shall involve the resident in the selection of clothing, as appropriate to the resident's age and level of development.

6240.4 The facility shall coordinate with the contracting entity and, where applicable, the CSSD to permit each resident to take his or her clothing upon discharge from the facility.

SOURCE: Final Rulemaking published at 48 DCR 8675, 8717 (September 21, 2001).

6301 STATEMENT OF PURPOSE

6301.1 The purpose of this Chapter is to establish criteria and procedures for licensing by CFSA of certain independent living programs for adolescents and young adults.

6301.2 Except as provided by § 6301.3, this Chapter of the DCMR shall apply to any independent living program that is located within the District of Columbia, including any such program that operates residences that are located in another jurisdiction.

6301.3 This Chapter of the DCMR shall not apply to independent living programs that are established to serve children adjudicated delinquent or in need of supervision, or children alleged to be delinquent or in need of supervision, pursuant to D.C. Official Code, § 16-2301 et seq.

6301.4 Nothing in this Chapter shall be read to prohibit CFSA from placing a child in an independent living program which is part of a residential treatment program located in another jurisdiction and for which the child's placement in the independent living program is a continuation of services provided in the residential treatment center.

6301.5 CFSA is responsible for the implementation of this Chapter of the DCMR. Copies of this Chapter of the DCMR shall be available from CFSA upon request.

SOURCE: Final Rulemaking published at 49 DCR 1591 (February 22, 2002).

6303 STATEMENT OF RESIDENTS' RIGHTS AND RESPONSIBILITIES

6303.1 A resident has the following rights:

(a) To be treated with fairness, dignity, and respect;

(b) To receive appropriate and reasonable adult guidance, support, and supervision;

(c) To be free from abuse, mistreatment, threats, harassment, or from being subjected to corporal punishment or other unusual or extreme methods of discipline;

(d) To have his or her opinion heard and to be included, to the greatest extent possible, and consistent with the resident's age and level of development, when any major decisions, including regular case planning meetings, are being made effecting his or her life;

(e) To reasonable and clinically appropriate visitation, mail, and telephone communication with relatives, friends, attorneys, social workers, therapists, guardians ad litem, and other persons involved in the resident's care or service provision;

(f) To have her or his relatives and designated representatives, who are authorized in writing by the contracting entity, communicate with the independent living program, ask questions of the independent living program, and have their questions answered promptly by the independent living program;

(g) To language translation, as necessary;

(h) Not to be deprived of specific or civil rights provided by law, including where applicable, the right to privacy, the right to freedom of association, the right to vote, the right to practice or not practice religion or faith of choice, the right to be free from unreasonable search and seizure, the right to be free from sexual harassment, and the right to be free from discrimination, including the right to equal access to services regardless of race, religion, ethnicity, sexual orientation, disability, or gender; and

(i) All other rights specifically set forth in this Chapter.

6303.2 A resident shall accept responsibility, consistent with his or her age and level of development, for keeping his or her residence in good order and for completing assigned daily or weekly chores.

6303.3 A resident shall comply with the policies and procedures of the independent living program governing her or his conduct.

6303.4 A resident shall attend school or an alternative educational program as set forth in the resident's initial ITILP or ITILP.

6303.5 A resident shall follow appropriate minimum personal care and hygiene standards established by the independent living program, consistent with the resident's physical and developmental capabilities.

6303.6 An independent living program shall conspicuously post § 6303 in its main facility and place a copy in each resident handbook.

SOURCE: Final Rulemaking published at 49 DCR 1591 (February 22, 2002).

6305 GRIEVANCE PROCEDURE

6305.1 In this section:

(a) "Grievance" means a formal complaint concerning interactions between residents, interactions between residents and staff, the independent living program's services and physical conditions, resident discipline, or other issues concerning the resident's care. A grievance may not be based upon alleged abuse or neglect, or alleged criminal activity, or other risks to residents' health and safety.

(b) "Person who is the subject of the grievance" means the resident or staff member whose action or behavior is complained about in the grievance.

6305.2 A grievance may be brought by:

(a) A resident;

(b) A resident's representative, parent(s), or guardian(s) on behalf of the resident; or

(c) A staff member on behalf of a resident.

6305.3 An allegation of abuse, neglect, or other risk to a resident's health and safety shall be reported pursuant to § 6304.3. Alleged criminal activity shall be reported pursuant to § 6319, as appropriate, and to the law enforcement agency in the jurisdiction in which the offense allegedly occurred.

6305.4 An independent living program shall develop and follow a written procedure regarding the receipt, consideration, and resolution of grievances. The grievance procedure shall be clear and concise. The grievance procedure shall include:

(a) A process for filing a grievance that does not require the grievance to be filed or transmitted through the person who is the subject of the grievance;

(b) A prohibition against retaliation by staff or other residents against the person making the grievance, the resident on whose behalf the grievance was filed, and the person who is the subject of the grievance; and

(c) A process for enforcing the prohibition set forth in § 6305.4(b).

6305.5 An independent living program shall conspicuously post a copy of the grievance procedure in the main facility and place a copy in each resident handbook.

6305.6 An independent living program shall explain and give a copy of the grievance procedure to each resident upon admission to the independent living program in accordance with §§ 6340.3 (a) and (g).

6305.7 An independent living program shall establish and maintain a grievance board composed of at least two staff members and one resident. The grievance board shall hear and attempt to resolve all grievances.

6305.8 The following individuals may not serve on the grievance board for a particular grievance:

(a) A resident or staff member who filed the grievance;

(b) A resident or staff member who is the subject of the grievance; and

(c) A resident or staff member who is otherwise involved in the grievance.

6305.9 An independent living program shall appoint a separate resident or staff member, as appropriate, to the grievance board to resolve the grievance if a grievance board member may not serve on the grievance board pursuant to § 6305.8.

6305.10 The grievance board shall resolve the grievance within fourteen (14) days of the filing of the grievance.

6305.11 Promptly after resolving the grievance, an independent living program shall provide written notice of the results to the person filing the grievance, the resident on whose behalf the grievance was filed, and the person who is the subject of the grievance.

6305.12 The independent living program shall file the written results of the grievance in the case records of the resident who filed the grievance, the resident on whose behalf the grievance was filed, and the resident who is the subject of the grievance.

6305.13 The independent living program shall maintain written records of all grievances and all grievance decisions and, upon request, shall make those records available to CFSA.

SOURCE: Final Rulemaking published at 49 DCR 1591 (February 22, 2002).

6312 PENALTIES

6312.1 CFSA may impose civil fines, penalties, and related costs against a public or private independent living program for the violation of any provision of this Chapter.

6312.2 A violation shall be considered an infraction under the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 25, 1985, D.C. Law 6-42, D.C. Official Code § 2-1801.01 et seq.

6312.3 The procedures for adjudication and enforcement and the applicable fines, penalties, and costs shall be those established by or pursuant to the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 25, 1985, D.C. Law 6-42, D.C. Official Code § 2-1801.01 et seq.

6312.4 Governmental immunity is not a defense to any civil fine, penalty, or cost imposed.

6312.5 Civil fines, penalties, and related costs imposed against an independent living program may not come out of funds needed to provide quality care and services to residents or otherwise passed on to the contracting entity, CFSA, or the District of Columbia.

6312.6 Civil fines, penalties, and costs imposed against any independent living program owned or operated by the District of Columbia government shall be paid into a special account to be used for the personal needs of residents.

6312.7 CFSA shall conduct an audit at least annually of every independent living program against which civil fines, penalties, or costs have been imposed.

6312.8 Notwithstanding the availability of any other means of enforcement, CFSA may deduct the amount of civil fines, penalties, and related costs imposed against an independent living program directly from amounts otherwise payable by the District of Columbia to the independent living program.

6312.9 CFSA shall maintain a record of all decisions to impose penalties or fines. The record shall be accessible to the public.

SOURCE: Final Rulemaking published at 49 DCR 1591 (February 22, 2002).

6320 CONFIDENTIALITY

6320.1 A resident's case record is confidential and may not be disclosed or used other than in the course of official independent living program duties to provide services to the resident and in such instance shall only be disclosed to the least extent possible, consistent with any court order, the resident's initial ITILP and ITILP, and local and federal law. The independent living program, CFSA, contracting entity, and guardian ad litem shall have access to the resident's case record. No other person shall have access to the resident's case record unless authorized in writing by CFSA.

SOURCE: Final Rulemaking published at 49 DCR 1591 (February 22, 2002).

6322 PRIVACY

6322.1 An independent living program shall provide for a resident's reasonable privacy with respect to his or her person, property, and living quarters, including by knocking before entering any residence and allowing the resident a reasonable amount of time to respond to the knock before entering.

6322.2 An independent living program may limit a resident's privacy as reasonably necessary to protect the health, safety, or welfare of the resident or others. Any such limitation shall be set forth in the resident's initial ITILP or ITILP, pursuant to § 6341, and documented in the resident's case record.

6322.3 An independent living program shall maintain the confidentiality of a resident's need for medications, except as necessary to provide services to the resident.

6322.4 The independent living program shall prohibit the use of listening devices for observation of a resident in the main facility and apartments, unless otherwise required by court order. This section may not be read to prohibit the use of a baby monitor used to monitor the well-being of an infant.

6322.5 Except as provided by § 6322.6 and other than a photograph taken of a resident upon admission into the independent living program pursuant to § 6340.1(c), an independent living program may not create or use a photograph, audio-tape, artwork, or writing of a residence who is less than eighteen (18) years of age without the written authority of the resident, resident's parent(s) or guardian(s), and contracting entity, except that consent of the parent(s) or guardian(s) is not required if reasonable efforts to consult the parent(s) or guardian(s) have been made but a parent or guardian cannot be located.

6322.6 An independent living program may not use any photograph of a resident for public relations or fundraising purposes.

6322.7 A resident under the age of eighteen (18) may not participate in a public performance without the written authority of the resident, the resident's parent(s) or guardian(s), and the contracting entity, unless otherwise provided by court order, except that consent of the parent(s) or guardian(s) is not required if reasonable efforts to consult the parent(s) or guardian(s) have been made but a parent or guardian cannot be located.

6322.8 Except as provided by § 6322.6, a resident who is eighteen (18) years of age or older may consent to an independent living program's creation or use of a photograph, audio-tape, artwork, or writing of the resident, or to her or his own participation in a public performance. The independent living program shall provide written notice to the contracting entity at least two (2) business days prior to the creation, use, or participation.

SOURCE: Final Rulemaking published at 49 DCR 1591 (February 22, 2002). 6328 RESIDENCE PHYSICAL PLANT REQUIREMENTS

6328.1 A resident shall reside only in a residence that meets the requirements of § 6328.

6328.2 An independent living program may operate only a main facility, both a main facility and residences, or only residences.

6328.3 A main facility and each residence shall have a certificate of occupancy issued by the appropriate authority in the jurisdiction, to the extent required by law.

6328.4 An independent living program may not place a resident in a residence in violation of the certificate of occupancy.

6328.5 A main facility and each residence shall comply with all local and federal laws, including but not limited to laws relating to building and fire codes, electrical, lead paint standards, and asbestos.

6228.6 A main facility shall maintain a working fire extinguisher, subject to annual inspection, for each cooking area and wing of the main facility, and all areas used for electrical, gas, or other heating equipment.

6328.7 Except as provided in § 6328.8, a residence shall have the following rooms or areas:

(a) A kitchen containing a working refrigerator, oven, stove, sink with hot and cold running water, and fire extinguisher;

(b) A bathroom in a separate room with a locking door that:

(1) Has a working sink with hot and cold running water, bathtub or shower with hot and cold running water, flush toilet, and mirror secured to the wall at a convenient height;

(2) Is maintained in good repair, in clean condition, and in accordance with applicable laws and housing codes; and

(3) Is situated so as to allow direct access without the necessity of passing through a bedroom, except when a bedroom has an attached bathroom used only for the resident(s) who reside in that bedroom; and

(c) At least one (1) bedroom for every two (2) residents that shall have:

(1) A locking door separating the bedroom from the rest of the residence;

(2) Direct outside ventilation;

(3) At least one (1) operable window with a source of natural light;

(4) A mechanical light;

(5) At least seventy (70) square feet of space for a single bedroom and at least sixty (60) square feet per person in a bedroom for two (2) residents; and

(6) Appropriate individual furniture, and an individual closet or a designated section of a closet with clothes racks and shelves in or near the bedroom.

6328.8 A residence may be an efficiency apartment provided that the apartment:

(a) Includes a kitchen area containing the items set forth in § 6328.7(a);

(b) Includes a bathroom in a separate room with a locking door and containing the items set forth in § 6328.7(b); and

(c) Houses no more than one resident, which may be a teen parent and one child.

6328.9 A residence shall maintain at least one working smoke detector on each floor and at least one additional smoke detector for each bedroom area not connected by a common hallway.

6328.10 A residence shall be equipped with at least one working carbon monoxide detector on each floor and at least one additional carbon monoxide detector for each bedroom not connected by a common hallway.

6328.11 The building in which a main facility or residence is located shall:

(a) Be maintained in a sanitary, comfortable, and safe condition, free from rodent and insect infestation, and in accordance with applicable law;

(b) Maintain its grounds in a sanitary, comfortable, and safe condition, free from rodent and insect infestation, and in accordance with applicable law;

(c) Maintain the building trash outside the building in secure, non-combustible, covered receptacles that prevent the penetration of insects and rodents; and that are separate from play areas and located so as to avoid being a nuisance to neighbors;

(d) Remove trash from the premises at least once a week;

(e) Provide heat during winter months of between sixty-eight (68) and seventy-two (72) degrees Fahrenheit, except that the residence may maintain a temperature of no lower than sixty-five (65) degrees Fahrenheit during sleeping hours, and meet all applicable laws concerning the heating and cooling systems;

(f) Provide water that meets all applicable laws; and

(g) Meet all applicable laws concerning lighting.

6328.12 A residence shall have laundry facilities on the premises, be located within walking distance of laundry facilities, or provide at least weekly transportation to laundry facilities.

6328.13 A residence shall have security devices including a charlie bar on all patio doors and locks, dead bolts, and safety chains on all doors. If a residence does not have such locks, the independent living program shall provide for their installation.

6328.14 An independent living program shall maintain in a secure location keys to all locks in each residence.

SOURCE: Final Rulemaking published at 49 DCR 1591 (February 22, 2002).

KNOW YOUR RIGHTS: FAIR HOUSING AND TRANSGENDER PEOPLE March 2012

Recent federal guidance and regulations have greatly strengthened the housing rights of transgender people. While we still desperately need a national housing law that explicitly prohibits discrimination based on gender identity and sexual orientation, existing laws provide real protections in many circumstances. This document outlines the housing rights of transgender people and how to file complaints of housing discrimination. Because NCTE does not provide legal services, we encourage any person who cannot resolve housing issues through federal, state, or local fair housing complaint processes to seek legal counsel. We also encourage transgender people who have encountered housing barriers to share their experiences with us to aid our advocacy efforts.

WHAT LAWS PROTECT YOU?

The following laws offer protection for transgender people in housing:

▪▪ The Fair Housing Act prohibits discrimination based on sex in the sale or rental of housing and in mortgage lending. In recent years, courts have increasingly held that discrimination because a person is transgender, or because he or she fails to conform to gender stereotypes, is sex discrimination under federal civil rights laws. In 2010, the U.S. Department of Housing and Urban Development (HUD) issued guidance stating that it would investigate complaints of housing discrimination against transgender people based on this understanding of the law. ▪▪ U.S. Department of Housing and Urban Development program regulations. In January 2012, HUD issued regulations explicitly prohibiting discrimination on the basis of gender identity, sexual orientation, or marital status in all federally-funded housing programs. These regulations apply to all public and assisted housing and rental assistance (voucher) programs that receive federal funds (including homeless shelters and other temporary housing), as well as to federally-insured home mortgages. ▪▪ State and local nondiscrimination laws. Nearly every state prohibits sex discrimination in housing. The following states also currently explicitly prohibit both gender identity and sexual orientation discrimination in housing: California, Colorado, Connecticut, the District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Jersey, New Mexico, Nevada, Oregon, Rhode Island, Vermont and Washington, as well as more than 140 cities and counties.

WHAT ARE YOUR HOUSING RIGHTS?

What types of housing are covered by these protections? Different federal, state, and local laws prohibit housing discrimination on the basis of sex and gender identity in different types of housing. The following types of housing providers and transactions are covered by at least one of these prohibitions:

• Sale of houses and condominiums • Rental housing on the private market

National Center for Transgender Equality ▪ 1325 Massachusetts Avenue NW, Suite 700, Washington, DC 20005 (202) 903-0112 ▪ [email protected] ▪ www.TransEquality.org WHAT ARE YOUR HOUSING RIGHTS? (CONTINUED) • Rental housing paid for by public housing vouchers or rental assistance • State and local public housing authorities • Supportive housing programs • Transitional housing programs • Homeless shelters • Providers of federally-insured mortgage loans What types of discrimination are covered by the law? It is illegal for a housing provider to do any of the following because you are transgender, or because you are perceived as not conforming to gender stereotypes: • Refuse to rent or sell you housing • Refuse to admit you to a homeless shelter • Tell you housing is unavailable when it is available • Set different terms, conditions, or privileges for sale or rental of a dwelling • Provide different housing services or facilities • Deny you a mortgage loan, or impose different terms or conditions on a mortgage loan • Deny you property insurance • Conduct property appraisals in a discriminatory manner • Harass, coerce, intimidate, or interfere with you exercising your fair housing rights The law also prohibits discrimination because of race, color, national origin, religion, familial status, or disability (including if you are, or are perceived as, a person living with HIV/AIDS). In addition, discrimination on the basis of sexual orientation or marital status is prohibited in all federally-funded housing.

What are the housing rights of LGBT families? In public housing and voucher programs, eligibility often depends on establishing that people living together are a family. Federal rules require that LGBT couples and families be treated equally, regardless of the formal status of their relationships. All families are eligible to be treated as a family unit for these programs. Discrimination against LGBT families in any federally-funded housing or federally-insured mortgage lending is illegal. However, in private rental and home sales outside of these programs, some cases of discrimination based solely on sexual orientation or marital status may not fall within the protections of current federal law. State and local laws provide this protection in many parts of the country.

Can a housing provider ask if I am transgender? Asking whether you are transgender may be an indication of dis- crimination if you are subsequently denied housing or provided substandard housing. If a housing provider receives federal funding—such as housing vouchers or federal grants—the law specifically forbids asking about your gender identity or sexual orientation.

In the case of a homeless shelter or other temporary housing that houses men and women separately, facility staff may ask whether you are male or female if they are unsure where to house you. If asked, you can tell them the gen- der you identify as. Demands for medical or legal evidence concerning your gender, because you are transgender or are perceived as not conforming to gender stereotypes, may be evidence of discrimination.

Can I be turned away from gender-specific housing or forced into housing with the wrong gender? Refusing to provide housing consistent with a person’s gender identity because they are transgender constitutes discrimina- tion based on sex and/or gender identity. In temporary housing that is gender-segregated it is permissible, if staff members are unsure, to ask whether a person is male or female. However, this does not permit a housing provider to exclude transgender people or to single them out for intrusive demands for evidence regarding their gender. This may constitute unlawful discrimination.

National Center for Transgender Equality ▪ 1325 Massachusetts Avenue NW, Suite 700, Washington, DC 20005 (202) 903-0112 ▪ [email protected] ▪ www.TransEquality.org WHAT CAN YOU DO ABOUT HOUSING DISCRIMINATION?

Make housing providers aware of the law Many housing providers are not aware that it is illegal for them to turn someone away because they are LGBT or do not conform to gender stereotypes. Local public housing authorities also may not be fully aware of their obligation to treat LGBT families equally—they may even mistakenly believe that you are not legally eligible as a family. Simply making the housing provider aware of the law may help resolve your problem with them. However, if you encounter mistreatment that cannot be resolved informally, you may file a complaint of housing discrimination.

File a complaint of housing discrimination If you have experienced one or more of the forms of discrimination described above—or you believe you may be sub- ject to a discriminatory act such as an eviction—you may file a complaint with the U.S. Department of Housing and Urban Development (HUD). Depending on the facts of your situation different laws may apply, which may be enforced by different federal, state, and local government offices. Because it may be difficult to determine which laws may ap- ply to your situation, NCTE currently recommends that all LGBT-related fair housing complaints be directed to HUD’s Office of Fair Housing and Equal Opportunity. An attorney is not required, and most complaints are resolved without going to court.

A complaint of discrimination generally must be filed with HUD within one year of a discriminatory action in order to begin the investigative process. If you experience discrimination because you are transgender, make sure to state that you believe you experienced discrimination based on sex.

Once you file a report of discrimination, a HUD representative will contact you to discuss your situation and deter- mine whether the agency can undertake a formal investigation. If you do not get a response, you can follow up with the office you initially contacted to ask about the status of your complaint.

If you have experienced housing discrimination, you can report it to HUD by telephone, mail, or online, at no cost. To report discrimination you can either:

• Call toll-free: 1 (800) 669-9777 • Fill out an online form at http://portal.hud.gov/hudportal/HUD?src=/topics/housing_discrimination • Print a form from http://portal.hud.gov/hudportal/HUD?src=/topics/housing_discrimination and mail it to the regional office listed on the form

Your complaint will be more effective if you can present solid factual information. Write down the date, time, location, witnesses, and people involved in any events that were discriminatory or disrespectful. Also keep any documents that the discriminating entity gives you. If you present your situation in an organized way, you increase the chance of your complaint getting the attention it deserves.

The Fair Housing Act also permits you to bring a lawsuit directly in federal court against a housing provider that has engaged in discrimination based on sex, race, color, national origin, religion, familial status, or disability. You do not need to file a complaint with HUD first to do this. However, a lawsuit can be a lengthy and expensive process and it may be difficult to succeed without an attorney. Alternatively, if you file a complaint with HUD and the agency does not find reason to believe discrimination occurred, you can later file a lawsuit in federal court. A full explanation of the Fair Housing Act complaint process can be found at: www.hud.gov/offices/fheo/complaint-process.cfm.

Get help Resolving a case of housing discrimination can be a complicated and stressful process. Don’t hesitate to seek help from a local community organization or an attorney (or both). While NCTE does not provide legal services or refer- rals, there are many other groups that may give you referrals or maintain lists of local attorneys.

National Center for Transgender Equality ▪ 1325 Massachusetts Avenue NW, Suite 700, Washington, DC 20005 (202) 903-0112 ▪ [email protected] ▪ www.TransEquality.org WHAT CAN YOU DO ABOUT HOUSING DISCRIMINATION? (CONTINUED)

The National Fair Housing Alliance maintains a directory of non-profit organizations that specialize in assisting with fair housing cases (see below). You can also contact a local legal aid or legal services organization, or national or regional organizations such as Lambda Legal, the National Center for Lesbian Rights, the ACLU, the Transgender Law Center, and others listed on NCTE’s website.

Share your story If you are facing discriminatory treatment, consider sharing your story with NCTE so we can use it in advocacy efforts to change policies, improve education, and reduce future discrimination. If you successfully resolve a housing situa- tion, and especially if any of the material here helped, we want to hear from you as well.

Additional Resources

HUD toll-free fair housing hotline: 1 (800) 669-9777

HUD page on LGBT Housing Discrimination: http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/LGBT_ Housing_Discrimination

HUD guide to the Fair Housing Act complaint process: http://portal.hud.gov/hudportal/ HUD?src=/program_offices/fair_housing_equal_opp/complaint-process

HUD fair housing complaint page: http://portal.hud.gov/hudportal/HUD?src=/topics/housing_ discrimination

HUD program regulations: http://portal.hud.gov/hudportal/documents/ huddoc?id=12lgbtfinalrule.pdf

National Fair Housing Alliance: http://www.nationalfairhousing.org

Directory of local HUD field offices: http://portal.hud.gov/hudportal/HUD?src=/localoffices

Directory of state and local fair housing enforcement agencies: http://www.civilrights.org/ fairhousing/laws/state-agencies.html

Links to LGBT legal organizations: http://transequality.org/Resources/links.html#legal

National Center for Transgender Equality ▪ 1325 Massachusetts Avenue NW, Suite 700, Washington, DC 20005 (202) 903-0112 ▪ [email protected] ▪ www.TransEquality.org Page 1

In the Matter of Jean Doe, by Her Next Friend, David Pumo, Petitioner, v. William C. Bell, as Commissioner of City Administration for Children's Services, et al., Respondents.

Index # 112508/02

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

194 Misc. 2d 774; 754 N.Y.S.2d 846; 2003 N.Y. Misc. LEXIS 95

January 9, 2003, Decided

SUBSEQUENT HISTORY: [***1] Case Name by exempting petitioner from the facility's dress code. Amended February 25, 2003. Counsel Amended March 4, 2003. COUNSEL: Debevoise & Plimpton (Alexander Yanos and Kristine Schroeder of counsel), for petitioner. DISPOSITION: Petition granted; withdrawal of petitioner's motion for a preliminary injunction permitted. Michael A. Cardozo, Corporation Counsel, (Diana Goell of counsel), for respondents.

HEADNOTES JUDGES: Louise Gruner Gans, J.

Civil Rights - Discrimination Based on Disability - OPINION BY: Louise Gruner Gans Refusal to Make Reasonable Accommodation - Right of Male with Gender Identity Disorder to Wear Feminine OPINION Clothing at All-Male Foster Care Facility [*775] [**847] Louise Gruner Gans, J. Petitioner, a 17-year-old biological male who 1 identifies as a female, is a disabled person for purposes of Petitioner Jean Doe, a 17-year-old biological male, the Human Rights Law (see Executive Law § 292 [21]). who has been diagnosed with gender identity disorder Petitioner, who resides in an all-male foster care facility (GID) brings this CPLR article 78 petition seeking an operated by respondent, has been clinically diagnosed order barring respondents, New York City with gender identity disorder (GID). No more is required Administration for Children's Services and Commissioner for petitioner to be protected from discrimination under William Bell (collectively hereinafter ACS), from the Human Rights Law. Consequently, respondent preventing Doe from keeping and wearing skirts and unlawfully discriminated against petitioner by preventing [**848] dresses at the Atlantic Transitional Foster petitioner from keeping and wearing skirts pursuant to the Facility, the all-male ACS-operated, 24 bed, congregate 2 facility's dress code. Petitioner's treatment requires that foster care facility in which she lives. Doe contends that she be able to wear feminine clothing. Under these by denying her the right to wear such feminine clothing circumstances, the Human Rights Law requires consistent with her gender identity, Atlantic Transitional's respondent to make reasonable accommodation for policy constitutes unlawful disability and sex petitioner's disability (see Executive Law § 296 [18] [2]) discrimination in contravention of the New York State Page 2 194 Misc. 2d 774, *775; 754 N.Y.S.2d 846, **848; 2003 N.Y. Misc. LEXIS 95, ***1

Human Rights Law (N.Y. Executive Law § 291 et seq.) woman and desire to wear women's clothing, her [***2] , and violates Doe's constitutional right to discomfort in being forced to wear male clothing, and the freedom of expression. distress she experienced when forced to do so.

1 Although biologically male, Doe identifies as a 3 Gender identity disorder was first listed in woman. Based on this identity, the parties have DSM-III in 1980. used feminine pronouns to refer to her. The court does so as well. Dr. Spritz testified that the treatment plan for Jean 2 Atlantic Transitional is an all-male congregate Doe called for Doe to dress according to her identity as a care facility used by ACS for short-term woman, including "wearing girls' clothing, accessories, placement of boys in foster care aged 15 to 21. and makeup, and sometimes other items to make [herself] Generally, boys will stay at Atlantic Transitional look ... more feminine, such as breast enhancers." Dr. only for a period of 30 to 40 days or until a Spritz explained the reason for such treatment: "the goal permanent placement is found. Where there are is to facilitate acceptance of the gender identity of a difficulties in finding a suitable permanent transgendered person by allowing her to dress in a placement, as has been the case with Jean Doe, a manner consistent with her internal identity ... Research resident may stay at Atlantic Transitional for a has found that forcing youths with GID to dress in longer period. conflict with their identity, though it may be in harmony with their biological attributes, causes significant anxiety, Facts psychological harm, and antisocial behavior." Her opinion was seconded by Gerald P. [***5] Mallon, Jean Doe is a 17-year-old teenager, who albeit with Ph.D., a Professor at the Hunter College School of Social some interruptions, has been in foster care since age nine. Work and founder of the Green Chimneys Children's Born a male, she identifies as a female. She experiences Services Program for, inter alia, transgendered youth, an intense need to wear women's clothing and act as a who expressed [**849] the opinion that "the proper woman. She feels uncomfortable dressing as a male, course of treatment for transgendered boys is to allow finding such dress awkward and alienating. Indeed, them to wear feminine clothing in an integrated [***3] Doe has run away from prior foster care environment." placements in which she was forced to dress like a man. This condition is known as gender identity disorder or Since the time of Jean Doe's second admission to GID. The American Psychiatric Association's Diagnostic Atlantic Transitional in January 2002, respondents have and Statistical Manual of Mental Disorders (4th ed 1994) restricted the kinds of clothing she may wear. In March (DSM-IV) recognizes GID as a mental disorder. 3 2002, Wayne An-toine, director of Atlantic Transitional, According to the DSM-IV, there are three components of issued a memorandum to the staff explaining that Jean GID: (i) "a strong and persistent cross-gender Doe was not permitted "to wear 'female attire' in the identification, which is the desire to be, or the insistence facility. He can wear it only if he is walking directly out that one is, of the other sex" (at 532); (ii) "there must also of the facility. If he returns to the facility, he must be be evidence of that persistent discomfort about one's escorted to his room so he can remove the female attire." assigned sex or a sense of inappropriateness in the gender Despite its prohibition of all "female attire," the role of that sex" (at 533); and (iii) "clinically significant memorandum stated that Doe would be allowed "to wear distress or impairment in social, occupational, or other scarves, 'nails', brassieres, and enhancers." 4 Later that important areas of functioning." (Id.) Doe's insistence on month, after petitioner's counsel complained to ACS that dressing in feminine [*776] clothing is a characteristic Ms. Doe was being denied the right to dress in a feminine of persons with GID. As noted in the DSM-IV, "in boys, manner, ACS, by letter [*777] from its legal counsel the cross-gender identification is manifested by a marked unit dated March 28, 2002, refused to take [***6] any preoccupation with traditionally feminine activities. action to alter the Atlantic Transitional policy. ACS They may have a preference for dressing in girls' or determined that because of its need to protect "the safety women's clothes ...." (Id.) Dr. Spritz, a psychiatrist who and welfare of the resident children, [Ms. Doe] is not had treated Doe, testified that she had diagnosed Doe permitted to dress in female clothing at his current group with GID [***4] based on Doe's self-identification as a home." ACS noted that it had previously placed Ms. Doe Page 3 194 Misc. 2d 774, *777; 754 N.Y.S.2d 846, **849; 2003 N.Y. Misc. LEXIS 95, ***6 in two group homes for gay, lesbian, bisexual, and court rule on the merits based on the entire record, transgendered youth, both of which permitted her to wear including the testimony and written submissions women's clothing, but that Doe had been discharged from presented in support of the motion for a both of these facilities for misconduct. Thus, according preliminary injunction. On December 26, 2002, to ACS, "but for your client's repeated and serious the court issued an order giving ACS an misconduct at these facilities, no issue of the denial of a opportunity to respond to Doe's request, and to claimed right to wear female clothing would even exist." offer additional evidence. On January 3, 2003, Jean Doe does have a history of being insubordinate, Corporation Counsel responded by letter, undisciplined, and on occasion has been involved in enclosing as additional evidence the following violent altercations during her sojourn through many documents related to Jean Doe: a copy of ACS' foster homes, group homes and institutions. April 16, 2002 letter to Family Court Judge Sheldon M. Rand, the transcript of an April 19, 4 Respondents do not dispute that the 2002 hearing before Judge Rand, and a March 7, memorandum concerned Jean Doe and the 2002 Family Court Mental Health Services clothing she would be permitted to wear in the clinical report prepared for the case before Judge Atlantic Transitional facility. Rand. On January 6, 2003, Doe's counsel advised that there was no objection to these submissions. [***7] On June 10, 2002, Doe brought this article Accordingly, these submissions, as well as the 78 petition and moved for preliminary injunctive relief evidence taken at the hearing and the documents requiring ACS to allow Ms. Doe to wear the whole range submitted in support of and in opposition to the 5 of feminine clothing at Atlantic Transitional. One motion for a preliminary injunction, are deemed month later, on July 18, 2002, with the participation and to be part of the record, and will be considered by approval of ACS, Mr. Antoine issued a memorandum the court in ruling on the merits of the petition. announcing new written dress standards for residents of Atlantic Transitional. It stated that residents "must wear [***9] Discussion pants, or in warm weather, loose-fitting shorts that extend at least to mid-thigh. Shirts (or blouses) must also be The New York State Human Rights Law (Executive worn at all times and must [**850] not expose the chest Law § 296 [18] [2]) provides that it is "an unlawful or midriff." The July 18 memorandum further prohibits discriminatory practice for the owner, lessee, sub-lessee, Atlantic residents from wearing "clothing that is sexually assignee, or managing agent of, or other person having provocative, that is, excessively short or tight fitting, or the right of ownership of or possession of or the right to which is see thru." As part [*778] of the standards, rent or lease housing accommodations ... to refuse to "residents who wish to wear female attire may do so as make reasonable accommodations in rules, policies, long as the above guidelines are respected. Female attire practices, or services, when such accommodations may that does not conform to the policy may only be worn by be necessary to afford said person with a disability equal a resident when leaving facility premises. Residents opportunity to use and enjoy a dwelling." (See also whose attire does not conform to these guidelines must be Executive Law § 296 [2-a] [d] [2] [forbidding the "owner immediately sent to their rooms to change." Thus, ... of publicly-assisted housing accommodations ... (from) residents at Atlantic Transitional are not permitted to refusing to make reasonable accommodations in rules, [***8] wear skirts or dresses at the facility. At the same policies, practices, or services, when such time, Atlantic Transitional has continued to permit Jean accommodations may be necessary to afford a person Doe to wear scarves, "nails," breast enhancers and with a disability equal opportunity to use and enjoy a brassieres, hair weaves (a kind of hair lengthening dwelling"].) hairpiece), and makeup. A. Is Jean Doe Disabled Under the State Human 5 This court held a hearing on Doe's motion for a Rights Law? preliminary injunction on August 12, 2002, and heard testimony from both parties at the hearing. Under the State Human Rights Law, the term On November 15, 2002, Doe withdrew her "disability" is broadly defined. Disability "means (a) a request for interim relief, but requested that the physical, mental or medical impairment resulting from anatomical, physiological, genetic [***10] or Page 4 194 Misc. 2d 774, *778; 754 N.Y.S.2d 846, **850; 2003 N.Y. Misc. LEXIS 95, ***10 neurological conditions which prevents the exercise of a Rights "could find that the complainant's obese condition normal bodily function or is demonstrable by medically itself, which was clinically diagnosed, ... constituted an accepted clinical or laboratory diagnostic techniques." impairment and therefore a disability within the (Executive Law § 292 [21].) Doe argues that, under this contemplation of the statute." (Id. at 219; see also Reeves broad definition, she is a person with a disability, namely, v. Johnson Controls World Servs., Inc., 140 F.3d 144, GID. The court agrees. 155-156 [2d Cir. 1998] [holding that, under [***12] Xerox, plaintiff's panic disorder was a disability under the In State Division of Human Rights v. Xerox Corp. State Human Rights Law] ["(Xerox's) literal reading of (65 N.Y.2d 213, 491 N.Y.S.2d 106, 480 N.E.2d 695 the statute ... treats a medically diagnosable impairment [1985]), the Court of Appeals held that an obese as necessarily a disability for purposes of the NYHRL. employee was a disabled employee who could not be 'Thus, an individual can be disabled under the (NYHRL) terminated based on her disability under the State Human if his or her impairment is demonstrable by medically Rights Law. In rejecting the employer's argument that an accepted techniques; it is not required that the impairment employee could not be considered disabled under the substantially limit that individual's normal activities'"], State Human Rights Law absent a showing [*779] that quoting Hazeldine v. Beverage Media, Ltd., 954 F. Supp. her impairment limited his or her ability to perform 697, 706 [SD NY 1997].) particular activities, the Court of Appeals focused on New York's broad statutory definition of disability: Under Xerox and Reeves, Doe's GID is a disability under the State Human Rights Law. Doe's disorder has "[The employer's] arguments might have been clinically diagnosed by Dr. Spritz, as well as by Dr. some force under typical disability or Levin of the Family Court Mental Health Services, using handicap statutes narrowly defining the the medically accepted standards set forth in the terms in the ordinary sense to include only DSM-IV. No more is required for [*780] Doe to be physical or mental conditions which limit protected from discrimination under the State Human the ability to perform certain activities .... Rights Law. (See Reeves, 140 F.3d at 156 ["We find that However in New [***11] York, the term plaintiff's medically diagnosed Panic Disorder With 'disability' is more broadly defined. The Agoraphobia constitutes a disability within the meaning statute provides that disabilities are not of the NYHRL"].) 6 limited to physical or mental impairments but may also include 'medical 6 Although ACS refuses to concede that GID is impairments.' In addition, to qualify as a a disability under the State Human Rights Law, it disability, the condition may manifest offers no argument that Doe is not disabled under itself in one of two ways: (1) by the State Human Rights Law. preventing the exercise of a normal bodily function or (2) by being 'demonstrable by [***13] B. Does Atlantic Transitional's Dress medically accepted clinical or diagnostic Policy Discriminate Against Jean Doe? [**851] techniques ....' Doe argues that the dress code barring her from "Fairly read, the statute covers a range wearing feminine clothing, such as dresses and skirts, of conditions varying in degree from those violates the State Human Rights Law because (i) it involving the loss of a bodily function to discriminates against her based on disability, and (ii) the those which are merely diagnosable city failed to make reasonable accommodations for Doe's medical anomalies which impair bodily disability. integrity and thus may lead to more Doe's first argument is without merit. There is serious conditions in the future." (Id. at nothing in the Atlantic Transitional policy that 218-219.) discriminates against Doe or other persons with disabilities based on her disability. The policy is neutral Based on this definition, the Court of Appeals held on its face and applies to all persons at the facility who that the Commissioner of the State Division of Human wish to wear feminine clothing, whether or not they suffer from GID. The policy does not target persons who Page 5 194 Misc. 2d 774, *780; 754 N.Y.S.2d 846, **851; 2003 N.Y. Misc. LEXIS 95, ***13 have GID and there is nothing in the record to suggest Starrett Sys., Inc. v. Dopico (109 Misc.2d 774, 441 that the dress policy was promulgated to subject persons N.Y.S.2d 34 [Civil Ct, Kings County 1981]), the court with disabilities to adverse treatment. refused to grant a landlord summary judgment terminating disabled tenants' lease for keeping a dog in The State Human Rights Law, of course, is not violation of the no pet clause in the lease. The court held simply a prohibition on discriminatory actions taken that the landlord would be required to make a reasonable because of a person's disability. Quite the contrary, the accommodation to a disabled tenant who needed to keep State Human Rights Law, like federal disability a pet because of that person's disability. "The legislative discrimination statutes, requires covered entities to advances protecting the disabled ... require the no-pet provide to persons with disabilities reasonable [***14] clause to bow upon proof of a specific, particularized accommodations not offered to other persons in order to need to keep a dog, which need arises out of the ensure that persons with disabilities enjoy equality of handicap." (Id. at 775; see also Crossroads Apartments opportunity. (See Executive Law § 296 [18] [2] Assoc. v. LeBoo, 152 Misc.2d 830, 578 N.Y.S.2d 1004 [requiring provision of reasonable accommodations in [Rochester City Ct 1991] [refusing to grant a judgment rules, policies, and practices "when such evicting a disabled person based on no pet clause where accommodations may be necessary to afford said person tenant claimed that pet was necessary to assist tenant in with a [**852] disability equal opportunity to use and dealing with mental illness].) enjoy a dwelling"]; Matter of United Veterans Mutual Hous. No. 2 Corp. v. New York City Commn. on Human In Dopico, respondents were wheelchair bound Rights, 207 A.D.2d 551, 552, 616 N.Y.S.2d 84 [2d Dept tenants, for whom a dog was necessary for the enjoyment 1994] [finding unlawful co-op's policy of refusing to of the property. The dogs helped keep the disabled expend corporate funds on providing reasonable tenants safe and also helped them detect [***16] smoke accommodations to disabled residents]; see also US and fire. Without the dogs, the tenants would be subject Airways, Inc v. Barnett, 535 U.S. 391, 397, 122 S. Ct. to an unnecessary risk of harm. To allow the disabled 1516, 1521, 152 L. Ed. 2d 589 [2002] ["The Act requires tenants the full and equal freedom to use their dwelling, preferences in the form of 'reasonable accommodations' the court ruled, the landlord had to accommodate the that are needed for those with disabilities to obtain the disabled tenants by exempting them from the lease's no same workplace opportunities that [*781] those without pet clause. disabilities automatically enjoy. By definition any special 'accommodation' requires the employer to treat an Accordingly, the question is whether the city employee with a disability differently, i.e., discriminated against Jean Doe by failing to preferentially"].) 7 accommodate her disability by exempting her from Atlantic Transitional's dress policy forbidding the 7 As a general matter, the scope of the disability wearing of dresses and skirts within the facility. In other discrimination provisions of the State Human words, does this case fall within the duty to provide Rights Law are similar to those of the Americans reasonable accommodations outlined in Dopico? with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (29 USC § 794 The text of the State Human Rights Law sheds [a]), a precursor to the ADA. (See Reeves, 140 considerable light on the meaning of the duty to provide F.3d at 154-156 [noting legislative history calling reasonable accommodations [*782] in rules, procedures, for coextensive interpretation of state and federal and policies. First, a covered entity has an obligation to disability discrimination statutes, but interpreting provide reasonable accommodations in the rules, State Human Rights Law to be more protective procedures, and practices of a housing facility "when based on different statutory definition].) For this such accommodations may be necessary to afford said reason, absent a difference in statutory text or person with a disability equal opportunity to use and state court authority interpreting state law more enjoy a dwelling." (Executive Law § 296 [18] [2].) Thus, broadly, the Supreme Court's interpretation of the persons with disabilities are entitled to accommodations ADA and section 504 is persuasive authority here. [***17] [**853] from generally applicable rules that limit their ability to enjoy the use of a dwelling on the [***15] For example, in Ocean Gate Associates same terms as nondisabled persons. For example, in Page 6 194 Misc. 2d 774, *782; 754 N.Y.S.2d 846, **853; 2003 N.Y. Misc. LEXIS 95, ***17

Dopico, the reasonable accommodation ensured that a treatment she has been receiving for her condition, Jean disabled tenant would not be victimized because of the Doe needs to be able to wear feminine clothing, including individual's disability. Thus, by providing disabled dresses and skirts now banned under the ACS-approved persons with the right to have a dog, the accommodation dress policy. The evidence before the court establishes sought to grant wheelchair bound disabled tenants the that, because of her disability, Jean Doe experiences security enjoyed by nondisabled tenants. significant emotional distress if denied the right to wear such feminine clothing. Indeed, the treatment she has Section 292 (21-e) further defines the term received for her GID calls for her to wear feminine "reasonable accommodation." That section provides that clothing, including dresses and skirts. Granting her an "reasonable accommodation" means "actions taken which exemption from the dress policy avoids this permit an employee, prospective employee or member psychological distress. Moreover, it allows Ms. Doe the with a disability to perform in a reasonable manner the equal opportunity to use and enjoy the facilities at activities involved in the job or occupation sought or held Atlantic Transitional--a right that would be denied to her ...; provided, however, that such actions do not impose an if forced to endure psychological distress as a result of undue hardship on the business, program or enterprise of the ACS' dress policy. As in Dopico, because of this the entity from which the action is requested." (Executive particularized showing of need, the exemption is a Law § 292 [21-e].) This section tells us that a covered reasonable one. entity need not offer all accommodations sought by an individual with a disability. If the proposed The only difference [***20] between this case and accommodation would pose an undue hardship on the Dopico is that Doe seeks an accommodation because the entity or is [***18] otherwise unreasonable, no liability ACS dress policy conflicts [**854] with her GID and the arises from the failure to provide it. psychological treatment she is receiving, whereas the tenant in Dopico needed an accommodation because the In Barnett, the United States Supreme Court set out a no pet clause conflicted with the tenant's physical burden-shifting scheme for reasonable accommodation limitations, depriving the tenant of the security a guard cases. Plaintiff generally bears the burden of proving that dog could bring. That Dopico involved a physical the proposed accommodation "seems reasonable on its disability and this case a mental disability is, of course, of face, i.e., ordinarily or in the run of cases." (Barnett, 535 no moment. The State Human Rights Law protects both U.S. at 401; see also 535 U.S. at 409-410 [O'Connor, J., kinds of disabilities and requires the provision of concurring].) If plaintiff makes this showing, the burden reasonable accommodations to both physically and shifts to the defendant to show that the accommodation, emotionally disabled persons. though reasonable as a general matter, imposes an undue hardship on the defendant due to the defendant's ACS concedes that the State Human Rights Law particularized circumstances. (Id. 535 U.S. at 401.) applies to the policies it enacts for the foster care residents in its custody, but denies any failure to make a As Dopico shows, the New York case law makes required reasonable accommodation. It makes three clear that exempting a disabled person from a generally separate arguments in an attempt to avoid the conclusion applicable regulation is a reasonable accommodation that it failed to make a reasonable accommodation to Jean where there is a particularized showing of need for that Doe's disability. exemption arising from the individual's disability. For example, in Dopico, the court [*783] found that a First, ACS asserts that it did not know that Jean Doe disabled tenant who was confined to a wheelchair was was disabled, and thus was not aware of the need to entitled to keep a dog in violation of a no pet clause provide an accommodation to her. This argument "upon proof of a specific, particularized need to keep a requires little comment. The record evidence leaves no dog, which need arises [***19] out of the handicap." [***21] doubt that respondents were aware of Jean Doe's (Dopico, 109 Misc.2d at 775.) condition. Respondents knew that she [*784] needed to wear feminine clothing. Indeed, because she did so, in Based on the record before the court, the court March 2002, both Atlantic Transitional and ACS concludes that exempting Jean Doe from the Atlantic announced their policy forbidding the wearing of skirts Transitional dress policy is a reasonable accommodation. and dresses as items of feminine clothing at Atlantic The record establishes that, because of her GID and the Page 7 194 Misc. 2d 774, *784; 754 N.Y.S.2d 846, **854; 2003 N.Y. Misc. LEXIS 95, ***21

Transitional. Yet this was the very time, when on March of the Rehabilitation Act, a disabled school teacher who 7, 2002, Family Court Mental Health Services' evaluation [*785] suffered from tuberculosis could be fired because of Jean Doe included the diagnosis "302.85 Gender she had a contagious disease. The Court refused to carve Identity Disorder, in Adolescence." The diagnosis was out an exception to federal disability discrimination law contained in a report prepared in connection with the because the employee suffered from a contagious disease. Family Court proceeding before Judge Rand, in which "Allowing discrimination based on the contagious effects ACS and Atlantic Transitional participated. Moreover, of a physical impairment would be inconsistent with the respondents were aware of Ms. Doe's prior placement basic purpose of § 504, which is to ensure that through ACS in foster care facilities designed for children handicapped individuals are not denied jobs or other who are gay, lesbian, bisexual or transgendered. Finally, benefits because of the prejudiced attitudes or the Jean Doe testified at the preliminary injunction hearing ignorance of others." (Id. at 284.) The Court directed that she specifically informed Mr. Antoine that her need lower courts to make an individualized inquiry to [***24] to wear feminine clothing stemmed from her GID and determine whether a disabled person posed a direct threat treatment she was receiving for GID. Respondents failed to others. "Such an inquiry is essential if § 504 is to to offer any evidence specifically controverting this achieve its goal of protecting handicapped individuals testimony. Respondents' assertion that they were from deprivations based on prejudice, stereotypes, or unaware of Jean Doe's disability [***22] is wholly unfounded fear, while giving appropriate weight to such unpersuasive. legitimate concerns of grantees as avoiding exposing others to significant health and safety risks." (Id. at 287.) Second, ACS argues that it has provided a limited accommodation to Jean Doe, permitting her to wear ACS asserts that its dress policy is necessary to certain feminine clothing, i.e., blouses, makeup, and protect the safety of residents and staff. According to Dr. augmented breasts, and that any broader accommodation Antoine, it was necessary to restrict the kind of dress would be unreasonable because it would jeopardize the worn by Jean Doe because a male in feminine clothing safety of the residents and staff of Atlantic Transitional. creates a "sexual dynamic ... that can lead to unsafe and In short, ACS asserts that Ms. Doe's request to wear the emotionally harmful sexual behavior." Further, at the range of feminine clothing at the facility would not be a facility, "there are many boys who are not emotionally reasonable accommodation because it would threaten the mature and who feel confused or threatened by the safety and security of the institution. 8 presence of a transgendered boy among them and are prone to act out when Jean is nearby." 8 Respondents frame this argument in terms of the reasonableness of Doe's accommodation. The court is not persuaded that Mr. Antoine's They do not argue that the accommodation, if concerns render the accommodation sought by Jean Doe reasonable, would pose an undue burden. an unreasonable one. The premise of respondents' argument is that cross-dressing by a resident can lead to It is, of course, well established that a disabled unsafe sexual behavior and other inappropriate conduct. person is not entitled to an accommodation that would [***25] But respondents permit Jean Doe to wear a jeopardize the health and well-being of others. (Cf. number of different kinds of feminine clothing without Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S. Ct. jeopardizing the safety of the facility and its residents. As 2045, 153 L. Ed. 2d 82 [2002] [upholding regulation respondents freely admit, Jean Doe is allowed to wear authorizing [***23] refusal to hire disabled employee fake breasts, makeup, women's blouses, scarves, nails, where worker's disability on the job would pose a direct hair weaves and other female clothing while at Atlantic threat to himself and others].) At the same time, courts Transitional. Respondents cannot explain why she may must be wary of adverse treatment visited on persons safely wear these feminine items of clothing and with disabilities based [**855] on a need to protect accessories, but may not wear skirts or dresses without others from them, lest overbroad generalizations about a endangering the safety of the facility and its residents. 9 disability be used as justification for discrimination. "As a means of pursuing the objective of [safety] that respondents now articulate, the [dress policy] is so In School Board of Nassau County, Fla. v. Arline [*786] woefully underinclusive as to render belief in that (480 U.S. 273, 94 L. Ed. 2d 307, 107 S. Ct. 1123 [1987]), purpose a challenge to the credulous." (Republican Party the Supreme Court considered whether, under section 504 Page 8 194 Misc. 2d 774, *786; 754 N.Y.S.2d 846, **855; 2003 N.Y. Misc. LEXIS 95, ***25 of Minn. v. White, 536 U.S. 765, 780, 122 S. Ct. 2528, exclude Ms. Doe from housing. The question here 2537, 153 L. Ed. 2d 694 [2002].) There is simply no is whether the city can restrict Jean Doe's wearing rational basis for treating dresses and skirts differently of certain feminine clothing based on its claim than the other feminine acoutrements which Jean Doe that such clothing will jeopardize the institutional may now wear. In these circumstances, the city's safety of Atlantic Transitional. For the reasons purported safety concerns provide no basis for rejecting explained above, the city's safety justification fails Doe's accommodation as unreasonable. 10 because there is no rational distinction, in terms of institutional safety, between the feminine clothing 9 Moreover, the altercations involving Jean Doe permitted and that banned under the city's policy. of which ACS complains occurred when she was not wearing a skirt or dress. The problems [***27] Third, respondents point to the fact that the presented by Jean Doe's deportment are separate city previously placed Doe in foster [**856] care from her dress. (See, Doe ex rel. Doe v. Yunits, facilities designed for gay, lesbian, bisexual, and 2000 WL 33162199, 2000 Mass Super LEXIS transgendered youth--facilities in which there were no 491.) restrictions on Doe's right to dress in a feminine [***26] manner--and that Doe was ejected from these facilities 10 To support their argument that their dress because of her own misconduct. Respondents claim that policy does not offend the State Human Rights because Doe was ejected from these facilities, she should Law, the city relies on Matter of New York City not be heard to complain about Atlantic Transitional's Hous. Auth. Tenant Selection Div. v. State Human dress policy. The court disagrees. The ACS' obligation to Rights Appeal Bd. (59 A.D.2d 742, 398 N.Y.S.2d act in a nondiscriminatory fashion is not satisfied merely 562 [2d Dept 1977]) and Matter of Custodio v. by providing a small number of facilities at which Popolizio (139 Misc.2d 391, 527 N.Y.S.2d 333 children with GID are assured nondiscriminatory [Sup Ct, NY County 1987]). In Tenant Selection, treatment. At each and every facility run and operated by the Appellate Division upheld the city's denial of the ACS, it must comply with the Human Rights Law's eligibility for housing to a disabled person mandate to provide reasonable accommodations to because the tenant "could well be a menace to the persons [*787] with disabilities. That Doe engaged in elderly and disabled tenants with whom she misconduct that led to her expulsion from the foster care would reside." (59 A.D.2d at 744.) Based on the facilities designed for gay, lesbian, bisexual, and prospective tenant's long history of destructive transgendered youth gives ACS no license to discriminate and other inappropriate behavior, the Court found against her by denying her a reasonable accommodation. no evidence to support the conclusion that the denial was based on the tenant's disability. In Accordingly, the court finds that respondents have Custodio, the court held that the city's housing refused to accommodate reasonably [***28] Doe's GID authority was entitled to consider information in violation of the New York State Human Rights Law. relating to a tenant's disability in deciding whether Doe is therefore entitled to relief in the form of an that tenant could be placed in public housing. exemption from respondents' dress policy, to the extent it Because the city could deny housing to a tenant bars her from wearing skirts and dresses at the Atlantic who caused substantial disturbance to others, the Transitional congregate foster care facility. Because the court held that the city was entitled to information court finds that Doe is entitled to relief on her disability regarding the proposed tenant's disability to discrimination claim, the court need not reach her determine if the tenant could meet the standards alternative bases for relief. of conduct reasonably required of tenants. (Custodio, 139 Misc.2d at 392-393.) These cases Accordingly, the petition of Jean Doe is granted. are inapposite here. Although the city does point Petitioner's motion for a preliminary injunction is out that Ms. Doe caused some disturbances at permitted to be withdrawn. Atlantic Transitional, the city does not seek to Page 1

R.G., an individual; C.P., an individual by and through her next friend, A.W.; and J.D., an individual, Plaintiffs, vs. LILLIAN KOLLER, Director of the State of Hawai'i Department of Human Services, in her individual and official capacities; SHARON AGNEW, Director of the Office of Youth Services, in her individual and official capacities; KALEVE TUFONO-IOSEFA, Hawai'i Youth Correctional Facility Administrator, in her individual and official capacities; et al., Defendants.

CIVIL NO. 05-00566 JMS/LEK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

415 F. Supp. 2d 1129; 2006 U.S. Dist. LEXIS 24968

February 7, 2006, Decided

SUBSEQUENT HISTORY: Injunction granted at R.G. ("YCO"), in her individual and official capacities, v. Koller, 2006 U.S. Dist. LEXIS 21254 (D. Haw., Mar. 1, Defendant: Blair A. Goto, Heidi M. Rian, John F. Molay, 2006) Kendall J. Moser, Lisa [**2] M. Ginoza, William J. Wynhoff, Office of the Attorney General-State of COUNSEL: [**1] For R.G., an individual, C. P., an Hawaii, Honolulu, HI. individual by and through her next friend, A. W., J.D., an individual, A. W., next friend of C. P., and individual, For Phyllis Rosete, YCO, in her individual and official Plaintiffs: Angela Padilla, Matthew I. Hall, Natalie capacities, Leila Holloway, YCO, in her individual and Naugle, Morrison & Foerster LLP, San Francisco, CA.; official capacities, Mitch Simao, YCO, in his individual Derik T. Fettig, Morrison & Foerster LLP, Los Angeles, and official capacities, Lawrence Alvaro, YCO, in his CA.; Lois K. Perrin, American Civil Liberties Union of individual and official capacities, Richard Koehler, YCO, Hawaii, Honolulu, HI.; Mei-Fei Kuo, Paul Alston, Alston in his individual and official capacities, Robert Michael Hunt Floyd & Ing, Honolulu, HI.; Tamara Lange, ACLU Kim, YCO, in his individual and official capacities, Foundation, Lesbian & Gay Rights Project, San Defendants: Blair A. Goto, Heidi M. Rian, John F. Francisco, CA. Molay, Kendall J. Moser, Lisa M. Ginoza, Office of the Attorney General-State of Hawaii, Honolulu, HI.; Dennis For Lillian Koller, Director of the State Department of K. Ferm, Department of the Attorney General-State of Human Services, in her individual and official capacities, Hawaii, Honolulu, HI, US.; Hugh R. Jones, Attorney Sharon Agnew, Director of the Office of Youth Services, General of Hawaii, Dept of the Attorney General,State of in her individual and official capacities, Kaleve HI, Honolulu, HI. Tufono-Iosefa, Hawaii Youth Correctional Facility Administrator, in her indvidual and official capacities, For Earlene Josiah, YCO, in her individual and official Defendants: Blair A. Goto, Heidi M. Rian, John F. capacities, Defendant: Blair A. Goto, Heidi M. Rian, Molay, Kendall J. Moser, Lisa M. Ginoza, Office of the John F. Molay, Kendall J. Moser, Lisa M. Ginoza, Office Attorney General-State of Hawaii, Honolulu, HI. of the Attorney General-State of Hawaii, Honolulu, HI.; Cora K. Lum, Renee N.C. Schoen, Office of the Attorney For Cynthia Hubbell, Youth Corrections Officer General-Hawaii, Honolulu, HI. Page 2 415 F. Supp. 2d 1129, *; 2006 U.S. Dist. LEXIS 24968, **2

For Henry Haina, HYCF Investigator, in his individual preliminary injunction as to their Establishment Clause and [**3] official capacities, Defendant: Blair A. Goto, and access to counsel claims. The court does not reach Heidi M. Rian, John F. Molay, Kendall J. Moser, Lisa M. the plaintiffs' Equal Protection claim. Ginoza, Office of the Attorney General-State of Hawaii, Honolulu, HI.; Brian P. Aburano, Russell A. Suzuki, I. BACKGROUND Office of the Attorney General-Hawaii, Honolulu, HI. HYCF is a secure juvenile correctional facility JUDGES: J. Michael Seabright, United States District operated by the State of Hawaii Office of Youth Services Judge. ("OYS") and located in Kailua, Hawaii. OYS is administratively associated with the Department of OPINION BY: J. Michael Seabright Human Services ("DHS"). Children who have been adjudicated delinquent in OPINION court may be committed to HYCF, [**5] the only such [*1132] ORDER GRANTING IN PART AND secured facility in the State of Hawaii. (Department of DENYING IN PART PLAINTIFFS' MOTION FOR Justice Report ("DOJ Report") at 3, attached as Ex. B to 1 PRELIMINARY INJUNCTION the Declaration of Lois Perrin ("Perrin Decl.") .) HYCF is separated into three housing units: the Secured Care ORDER GRANTING IN PART AND DENYING IN Facility, which is comprised of three housing modules for PART PLAINTIFFS' MOTION FOR PRELIMINARY boys; the Observation and Assessment Cottage ("O&A") INJUNCTION for girls; and Ho'okipa Makai, a cottage for housing short-term boys. (Declaration of Kaleve Tufono-Iosefa Based on a 2004 investigation of the conditions at ("Tufono-Iosefa Decl.") PP 6-9.) the Hawaii Youth Correction Facility ("HYCF"), the United States Department of Justice ("DOJ") found it "no 1 The DOJ Report, admissible pursuant to Fed. exaggeration to describe HYCF as existing [*1133] in a R. Evid. 803(8), makes detailed factual findings state of chaos." After reviewing the extensive pleadings regarding the conditions, policies, patterns and filed by the parties and holding an evidentiary hearing, practices at HYCF as of October 2004. Those the court finds that the DOJ finding is in fact not findings are the result of a thorough on-site exaggerated. investigation by neutral investigators from a government agency charged with the Plaintiffs filed a motion for preliminary injunction responsibility of seeking "remedies for any seeking relief on their Due Process, Equal Protection, pattern or practice of conduct that violates the Establishment Clause and access to counsel claims. constitutional or federal statutory rights of Plaintiffs ask the court to require defendants to refrain children in juvenile justice institutions." (DOJ from harassing, abusing, discriminating against, or Report at 1.) Although the DOJ Report does not isolating [**4] plaintiffs based on their actual or specifically address the issues now confronting perceived sexual orientation, gender identity or sex; to the court -- the treatment of LGBT wards at refrain from failing to protect plaintiffs from anti-lesbian, HYCF -- the Report's findings are fully consistent gay, bisexual, and transgender ("LGBT") peer harassment with the findings contained in this order. and abuse; to refrain from endorsing religion and engaging in religious indoctrination; and to refrain from [**6] Plaintiffs are three teenagers who have been obstructing plaintiffs' access to counsel. Plaintiffs also confined at the HYCF and who either identify as or are ask the court to direct defendants to retain a mutually perceived to be LGBT. Each of the plaintiffs has been agreed-upon corrections expert to guide development and confined at HYCF on more than one occasion. Plaintiffs implementation of necessary policies, procedures, and sought and received permission to proceed in this action training at HYCF. using pseudonyms.

For the reasons stated herein, the court GRANTS the Plaintiff R.G. is a gay female who has been confined plaintiffs' motion for a preliminary injunction as to their at HYCF on three occasions, for a total of approximately Due Process claim and DENIES their motion for fifteen months. (Declaration of R.G. ("R.G. Decl.") PP 2, Page 3 415 F. Supp. 2d 1129, *1133; 2006 U.S. Dist. LEXIS 24968, **6

3, 7, 44-47.) R.G. was first confined at HYCF from hearing, both the plaintiffs and the government called March 2004 to June 2004. (R.G. Decl. PP 2, 3, 7, 44-47; witnesses and submitted declarations and exhibits. The Ex. G to Tufono-Iosefa Decl.) R.G. was later returned to court bases its decision on all of the evidence submitted. HYCF in August 2004 and remained there until August 2005. (R.G. Decl. P 7; Ex. G to Tufono-Iosefa Decl.). II. LEGAL STANDARD R.G. was returned to HYCF a third time on September 8, 2005, after the [*1134] Complaint in this action had In determining whether to grant a preliminary been filed. (R.G. Decl. P 47.) injunction, the courts in the Ninth Circuit have traditionally considered the following factors: Plaintiff J.D. is a boy who was perceived to be gay while at HYCF. HE has been confined at HYCF on two (1) the likelihood of plaintiff's success occasions, for a total of approximately six months. J.D. on the merits; (2) the possibility of was first confined at HYCF from July 27, 2004 until plaintiff's suffering irreparable injury if January 4, 2005. (Ex. I to Tufono-Iosefa Decl.; relief is not granted; (3) the extent to Declaration of J.D. ("J.D. Decl.") P 48.) J.D. was which the balance of hardships favors the returned to HYCF a second time on [**7] June 20, 2005 respective parties; and (4) in certain cases, and remained there until July 5, 2005. (J.D. Decl. PP 50, whether the public interest will be 53; Ex. I to Tufono-Iosefa Decl.) advanced by the provision of preliminary relief. Plaintiff C.P. is a transgender girl who was first confined at HYCF in February 2004. (Declaration of C.P. United States. v. Odessa Union Warehouse Co-op, 833 ("C.P. Decl.") P 10.) C.P. remained at HYCF for most of F.2d 172, 174 (9th Cir. 1987) [**9] (citation omitted). 2004, excepting a short-lived foster placement in July of "To obtain a preliminary injunction, the moving party 2004. (C.P. Decl. PP 11, 25.) C.P. was placed in a foster must show either (1) a combination of probable success program in December of 2004 and remained in foster on the merits and the possibility of irreparable injury or placements until her return to HYCF in August of 2005, (2) that serious questions are raised and the balance of shortly before the Complaint was filed in this action. hardships tips in its favor." Id. These standards represent (C.P. Decl. PP 51-52.) C.P.'s confinement at HYCF two extremes on a continuum in which "the required totaled approximately eight months. degree of irreparable harm increases as the probability of success decreases." Id. See also Dymo Indus., Inc. v. Defendants are, in their individual and official Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964) capacities: Lillian Koller, Director of the DHS; Sharon ("The grant of a preliminary injunction is the exercise of Agnew, Director of OYS; and Kaleve Tufono-Iosefa, the a very far reaching power never to be indulged in except HYCF Administrator ("Youth Facility Administrator" or in a case clearly warranting it."). In addition, "YFA"). The court refers to Koller, Agnew, and "advancement of the public interest" is one of [*1135] Tufono-Iosefa collectively as the "supervisory the "traditional equitable criteria for granting a defendants." The following Youth Corrections Officers preliminary injunction." Mayweathers v. Newland, 258 ("YCOs") and Youth Corrections Supervisors ("YCSs") F.3d 930, 938 (9th Cir. 2001) (citation omitted). are also defendants: YCO Cynthia Hubbell, YCS Phyllis Rosete, YCO Earlene Josiah, YCO Leila Holloway, YCO On this motion, plaintiffs seek mandatory relief in Henry Haina (also an HYCF Investigator), YCO Richard addition to a prohibitory injunction, in the form of an [**8] Kohler, former YCO and current YCS Mitch order directing defendants to retain a mutually agreeable Simao, and YCO Michael Kim. expert to guide them in reforming practices prohibited by the court. Plaintiffs contend that defendants lack [**10] The defendants challenged the plaintiffs' standing to the expertise necessary to prevent further violations of seek injunctive relief and the court heard argument on the plaintiffs' rights; the plaintiffs also contend that the standing issue on November 21, 2005. At the November defendants lack the expertise necessary to select an expert 21, 2005 hearing, the court ruled that the plaintiffs have to guide them in reforming their practices. When a party standing; the court provides its reasoning for that decision "seeks mandatory preliminary relief that goes well in this order. The court held an evidentiary hearing on the beyond maintaining the status quo pendente lite, courts plaintiffs' motion on December 20-21, 2005. At the Page 4 415 F. Supp. 2d 1129, *1135; 2006 U.S. Dist. LEXIS 24968, **10

should be extremely cautious about issuing a preliminary engaging in unconstitutional conduct and requiring them injunction." Martin v. Int'l Olympic Comm., 740 F.2d to implement policies and procedures to ensure the 670, 675 (9th Cir. 1984). Nevertheless, it is appropriate plaintiffs' safety at HYCF. Because the conditions at to issue a mandatory preliminary injunction when both HYCF caused the injury to the plaintiffs, enjoining "the facts and law clearly favor the moving party." Dahl certain unconstitutional conduct and requiring defendants v. HEM Pharm. Corp., 7 F.3d 1399, 1403 (9th Cir. to implement policies and procedures to remedy those 1993). conditions will remedy the plaintiffs' injury.

III. ANALYSIS The injury-in-fact requirement poses a more difficult question. The plaintiffs seek injunctive relief, yet none of A. The Plaintiffs Have Satisfied the Article III Case or the [*1136] plaintiffs was incarcerated at HYCF at the Controversy Requirement time the Complaint was filed. A plaintiff seeking injunctive relief must show that he or she "can reasonably Article III, section 2 of the United States expect to encounter the same injury in the future." 13 Constitution confines federal courts to deciding cases or Charles Alan Wright, Arthur R. Miller, & Edward H. controversies. A plaintiff in a federal case must show that Cooper, Federal Practice and Procedure § 3531.2 (2d ed. an actual controversy exists at all stages of the case. 1984) (citing Los Angeles v. Lyons, 461 U.S. 95, 103 S. Arizonans for Official English v. Arizona, 520 U.S. 43, Ct. 1660, 75 L. Ed. 2d 675 (1983)). See also Armstrong v. 67, 117 S. Ct. 1055, 137 L. Ed. 2d 170 (1997). No case or Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) ("Where, as controversy exists if a plaintiff lacks standing to make the here, a plaintiff [**13] seeks prospective injunctive claims [**11] asserted. See White v. Lee, 227 F.3d 1214, relief, he must demonstrate 'that he is realistically 1242 (9th Cir. 2000) (stating that standing pertains to a threatened by a repetition of [the violation].'" (Quoting federal court's subject matter jurisdiction). Lyons, 461 U.S. at 109.) (Final alteration in original.)); 1. The Plaintiffs Have Standing LaDuke v. Nelson, 762 F.2d 1318, 1324 (9th Cir. 1985) (plaintiff must show a "likelihood of similar injury in the Standing is determined based on the facts at the time future"). of filing of the complaint. Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001). To have standing, a In order to satisfy the likelihood-of-repetition plaintiff must demonstrate: (1) An injury in fact, that is, requirements, the plaintiffs must show: (1) They an invasion of a legally protected interest that is concrete reasonably expected, at the time of filing the Complaint, and particularized, as well as actual or imminent; (2) a to be returned to HYCF; and (2) they reasonably causal relationship between the injury and the challenged expected, at the time of filing the Complaint, that if conduct; and (3) a likelihood that the injury will be returned, they would be subjected to similar conditions. redressed by a favorable decision. Lujan v. Defenders of Plaintiffs' showing suffices on both counts. Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. First, the plaintiffs have shown that, as of September Ed. 2d 351 (1992). 1, 2005 (when they filed the Complaint), each plaintiff The plaintiffs easily meet the second two standing was likely to return to HYCF. When the Complaint was requirements, causation and redressability. Causation filed, plaintiff R.G. was on parole from HYCF and was exists because the plaintiffs' injuries -- pervasive residing at the Sand Island Treatment Center. Prior to this youth-on-youth and staff-on-youth harassment, placement, R.G. had been incarcerated at HYCF on two discrimination, and abuse -- allegedly result directly from separate occasions. First, she spent three months at HYCF's lack of adequate policies and procedures. The HYCF beginning in March 2004. She was then released defendants run a secured youth facility, and they control to a treatment program at the Bobby Benson [**14] and bear ultimate responsibility for [**12] the Center where she remained for a short time before environment they create at that facility. running away. On August 4, 2004, R.G. was returned to HYCF. She spent over a year at the facility before being It follows that the plaintiffs' injuries are likely to be released on parole to the Sand Island Treatment Center redressed if the relief they seek is granted. The plaintiffs on August 24, 2005. By September 29, 2005, when seek an injunction preventing the defendants from plaintiffs filed their Amended Complaint, R.G. had been Page 5 415 F. Supp. 2d 1129, *1136; 2006 U.S. Dist. LEXIS 24968, **14

incarcerated at HYCF for a third time after the Sand at 2; see also Declaration of Melvea Hardy ("Hardy Island Treatment Center sent her back to HYCF on Decl.") PP 7-9.) YFA Tufono-Iosefa testified that a September 8, 2005. "conservative estimate" was that five youths were returned to HYCF from parole each month. (Tr. I. at As of the filing of the Complaint, J.D. had been 192:20-24.) With respect to wards who, like J.D., are on incarcerated at HYCF on two separate occasions. First, probation, the AG found that "commitments for probation J.D. was at HYCF from July 17, 2004 to January 4, 2005, revocation accounted for 27%" of first-time commitments when he was released to an independent living facility. to HYCF. (Ex. 1 (AG Report) to Supp. Perrin Decl. at 2); He was returned to HYCF on June 20, 2005 for see also Declaration of Carolyn Brown ("Brown Decl.") noncompliance with house rules. He then remained at PP 12-14.) The likelihood that the plaintiffs would return HYCF until July 5, 2005, his eighteenth birthday. Shortly to HYCF was therefore neither remote nor speculative. after leaving HYCF, J.D. went to family court for conduct that took place while he was a juvenile placed at The defendants argue that the plaintiffs do not have HYCF. As a result, J.D. was placed on probation until his standing because they will only return to HYCF if they nineteenth birthday. violate the law. They cite Lyons and its progeny for the proposition that "standing is inappropriate where the When the Complaint was filed, C.P. had been future injury could be inflicted only in the event [**17] incarcerated at HYCF on three separate occasions. She of future illegal conduct by the plaintiff." Armstrong, 275 was first incarcerated from February 2004 to July 2004, F.3d at 865 (citing Lyons, 461 U.S. at 108). The Ninth when she was released to a foster parent. C. [**15] P. Circuit, however, has distinguished Lyons when the then returned to HYCF only a few weeks later after conduct that may trigger a future violation is not running away from her foster parent. She then remained unlawful. In Armstrong, parolees had standing to at HYCF until December 23, 2004 when she was released challenge the conditions at parole revocation hearings to another foster home. C.P. remained at this second because parolees could be subjected to unconstitutional home until August 10, 2005 when she returned to HYCF conditions at the hearings on the mere suspicion that they for one week before being released to live with her had violated their parole. Armstrong, 275 F.3d at 866; see parents. also Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041 (9th Cir. 1999) (holding that plaintiffs had standing to Each of the plaintiffs has been incarcerated at HYCF challenge stops by the United States Border Patrol two to three times over a relatively short period of time. because plaintiffs could be stopped without engaging in Each had been released only to return to HYCF a short illegal conduct). time later. The plaintiffs' experiences thus indicate that, at the time the Complaint was filed, each plaintiff was likely The plaintiffs in this case need not engage in illegal to return to HYCF. See Demery v. Arpaio, 378 F.3d conduct to be returned to HYCF. (Ex. 1 (AG Report) to 1020, 1027 (9th Cir. 2004) (affirming entry of a Supp. Perrin Decl. at 13-15 (identifying legal behavior preliminary injunction based on determination that that can result in return to HYCF)); Declaration of plaintiffs who had been arrested and incarcerated Shauna Kamaka ("Kamaka Decl.") PP 5-9; Ex.1 to [*1137] repeatedly were likely to be re-incarcerated and Kamaka Decl.; Hardy Decl. PP 8-9; Ex. 3 to Brown subjected to the same unconstitutional conditions), cert. Decl.; Brown Decl. P 14.) In fact, as demonstrated in the denied, 125 S. Ct. 2961, 162 L. Ed. 2d 887 (2005). declaration of HYCF [**18] social worker Melvea Hardy, HYCF parolees can be returned not only for a Moreover, statistics regarding parole revocation violation of a condition of parole, but also at the request further confirm plaintiffs' reasonable expectation of of a program where the ward is placed. Hardy explains, return to HYCF as of the time of filing. During the fiscal as an example, that Sand Island Treatment residents can years 1996-1998, recidivism rates were as follows: vote wards "off the island," resulting in a return to HYCF [**16] 82.2 percent of released wards were rearrested; even though the ward committed no misconduct. (Hardy 57.3 percent of released wards were re-convicted; and Decl. PP 8-9.) 32.2 percent of released wards were re-confined at HYCF or a secure adult facility. (Ex. 1 (Attorney General of At the time of filing, plaintiffs C.P. and R.G. were on Hawaii Report to OYS Feb. 2001 ("AG Report")) to parole from HYCF and thus subject to return at any time, Supplemental Perrin Declaration ("Supp. Perrin. Decl.") Page 6 415 F. Supp. 2d 1129, *1137; 2006 U.S. Dist. LEXIS 24968, **18

for any number of reasons, including breaking curfew, ("11/21 Tr.") at 15:9-16:20.) However, defendants' not following program rules, not attending school on a asserted intentions do not moot R.G.'s claims. regular basis, running away, or even quitting a job. (Kamaka Decl. P 9; Ex. 1 to Kamaka Decl.) Plaintiff J.D. 2 Defendants have not asserted that J.D.'s claims was on probation and subject to return to HYCF until his for injunctive relief are moot and there have been nineteenth birthday, in July 2006, for any violation of the no changed circumstances since the filing of the terms of his probation. (See Brown Decl. PP 9-13; Exs. Complaint that would suggest his claims have 1-3 to Brown Decl.) Plaintiffs presented evidence that become moot. they could be returned to HYCF for mere suspicion of [*1138] misconduct that falls well short of unlawful Defendants have not met their "heavy burden" to activity or even because of third-party conduct. (Ex. 1 to submit evidence of events subsequent to filing that Kamaka Decl.; Kamaka Decl. PP 5-9; Hardy Decl. PP deprive R.G. of a continuing interest in conditions at 8-9.) Indeed, R.G. alleges that she was returned from the HYCF. Demery, 378 F.3d at 1025. [**21] Enesa's [**19] Sand Island facility based on no misconduct of statement of intent to recommend that R.G. not be her own. (R.G. Decl. P 45.) returned to HYCF neither establishes that she will not be sent back to HYCF nor gives her the relief she has Second, the plaintiffs have shown that if they are requested. Accordingly, her claims are not moot as the returned to HYCF they will be subject to the same court still can grant her effectual relief. allegedly unconstitutional conditions that formed the basis of their Complaint. The unconstitutional conditions Where an assertion of mootness is based on at HYCF are alleged to be systemic. Plaintiffs contend defendants' voluntary cessation of a challenged practice, that HYCF lacks the policies and procedures necessary to the test for mootness is especially "stringent" and prevent the pervasive harassment, discrimination, and defendant bears a "formidable" burden. Friends of the abuse that takes place at the facility. This is not a case, Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. like Lyons, where the alleged conduct occurred as an 167, 189-90, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000). isolated incident that was not the result of a policy or First, it must be "absolutely clear that the allegedly larger culture. Rather, plaintiffs' expectations that they wrongful behavior could not reasonably be expected to would be subjected to unconstitutional conditions if recur." Id. (citation omitted). Second, the defendant must returned to HYCF was objectively reasonable in light of demonstrate that "interim relief or events have the repeated and persistent nature of the defendants' completely and irrevocably eradicated the effects of the alleged unconstitutional conduct. See Armstrong, 275 alleged violation." County of Los Angeles v. Davis, 440 F.3d at 861 ("Where the defendants have repeatedly U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979) engaged in the injurious acts in the past, there is a (citations omitted). "The heavy burden of persuading the sufficient possibility that they will engage in them in the court that the challenged conduct cannot reasonably be near future to satisfy the 'realistic repetition' expected to start up again lies with the party asserting requirement."). mootness." Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222, [*1139] 120 S. Ct. 722, 145 L. Ed. 2d 650 On this record, plaintiffs have demonstrated a [**20] (2000) [**22] (internal quotation signals, brackets and reasonable expectation that they will be returned to citation omitted). HYCF and they have shown that, if returned, they are likely to be subjected to the same conditions alleged in Under this standard, Enesa's recommendation that the Complaint. R.G. not be returned to HYCF for her November parole violation does not moot R.G.'s claims. First, neither 2. R.G.'s Claims Are Not Moot2 Enesa nor any of the defendants has the legal authority to detain R.G. at a facility other than HYCF. (11/21 Tr. at After plaintiffs filed this motion, and while R.G. was 15:18-16:20.) That determination is subject to the briefly absent from her residential placement program in decisions of the prosecutor's office and the adult court. November 2005, defendants submitted testimony of (11/21 Tr. at 26:24-27:20.) Should the state choose not to HYCF's Parole Administrator, Devon Enesa, asserting prosecute R.G. for her November parole violation, R.G. Enesa's intention to avoid placing R.G. back in HYCF for could be returned to HYCF. (11/21 Tr. at 27:16-20.) a parole violation. (Transcript of 11/21/05 hearing Second, Enesa's recommendation that R.G. go to the Page 7 415 F. Supp. 2d 1129, *1139; 2006 U.S. Dist. LEXIS 24968, **22

adult detention facility following her November parole Evidence regarding C.P.'s experience at HYCF is violation was contingent on R.G. failing to return to her therefore relevant to the remaining plaintiffs' claims program within a specified time period. R.G. ultimately insofar as it shows the extent and nature of the alleged returned to her program within the allotted time, abuse and harassment at HYCF. rendering the recommendation irrelevant. Finally, even if the court assumes that Enesa would make a similar 4. The Defendants' Conduct Since the Filing of the recommendation for R.G. if faced with a future parole Complaint has not Mooted the Plaintiffs' Claims violation, such a recommendation would not insure that R.G. would not return to HYCF; in any event, this HYCF has recently adopted a "Youth Rights" policy assumption is too speculative for the court to conclude that provides that youth should not be discriminated [**23] that the defendants have shouldered their "heavy against on the basis of "sexual orientation." (Ex. [*1140] burden" of showing that R.G. cannot be subjected to the D. to Tufono-Iosefa Decl.) Other than this simple same challenged conduct at HYCF. statement, the current policies at HYCF remain [**25] silent with respect to the treatment and care of LGBT 3. C.P.'s Claims Are Moot youth. (Ex. D. to Tufono-Iosefa Decl.; Hardy Decl. P 4; Declaration of Linda Hadley ("Hadley Decl.") P 8; C.P. was originally subject to HYCF's jurisdiction Supplemental Bidwell Declaration ("Supp. Bidwell until her eighteenth birthday. As C.P. testified, she is no Decl.") P 8.) There is no evidence, aside from the policies longer in custody of HYCF and, because she turned themselves, that HYCF has altered its treatment of LGBT eighteen in December 2005, she cannot be returned to wards. HYCF. (Transcript of 12/20/05 Hearing ("Tr. I") at 135:6-14.) Because there is now no realistic possibility Moreover, defendants' voluntary adoption of new that C.P. will be returned to HYCF, her claims have policies does not moot plaintiffs' claims for injunctive become moot. relief. Again, in cases of voluntary cessation, the defendant bears a "formidable" burden; it must be The plaintiffs argue that C.P.'s claims are not moot "absolutely clear that the allegedly wrongful behavior because C.P. could be prosecuted for conduct that could not reasonably be expected to recur," Friends of the occurred while she was a minor and, as a result, HYCF's Earth, 528 U.S. at 189 (emphasis added), and the jurisdiction could be extended until her nineteenth defendant must demonstrate that "interim relief or events birthday. The plaintiffs point out that HYCF's jurisdiction have completely and irrevocably eradicated the effects of over J.D. was extended until his nineteenth birthday the alleged violation." County of Los Angeles v. Davis, under similar circumstances; shortly after J.D. was 440 U.S. at 631 (citations omitted). Defendants have released from HYCF on his eighteenth birthday, he was made no such showing. prosecuted for conduct that occurred at HYCF while he was a minor and was placed on probation subject to B. The Plaintiffs Are Entitled to a Preliminary return to HYCF as a result. (J.D. Decl. P 54; Brown Decl. Injunction PP 8-11.) In contrast to J.D.'s case, however, several [**24] months have passed since C.P. was released to 1. Findings of Fact live with her parents and there is no indication that she Unless otherwise indicated, the court finds that the will be prosecuted for any conduct that occurred while followings facts have been proven to be more probably she was a minor. Any possibility that C.P. might be true than [**26] not true. To the extent that any of these prosecuted for an act that occurred while she was a findings of fact are conclusions of law, they are to be so minor, returned to the jurisdiction of HYCF, and construed. ultimately incarcerated at HYCF is simply too remote at this point to support standing. Therefore, C.P.'s claims Credibility Determinations have become moot. 1. The findings set forth below are based in part on Though C.P. no longer has standing, the court the court's preliminary credibility determinations. allowed her to testify at the hearing. The plaintiffs allege systemic harassment of LGBT youth at HYCF, as well as 2. Defendants requested, and the court ordered, an differential treatment by staff and administrators. evidentiary hearing on plaintiffs' motion to allow Page 8 415 F. Supp. 2d 1129, *1140; 2006 U.S. Dist. LEXIS 24968, **26

defendants to test the credibility of the plaintiffs. 8. The defendants' theory -- that the plaintiffs concocted this lawsuit in retaliation for HYCF punishing 3. Defendants offered as evidence of bias relevant to them for minor infractions -- simply is not plausible with plaintiffs' credibility a series of instances in which each respect to any of the plaintiffs given the plaintiffs' own plaintiff was disciplined by a defendant YCO for various testimony, the corroboration by Dr. Bidwell, infractions of HYCF rules. contemporaneous complaints by the plaintiffs, and even the testimony of YCO Alvaro. Alvaro, in a conversational 4. The court finds for purposes of this motion that tone and without hesitation, testified about "butchie [4] R.G. was credible as to her relevant testimony concerning things going on" at HYCF as if this term were a part of abuse and harassment, including her testimony that she the everyday discourse at HYCF. did not fabricate allegations in order to retaliate against defendants for discipline they imposed. 3 This 9. The court is concerned about the credibility of preliminary finding is based on: (1) R.G.'s demeanor on Tufono-Iosefa. Tufono-Iosefa declared under oath that the stand; (2) HYCF documents, which provide HYCF's retained experts, Larry Miesner and Nelson contemporaneous corroboration of other material details Griffis, told her that it was appropriate to house of R.G.'s testimony; (3) corroboration by other witnesses, male-to-female ("MTF") transgender youth with the who reported their personal observations to medical staff; boys, and that the norm in juvenile corrections is to house and (4) the expert medical [**27] opinion of Dr. Bidwell wards based on their genitalia. (Tufono-Iosefa Decl. that plaintiffs' contemporaneous and subsequent conduct [**29] PP 10-11, 22.) Both Miesner and Griffis is consistent with that of victims of traumatic harassment. submitted declarations flatly denying that they ever made (Tr. I at 67:9-68:10.) Moreover, R.G.'s stories are such statements. (Declaration of Larry Miesner ("Miesner supported by the testimony of Dr. Bidwell that "every Decl.") Decl. PP 8-10; Declaration of Nelson Griffis single one" of the approximately twelve to fifteen LGBT ("Griffis Decl.") PP 9-11.) Although it is possible that an wards who have been openly LGBT at HYCF have innocent misunderstanding may have occurred, both complained of similar harassment and abuse. (Tr. I at Griffis and Miesner declared that they would not have 75:6-15.) rendered such opinions. Griffis and Miesner declared that, in their professional judgment, housing MTF 5. While the court does have some concern with transgender youth with male wards at HYCF is unsafe C.P.'s admission on the stand that she has made and inappropriate. (Meisner Decl. P 10, Griffis Decl. P untruthful statements in order to get what she wants (Tr. I 11.) At the evidentiary hearing, Tufono-Iosefa elaborated at 146:1-8), the court does not find that her allegations on her declaration testimony but did not explain her against HYCF were fabricated. C.P. generally appeared statement regarding the experts' opinions. honest and forthcoming on the stand. Moreover, her testimony was corroborated in the same manner that 10. Tufono-Iosefa testified that she neither directed R.G.'s testimony was corroborated: through HYCF nor had any knowledge of an April 21, 2005 Internal documents, other witnesses, Dr. Bidwell's observations, Communication Form ("ICF") that memorialized the and [*1141] her own contemporaneous grievances and results of a group meeting of the female wards statements made to medical staff. concerning plaintiff R.G. and her girlfriend T.R. (Tr. I at 187:1-11.) However, Tufono-Iosefa also testified that an 6. The court was also concerned by J.D.'s demeanor ICF ordinarily would not bear her name unless she or her on the stand. J.D. sometimes made faces and appeared secretary created it, and that her secretary would not flippant in his responses to questions. At other times, create the document absent [**30] Tufono-Iosefa's however, J.D. seemed to consider the questions carefully authorization. (Tr. I 208:7-209:15.) and to provide [**28] thoughtful answers. 11. Rebuttal witness Shauna Kamaka, an HYCF 7. On the whole, the court found J.D. credible as to social worker, testified that she received the April 21, his relevant testimony concerning abuse and harassment. 2005 ICF from Tufono-Iosefa's secretary with His testimony was corroborated in the same manner as instructions to review the ICF with R.G. and T.R. R.G.'s and C.P.'s testimony and was not undermined by Kamaka distributed the ICF to other staff members, who the defendants' line of questioning concerning bias. had requested documentation of the newly created rules Page 9 415 F. Supp. 2d 1129, *1141; 2006 U.S. Dist. LEXIS 24968, **30

from the April 20 meeting. 5 (Ex. A to R.G. Decl.; "butchy action").) Transcript of 12/21/05 Hearing ("Tr. II") at 62:10-64:14 (Kamaka).) 16. Defendant Hubbell regularly referred to R.G. and other female wards as "fucking bitches" or "fucking 12. Though the court cannot conclude that cunts," and referred to female wards who identify as gay, Tufono-Iosefa authored the ICF or provided false who express romantic feelings for other girls or who fail testimony, the court is left with two possible explanations to conform to sex stereotypes as "butchie." Though for the document, [*1142] both of which are highly Hubbell denies making these statements, the court finds troubling: (1) Tufono-Iosefa authored the ICF and lied credible the testimony of the three rebuttal witnesses who under oath about doing so; or (2) conditions at HYCF are heard Hubbell using these slurs regularly. (Tr. II at so chaotic that a document purportedly authored by the 71:1-72:11 (Hadley); 86:9-16 (R.G.); 88:5-88:16 (J.D.).) YFA containing new rules to be enforced against the For example, HYCF nurse practitioner Linda Hadley wards can be circulated among staff and wards without credibly testified in rebuttal that Hubbell "on almost a Tufono-Iosefa's knowledge. daily basis" used phrases such as "fucking little bitches," "butchies," and "fucking cunts." (Tr. II at 71-72.) 13. The court finds that Dr. Bidwell, Linda Hadley, YCO Alvaro, and YCO Rosete were all credible. 17. Defendant Tufono-Iosefa held a group meeting on April 20, 2005 focusing on R.G.'s romantic 3 The court reviewed the deposition testimony of relationship with another female ward, T.R. (R.G. Decl. HYCF ward J.N. along with the objections filed PP 27-35; Tufono-Iosefa Decl. P 37; Tr. I at by the parties. The court finds that J.N.'s 183:16-187:15) During this meeting, Tufono-Iosefa testimony does not undermine R.G.'s credibility. expressed her own views that being gay was "wrong" and [**31] "disgusting" and required [**33] the other wards to 4 The Oxford English Dictionary defines the develop rules and punishments for R.G. and T.R. (R.G. word "butch" as "a lesbian of masculine Decl. PP 27-35; Hadley Decl. P 3; Tr. II at 74:6-76:1 appearance or behaviour." (Hadley).) Though Tufono-Iosefa denies making these 5 There was inconsistency in the testimony statements (Tr. I at 199:4-18), Hadley credibly testified regarding whether the meeting occurred on April that two to four wards were upset after the meeting and 20 or April 21. The ICA was dated April 21. related to her (Hadley) that during the meeting, Tufono-Iosefa stated that R.G.'s relationship with T.R. Verbal Abuse By Staff and Other Wards Based on was "bad, and it was disgusting." (Tr. II at 75-76.) Wards' Actual or Perceived Sexual Orientation or Gender Identity is Pervasive at HYCF 18. The casual use of the word "butchie" during courtroom testimony by defendants' witness YCO 14. The record before the court is replete with Lawrence Alvaro reinforces plaintiffs' testimony that the documents and testimonial evidence demonstrating word is used commonly at HYCF. During direct verbal harassment and abuse. examination Alvaro testified, in a conversational manner 15. Staff at HYCF, including YCOs Josiah and and not quoting other wards or staff, that "there was some Hubbell, routinely referred to R.G. as "butchie" or used talk, you know, like they was saying earlier, about other slurs based on sexual orientation or failure to butchie things going on . . . ." (Tr. I at 218:12-17.) conform to gender stereotypes. (R.G. Decl. at P 10; Tr. I 19. On a regular basis, other wards called J.D. names at 11:15-12:21 (R.G.); Tr. II at 71:1-72:11 (Hadley); Joint such as "wahine," 6 "pussy," [*1143] "gay fucker," Exs. 26 (Daily Report written by YCO stating that R.G. "head," "dick sucker," "faggot," "mahu," 7 "gay "carries herself like she's the bull or something"); 29 motherfucker," and "fucking gay bitch." (J.D. Decl. PP 6, (Daily Report written by a YCO noting that R.G. "has an 18, 19, 24, 29; Joint Exs. 57, 61, 86.) identity problem. Too much thinking that she is a boy."); 30 (YCO stating that "staff is getting tired of the butchie 20. YCO Haina, when asked by another ward if J.D. action"); 32 (Daily [**32] Report written by a YCO, was gay, replied, [**34] in the presence of other wards, stating that R.G. is "playing the bull"); 38 (Comment "Yes, [he] is a legal known fag." (Declaration of Dr. Report written by a YCO describing R.G.'s conduct as Robert Bidwell ("Bidwell Decl.") P 31; Joint Ex. 86.) In Page 10 415 F. Supp. 2d 1129, *1143; 2006 U.S. Dist. LEXIS 24968, **34

his sworn declaration, defendant Haina did not deny Dictionary 377 (1987). making this statement. [**36] 7 "Mahu" means "homosexual of either sex" in 21. Wards at HYCF routinely called C.P. derogatory Hawaiian. Hawaiian Dictionary 220. names, such as "fucking faggot" and "fucking mahu," in the presence of staff. (C.P. Decl. P 19; Tr. I at The Pervasive Verbal Abuse at HYCF Harmed the 131:15-18.) Staff testified that such name-calling was a Plaintiffs daily occurrence. (Tr. I at 220:19-22 (Alvaro).) 26. Being repeatedly referred to as a "butchie" (a 22. Certain YCOs and YCSs routinely called C.P. word that R.G. had never heard prior to being confined at derogatory names based on her sexual orientation and/or HYCF) made R.G. feel "ugly." (Tr. I at 11:15-12:4 gender identity. Defendant YCS Mitch Simao repeatedly (R.G.).) Dr. Bidwell testified that such name-calling referred to C.P. as "cupcake" and "fruitcake" (C.P. Decl. directed at teenagers confined at HYCF is far more PP 17, 20; Tr. I at 131:3-8 (C.P.)), while YCO Tavako damaging than similar name-calling directed at adults. regularly referred to C.P. as "twinkle toes" and "fairy." (Tr. I at 69:21-70:17.) Moreover, in the youth (C.P. Decl. P 18; Tr. I. at 131:17-20 (C.P.).) correctional setting at HYCF, the guards form something of an extended family for the youth, and, unlike youth in 23. On one occasion, when female wards were non-custodial settings, wards at HYCF cannot retreat to braiding each other's hair, Defendant YCS Simao told the safety of their home and family at the end of the day. C.P. she could not have her hair up and that she was not (Bidwell Decl. P 17). Indeed, wards typically call YCOs allowed to play with her hair "like the girls." Various and YCSs "Aunty" or "Uncle." (Bidwell Decl. P 17.) YCOs threatened to cut off C.P.'s hair and to send her Thus, name-calling and other identity-based harassment "over to the boys" side. (C.P. Decl. PP 16, 19, 21; Tr. I at based [*1144] on actual or perceived sexual orientation 130: [**35] 1-18.) Hadley, HYCF's nurse practitioner, or gender identity by guards at HYCF often is acutely "heard from HYCF staff that C.P. was being taunted and damaging to wards who have been entrusted to the state's harassed by other staff and they were telling C.P. that care by the family court. (Tr. I at 68: [**37] 24-70:7; they were going to cut her hair and put her in with the Bidwell Decl. PP 16-17.) boys." (Hadley Decl. P 4.) 27. Dr. Bidwell testified that the harassment C.P. 24. The record before the court establishes that experienced was so severe that she threatened suicide verbal abuse and harassment of LGBT wards is because of what she was going through. (Tr. I 65:21-24.) commonplace at HYCF. (Tr. I at 64:9-15; 73:23-75:15 (Bidwell); Tr. I at 220:19-22 (Alvaro) (stating that, 28. Dr. Bidwell also testified that all three of the although he did not recall hearing wards call J.D. names plaintiffs exhibited behavior consistent with traumatic like "faggot," "it's a daily thing").) Such harassment harassment. (Tr. 167:9-68:23.) continues unabated. (Tr. I. at 71:20-73:5 (Bidwell); Bidwell Decl. P 16.) 29. Based on the record before the court, it is likely that plaintiffs will again be subjected to unrestrained 25. Dr. Robert Bidwell is the treating physician at verbal harassment and abuse by staff and other wards HYCF. He is also a professor at the University of Hawaii should they return to HYCF. Medical School, and is an expert in the field of adolescent medicine, with special expertise in adolescent Plaintiffs J.D. and C.P. Endured Physical and Sexual medicine in the juvenile correctional setting and in the Assaults By Other Wards and Threats of Sexual treatment of LGBT adolescents. Dr. Bidwell testified that Assaults Based on Their Actual or Perceived Sexual the use by HYCF staff of terms like "faggot," "mahu," Orientation or Gender Identity and "butchie" to refer to wards is a daily occurrence at HYCF and is symptomatic of a culture of abuse toward 30. The record before the court contains extensive LGBT wards at HYCF. (Tr. I at 73:23-75:5.) documentation of anti-LGBT sexual assaults, physical assaults and threats of sexual assault, including rape. 6 "Wahine" means "woman" in Hawaiian. Mary Kawena Pukui and Samual H. Elbert, Hawaiian 31. J.D. suffered anti-gay sexual harassment and Page 11 415 F. Supp. 2d 1129, *1144; 2006 U.S. Dist. LEXIS 24968, **37

abuse by other wards at HYCF, including physical (C.P. Decl. PP 32, 33, 34, 36, 40; Bidwell Decl. P 46; Tr. assaults and frequent threats of rape. (J.D. Decl. PP 5, 17, I at 131:15-23; compare Joint Ex. 45 (10/22/04 C.P. letter 18, 19, 22; Exs. A, B to J.D. Decl.) to YFA, reporting only minor problems) with Joint Ex. 48 (11/17/04 C.P. letter to YFA reporting "hard time" from 32. Many wards threatened to physically and/or boys' teasing, [**40] name calling, and "making sexually assault J.D. on a regular basis and several [**38] trouble," and stating "I feel hurt and it makes me go assaulted him repeatedly by subjecting him to various insane and angry").) forms of unwanted sexual touching. (Tr. I at 82:11-15.) For example, after making threats of rape and demanding 37. Some of the male wards touched C.P., pulled her that J.D. "give him head," J.D.'s roommate climbed on hair, threw things at her, told her to "give [them] head," J.D.'s back while J.D. slept. (J.D. Decl. P 3.) The incident or asked permission to rub her legs. (C.P. Decl. PP 33, made J.D. so frightened that he began to sleep sitting on 36.) Other male wards made comments like, "I want to the toilet to keep from being attacked from behind. (J.D. feel your ass," and "I want to fuck you," or asked her to Decl. P 3.) show her breasts. (C.P. Decl. P 34.) Other male wards exposed their buttocks to her, pulled out their erect 33. Other wards also jumped on J.D. and penises and showed them to her, or started masturbating pantomimed engaging in anal sex with him. (Ex. A to in front of her. (C.P. Decl. PP 34-35.) J.D. Decl.) They grabbed J.D.'s buttocks and rubbed suggestively against him, in one case while he was in the 38. Dr. Bidwell testified that C.P. told him shower. (J.D. Decl. PP 9, 19, 22; Exs. A, B to J.D. Decl.). repeatedly during her stays at HYCF of daily verbal Wards placed their pubic hairs on J.D.'s head or body. harassment, some physical harassment, and sexual Additionally, wards repeatedly told J.D. to "give them overtures. head" or "be their bitch," meaning have oral or anal sex with them. (J.D. Decl. PP 3, 13, 23; Ex. B to J.D. Decl.) 39. Defendants' own former juvenile corrections experts submitted declarations stating their expert opinion 34. One ward repeatedly hung his testicles out of his that they believed male to female transgender wards were shorts and asked J.D. to look at his "eight pack," put his "better off in O & A with the girls than anywhere else at testicles in J.D.'s hands, said to J.D. "suck on this HYCF and that the placement kept them physically and [referring to his penis], don't use your teeth," and psychologically safe." (Griffis Decl. at PP 8, 11; see also repeatedly sprinkled pubic hair on J.D.'s head and body. Miesner Decl. at PP 7, 10; Declaration of David Roush (J.D. Decl. PP [**39] 17, 18; Ex. B to J.D. Decl.; Joint ("Roush Decl.") at P 11.) Exs. 51, 61, 62, 81.) Another ward rubbed semen on J.D.'s face, exposed his penis and demanded that J.D. join 40. Based on the record [**41] before the court, it is him in the shower. (J.D. Decl. P 19.) likely that plaintiffs will again be subjected to unrestrained physical and sexual assaults and threats of 35. When J.D. was returned to HYCF in June of assault by other wards should they return to HYCF, and 2005, the harassment and threats of assault continued that such treatment will inflict significant harm on because wards who had known J.D. from his previous plaintiffs. commitment told new wards that J.D. was gay. (J.D. Decl. PP 47, 51.) The Supervisory Defendants Were Aware of the Pervasive Abuse and Harassment of LGBT Wards at 36. Over HYCF's medical staff's objections, YFA HYCF, Yet They Took No Meaningful Steps to Tufono-Iosefa transferred C.P. in September 2004 from Remedy the Conditions the girls' unit to the boys' unit when the girls were temporarily sent to a facility in Utah. (Tr. I at 180:8-16; 41. The record before the court contains substantial 181:5-9.) After C.P.'s transfer, C.P. was subjected to evidence that discrimination and verbal, sexual and escalating harassment and abuse from other wards, physical harassment and abuse based on actual or including physical and sexual assaults, masturbation perceived sexual orientation or gender identity are directed at her, and threatening commands such as "suck systemic problems at HYCF that have not been my dick," "put this in your mouth and suck on it," or adequately addressed by the supervisory defendants. "give me head," and threats of rape and [*1145] assault. Page 12 415 F. Supp. 2d 1129, *1145; 2006 U.S. Dist. LEXIS 24968, **41

42. Many incidents of verbal abuse and harassment "done the same"; that other wards had entered the occurred in the presence of HYCF staff or were reported showers while he was showering; that wards were sitting to staff, but the paucity of disciplinary records submitted next to him "rubbing up on [him]"; and that wards put by defendants indicates that, with respect to the vast pubic hairs on his head. (Joint Ex. 61.) Tufono-Iosefa's majority of instances, staff took no action. Even when response was to order that J.D. be placed in a single cell staff documented incidents, disciplinary measures were and to instruct YCOs "to pay extra attention on [J.D.] to either non-existent or were ineffective in stopping further prevent other wards from harassing him." (Joint [**44] harassment. (Joint Exs. 66-67 (discipline for "fighting" Ex. 61.) issued to ward who [**42] J.D. said called him (J.D.) "mahu" and who staff saw spit on and hit J.D.); 79 (J.D. 47. Despite the instruction to place J.D. in a single reported harassment and social worker talked to wards); cell and to watch out for him, and although a few YCOs 80 (YCO describes relentless harassment, stating she did try to stop the harassment, many YCOs continued to talked to wards and that "it stops for awhile, then it ignore harassment and refused to take action when J.D. continues"); 81 (YCO describes continuing harassment, reported it to them. (Tr. I at 81:25-84:25; 85:8-86:9; Joint and the need to review footage from the surveillance Ex. 61.) The YCOs also failed to keep J.D. in a single camera system as "the only realistic option to curb this cell, and on several occasions he was required to share a inappropriate activity").) room with other wards. (J.D. Decl. PP 11- 12.)

43. Although other wards routinely called C.P. 48. On August 8, 2004, J.D. wrote a letter to YFA derogatory names in the presence of HYCF staff, and Tufono-Iosefa describing the continuing harassment and although C.P. complained about such harassment even explaining that: when it occurred outside the presence of HYCF staff, the staff failed to discipline or stop the wards from calling Once again I am coming to you because her names. (C.P. Decl. P 19.) C.P.'s account is this issue is not diminishing. It is corroborated by contemporaneous medical notes by her progressing i.e. threats, exposure, sexual treating physician over a period of nearly a [*1146] year harassment, frottage, and fondling, that relate material details of the harassment suffered by intimidation. This crap happens on a daily C.P., including that certain YCOs routinely ignored such basis and I am not exaggerating. For me harassment. (See Joint Ex. 54 at (bates no. 1498, this is too much shit for me and way too 10/6/04); (bates no. 1499, 11/29/04) and (bates nos. much stress. . . . I haven't even been here a 1500-01, 1503, 8/15/05 to 8/17/05).) 8 month and I gotta deal with all this SHIT! I am not threatening you but very soon I 44. The testimony of defendants' witness YCO will either hurt myself or someone else Rosete indicates an awareness [**43] on the part of and I know none of us want this to happen. HYCF staff that C.P. would be harassed and abused if she were transferred to the boys' side. (Tr. II at 8:12-9:6.) (Joint Ex. 57.)

45. Copies of complaints regarding C.P.'s transfer to 49. Although Tufono-Iosefa received the letter on the boys' side and her isolation in a holding cell were August 8th, it was not until August 12th, [**45] four provided to Tufono-Iosefa and Agnew. (Bidwell Decl. PP days later, that J.D. was referred for a mental health 44, 49; Exs. C, E to Bidwell Decl.) There is no evidence assessment, leaving J.D. at risk of self-harm for four days that defendants took any responsive action. (Bidwell without intervention. (Joint Ex. 61.) Decl. PP 45, 50.) 50. Concerned about his emotional and physical 46. On August 2, 2004, J.D. submitted a written well-being and safety, J.D.'s public defender brought a grievance to Tufono-Iosefa describing in some detail the petition for writ of habeas corpus in the First Judicial anti-gay verbal and physical harassment, sexual abuse, District, State of Hawaii to have J.D. released [*1147] and threats of rape and other physical harm directed at from HYCF. (Brown Decl. P 6.) The matter came on for him. (Joint Ex. 61.) J.D.'s grievance specified that his hearing in August and September 2004, and resulted in a roommate had threatened to rape him and had jumped on written opinion issued by Judge Frances Wong on March him "motioning having anal sex"; that other wards had 17, 2005. (Brown Decl. PP 6-7; Bidwell Decl. P 32; Ex. 1 Page 13 415 F. Supp. 2d 1129, *1147; 2006 U.S. Dist. LEXIS 24968, **45

to Supp. Bidwell Decl.) That opinion found "that the has ever responded in writing to any of the HYCF was aware of the abuse suffered by [J.D.] and did communications by medical staff regarding the not, at that time, take adequate or reasonable steps to anti-LGBT treatment of plaintiffs in this case -- even address the problem." (Ex. 1 to Supp. Bidwell Decl. at after one of Dr. Bidwell's letters, copied to Koller and 10-11.) Judge Wong also informed the supervisory Agnew, referenced the family court's opinion concerning defendants of the urgent need for "policies and operation the systemic problem of anti-LGBT abuse and procedures that are appropriate to the treatment of harassment at HYCF. (Tr. I at 71:20-25 (Bidwell), [LGBT] youth, that set standards for the conduct of youth 202:12-19 (Tufono-Iosefa); Agnew Decl. P 11; Ex. F to correctional officers and other staff, and that provide Bidwell Decl.; Supp. Bidwell Decl. PP 3-5.) on-going staff training and oversight" in order to address the "systemic" problem of anti-LGBT harassment at 55. On August 16, 2004, when all three of the HYCF. [**46] (Ex. 1 to Supp. Bidwell Decl. at 11.) plaintiffs were confined at HYCF, DOJ launched a Notice of this decision was provided to the supervisory year-long [**48] investigation of conditions, policies, defendants. (Ex. F to Bidwell Decl.) and practices at HYCF. At the conclusion of DOJ's initial visit to HYCF on October 8, 2004, DOJ provided 51. Defendants have been on notice of plaintiff defendants with two extensive oral debriefings informing R.G.'s claims of anti-LGBT harassment, discrimination Agnew and Tufono-Iosefa of DOJ's preliminary findings. and abuse since at least February 2005 through the filing (Ex. B to Perrin Decl. (DOJ Report) at 1-2.) of grievances. The defendants also received notice through ICFs and correspondence from Dr. Bidwell to the 56. On August 4, 2005, DOJ issued a report finding supervisory defendants beginning in April of 2005. (R.G. major constitutional deficiencies at HYCF, including Decl. PP 15, 39-40; Bidwell Decl. PP 54-55; Ex. F to failure to protect wards from self-harm, staff violence, Bidwell Decl.) Dr. Bidwell received no response. [*1148] youth-on-youth violence, excessive use of (Bidwell Decl. P 57.) disciplinary isolation, lack of adequate supervision, and an inadequate grievance system. (Ex. B to Perrin Decl. 52. HYCF eventually initiated an investigation based (DOJ Report) at 5-6.) on R.G.'s complaints of harassment sometime before the Complaint in this case was filed. (Tufono-Iosefa Decl. P 8 The court finds that statements made by wards 38.) Nearly one year after R.G.'s initial complaint, that to Dr. Bidwell, Nurse Hadley and other medical investigation has yet to be completed. (Tufono-Iosefa staff in the context of medical visits and for Decl. P 38; Tr. I at 201:22-202:7.) purposes of defining or explaining the patient's own mental or physical state, including, for 53. The numerous attempts by both Dr. Bidwell and instance, anxiety, depression, or other Nurse Hadley to address the harassment and abuse psychological or emotional upset, are admissible perpetrated by HYCF staff and other wards against as statements for purposes of medical diagnosis. plaintiffs have been ignored by the supervisory Fed. R. Evid. 803(4). See also Swinton v. Potomac defendants. (Tr. I at 71:8-73:5 (Bidwell); 202:12-19 Corp., 270 F.3d 794, 807-08 (9th Cir. 2001) (Tufono-Iosefa); Bidwell Decl. PP 15, 22, 24, [**47] (plaintiff's description of harassment to his 40-50, 54, 57; Supp. Bidwell Decl. PP 5-8; Hadley Decl. therapist admissible under Rule 803(4) as P 5.) Dr. Bidwell testified -- and contemporaneous statement for purposes of medical diagnosis). documents reflect -- that the current administration was aware of the abuse and harassment of plaintiffs and other [**49] Defendants Responded to Anti-LGBT youth and that the abuse is systemic. (Tr. I at 71:8-19; Harassment by Isolating Plaintiffs 73:23-75:15; 64:9-15; Exs. C, D, E, F to Bidwell Decl.) In fact, Dr. Bidwell testified that he sent "many written 57. YFA Tufono-Iosefa, as a matter of practice, communications" concerning harassment and abuse of a employed isolation as a means of "protecting" certain variety of wards, not just the plaintiffs, "over a period of LGBT wards, including C.P. and J.D., from conditions at a long time." (Tr. I at 71.) HYCF. (Tufono-Iosefa Decl. PP 14, 25, 29, 32.)

54. Moreover, none of the supervisory defendants 58. In response to grievances filed by J.D. in August (Director Koller, Director Agnew or YFA Tufono-Iosefa) of 2004 regarding the continuous harassment he faced Page 14 415 F. Supp. 2d 1129, *1148; 2006 U.S. Dist. LEXIS 24968, **49

from other wards at HYCF, Tufono-Iosefa directed that instruments, radio, or television, nor was she allowed to J.D. be placed in isolation for his "safety." (J.D. Decl. PP interact with any other wards. (C.P. Decl. P 55.) C.P. 11-12, 32; Joint Ex. 61; Tufono-Iosefa Decl. P 29.) J.D. reported to medical staff that she was "going crazy" in the was originally placed in isolation for a medical holding cell. (Joint Ex. 54 (bates no. 1503).) evaluation. Although he was cleared by medical staff on August 16, (Joint Ex. 61), J.D. was kept in isolation "to 64. The expert evidence before the court regarding provide [him] with a reasonably safe environment" the use of isolation comes from juvenile corrections (Tufono-Iosefa Decl. at P 32) until some time between experts retained at one point by defendants. August 23, when medical records reflect he was still in a (Tufono-Iosefa Decl. PP 10-11.) Those experts uniformly holding cell, and August 31, by which point he had been conclude that long-term segregation or isolation of youth released back to his module. (Joint Ex. 85.) is inherently punitive, and that imposing such isolation as a form of protection is "not an acceptable correctional 59. While J.D. was in the isolation cell, he was [*1149] practice for juveniles." (Roush Decl. PP 12-13; prevented from making any phone calls or writing any see also Miesner Decl. P 11; Griffis Decl. P 12.) Indeed, letters. He was allowed one hour of solo recreational time [**52] one of those experts characterized such treatment and one shower per day, and was [**50] allowed only a as "inexcusable." (Miesner Decl. P 11.) Another stated Bible and another book given to him by the nursing staff. that HYCF may be the only juvenile facility in the (J.D. Decl. PP 34-36.) country that employs this practice. (Griffis Decl. P 12.)

60. The conditions in isolation were unbearable for 65. Roush, Miesner and Griffis also confirm Dr. J.D., causing him to cut up his Remeron (sleep Bidwell's testimony and the testimony of plaintiffs J.D. medication) into small pieces and take a little bit at a time and C.P. that social isolation is experienced as so he could sleep all day. (J.D. Decl. PP 33-36.) punishment (Roush Decl. P 12), and that prolonged isolation can cause serious psychological consequences. 61. J.D. was again placed in isolation after the (Miesner Decl. P 11; Roush Decl. P 12; Griffis Decl. P August 2004 habeas hearing, at which Judge Wong 12; Bidwell Decl. P 26). Due to its misuse by corrections requested that YFA Tufono-Iosefa be told of the family staff, psychiatrists have recommended that the use of court's concerns about the harassment. (Joint Ex. 76; (Tr. isolation in juvenile corrections be eliminated entirely. I 88:23-89:8 (J.D.).) J.D. was returned to the module (Roush Decl. P 12.) When isolation or segregation is approximately one week later. (Tr. I 88:23-89:8 (J.D.).) used, it is accepted among professionals that it should be used "sparingly" and only in response to serious 62. Similarly, in response to C.P.'s complaints of behavioral infractions and for short periods of time harassment, defendants first subjected her to social "while the ward poses an imminent danger to others." isolation by physically segregating her from the other (Miesner Decl. P 11; see also Roush Decl. P 13; Griffis wards in the module and later by sending her to a holding Decl. P 12.) cell. (C.P. Decl. PP 38-39, 53-57; Exs. A, B to C.P. Decl.; Joint Ex. 48.) When not locked down, C.P. was 66. Based on the record regarding defendants' instructed by YCOs not to have anything to do with any practice of using isolation as a form of protection, it is of the male wards -- she was not supposed to sit with or likely that defendants will isolate plaintiffs [**53] from near them, speak with them, look at them, or interact with other wards should they return to HYCF. them in any way. (C.P. Decl. P 38, Joint Ex. 48.) HYCF Lacks Policies and Procedures to Ensure Safe 63. When [**51] C.P. returned to HYCF in August Conditions of Confinement for HYCF Wards Who 2005, defendants held her in solitary confinement for six are or Who are Perceived to be LGBT days, again, allegedly for her "protection." (C.P. Decl. P 55; Tufono-Iosefa Decl. PP 25-27.) She was isolated in a 67. The DOJ Report found that the "most holding cell under video surveillance for twenty-three fundamental problem that plagues HYCF is the absence hours a day, with nothing in her cell other than her pillow of policies or procedures to govern the facility." (Ex. B to and a blanket. (C.P. Decl. P 55.) She was allowed one Perrin Decl. (DOJ Report) at 3.) hour a day to leave the cell for recreation and showering. (C.P. Decl. P 55.) She was not permitted letters, writing 68. The absence of adequate policies and procedures Page 15 415 F. Supp. 2d 1129, *1149; 2006 U.S. Dist. LEXIS 24968, **53

is compounded by defendants' failure to train the discriminated against because of race, sex, sexual individuals expected to enforce them. (Ex. B to Perrin orientation, language, and national origin[.]" (Ex. D to Decl. (DOJ Report) at 4 ("Security staff . . . have received Tufono-Iosefa Decl.) no training in over five years and have no rules to guide their decisions.").) DOJ found that "staff and 9 One of the six new policies is apparently being administrators were either unaware of the existence of rewritten due to problems with its any policies or procedures or were cognizant of their implementation. (Tr. I at 153:25-154:12.) existence yet ignorant of their content." (Ex. B to Perrin Decl. (DOJ Report) at 4 n.4.) HYCF Fails to Ensure Adequate Staffing, Training, Classification, and Supervision 69. In fact, as of April 2004, none of the HYCF staff had received any formal training since the 1980s. (Tr. I at 75. Defendants' former experts performed a staffing 190:20-191:4 (Tufono-Iosefa).) study and training needs assessment of HYCF in June 2004, after which they advised Agnew and Tufono-Iosefa 70. On September 21, 2005, based on a directive that HYCF "was in desperate need of more staff to issued by Agnew and while working on new policies, protect the safety of wards" and that they should "use defendants re-adopted the same 1984 policies [**54] that revised and expanded staff training to establish a juvenile DOJ condemned as "outdated and intended for an adult corrections culture. [**56] " (Roush Decl. PP 7-8; see institution." (Ex. B to Perrin Decl. (DOJ Report) at 4 n.4; also Miesner Decl. P 5 ("HYCF did not have sufficient Ex. D to Perrin Decl.) staff, . . . the staff was not properly trained and . . . most of the staff did not have the proper attitudes or demeanor 71. HYCF has adopted and implemented six new to work with troubled youth."); Griffis Decl. P 5.) policies and procedures to govern HYCF, which became effective on October 24, 2005. (Tufono-Iosefa Decl. P 76. Griffis's declaration states that, based on his 41; Ex. D to Tufono-Iosefa Decl.) 9 These six policies observations, HYCF "did not have a classification system took approximately one year to draft and adopt. (Tr. I at for aggressive vs. vulnerable wards, and there were no 202:20-203:15 (Tufono-Iosefa).) policies, training or supervision, rendering the environment very unsafe for the wards." (Griffis Decl. P 72. This lengthy period is due in part to the fact that, 5.) Roush concluded his declaration by explaining that "it although not required to do so under the governing is the responsibility of the administration to create an collective bargaining agreements with HYCF staff, OYS environment that is physically and psychologically safe and HYCF choose to follow past practices and engage in for the wards without violating the wards' rights." (Roush a lengthy and "grueling" process negotiating with the Decl. P 13; see also Miesner Decl. P 5; Griffis Decl. at P unions with respect to every new policy that is proposed 5.) at [*1150] HYCF. (Tr. I at 202:20-204:10 (Tufono-Iosefa).) 77. In August 2005, DOJ suggested remedial measures necessary to bring staffing and supervision at 73. Defendants concede that HYCF requires HYCF into conformity with constitutional requirements, additional policies -- including policies pertaining to including: (1) training existing staff so that they perform youth safety -- and that it will take one and a half to two their duties adequately; (2) ensuring that there are years to complete the drafting and negotiation process for sufficient staff to safely supervise youth; (3) providing the remaining policies. (Tr. I at 173:6-174:16.) staff with adequate training and equipment [**57] to supervise youth at risk of suicide; (4) providing staff with 74. HYCF does not have specific policies in place to training on HYCF's suicide prevention policy; (5) protect LGBT youth -- or any other vulnerable [**55] developing and implementing adequate policies and youth -- from harm. (Bidwell Decl. PP 13, 14.) Agnew procedures to ensure that youth are adequately protected expressly admitted in a September 2005 television news from physical violence; and (6) developing and interview that no policies were in place for gay and implementing adequate policies and procedures regarding lesbian youth. (Ex. H to Perrin Decl.) After the instant the proper use of force by YCOs and other staff. (Ex. B to lawsuit was initiated, HYCF adopted an October 14, 2005 Perrin Decl. (DOJ Report) at 26-28.) policy that states, "youth have the right not to be Page 16 415 F. Supp. 2d 1129, *1150; 2006 U.S. Dist. LEXIS 24968, **57

78. As of August 12, 2005, HYCF had not provided HYCF renders HYCF unable to address plaintiffs' training on certain core issues such as supervision of complaints concerning the conditions of their youth, proper use of force, investigation techniques, and confinement should they be returned to HYCF. the identification and protection of vulnerable youth; HYCF did, however, have a plan in place for future staff Some HYCF Staff Members Promoted Certain training. (Ex. C to Perrin Decl.) HYCF social worker Religious Ideas to Wards Hardy testified that she and other staff received some training on use of force and HYCF's grievance procedure 83. Prior to June 2004, there was a practice at HYCF following the implementation of HYCF's youth rights of allowing no personal items or reading materials in policies in October 2005. (Tr. I at 153:23-154:5.) She wards' cells other than a Bible. (R.G. Decl. PP 9, 10; C.P. also testified that staff received some questionable Decl. P 23; Ex. F to Perrin Decl.) information regarding the new policy with respect to 84. This practice was formally prohibited by a June LGBT youth, including that placing a male-to-female 21, 2004 order from Tufono-Iosefa. (Ex. F to Perrin [*1151] transgender youth on the boys' side, where staff Decl.) knew the ward would encounter [**58] abuse, would not constitute discrimination or abuse. (Tr. I at 85. HYCF staff engaged in discussions of a religious 155:25-157:10.) nature with wards. (Tr. II at 18:21-19:12; 23:24-24:1 (Rosete).) HYCF Lacks a Functioning Grievance System 86. R.G. testified that several HYCF staff members, 79. The DOJ Report concluded that "HYCF's including YCO Josiah and teacher Barbara Tanji, singled grievance system is dysfunctional." (Ex. B to Perrin Decl. her out for proselytizing. [**60] (R.G. Decl. PP 9-10, (DOJ Report) at 20.) The most significant legal 14.) deficiencies were "difficulty in filing claims and the common presence of intimidation and retaliation against 87. The record also establishes religious discussions those youth who are able and dare to do so." (Ex. B to between R.G. and Rosete while R.G. was confined at Perrin Decl. (DOJ Report) at 20.) The DOJ found that the HYCF. These discussions included accounts that the subjects of the complaints, usually the supervising YCO, Bible says that being gay is "not of God," that the Bible often retaliated against the complainants. (Ex. B to Perrin states that "man should not lay with man," and that Decl. (DOJ Report) at 20.) anyone who did so would be punished and go to hell. (R.G. Decl. PP 4-5, 9; Tr. II at 10:6-17; 21:9-22:19 80. Plaintiffs' experiences demonstrate the futility of (Rosete).) HYCF's grievance system. Some grievances take months to receive a response. (Joint Ex. 9; Exs. A, B to C.P. 88. It is also clear that R.G. initiated many of these Decl.) HYCF social worker Hardy testified that, although conversations and that Rosete initiated at least some of she encourages wards to fill out grievance forms, the them. (Tr. I at 17:19-25 (R.G.); Tr. II at 19:5-12 wards have told her that they "never receive a reply." (Tr. (Rosete).) I at 162:2.) When a grievance receives a response, it may not be treated confidentially, putting wards at risk for Plaintiffs Were Prevented From Speaking with retaliation. (See, e.g., Joint Ex. 86 (medical notes Counsel on Two Occasions indicating J.D. complained that YCOs [**59] had shown other wards his grievance form).) 89. Sometime in 2003, HYCF began requiring written consent of parents and guardians to allow the 81. Although HYCF recently adopted a new wards to speak with the ACLU concerning the grievance system (Tufono-Iosefa Decl. P 41; Ex. D to conditions, policies, and practices at HYCF. (Ex. C to Tufono-Iosefa Decl.), the new system remains Tufono-Iosefa Decl.) ineffective. Hardy testified that the new procedure works no better than the old procedure and is regarded by the 90. In August 2005, R.G was denied permission to wards as a "waste of time." (Tr. I at 161:14-162:6.) call her attorney at the ACLU. (R.G. Decl. P 43.)

82. The absence of a meaningful grievance system at [*1152] 91. When C.P. was returned to HYCF in Page 17 415 F. Supp. 2d 1129, *1152; 2006 U.S. Dist. LEXIS 24968, **60

August, 2005, Tufono-Iosefa refused the ACLU's request the Due Process rights of pretrial detainees (who, like the to see C.P., and stated that all requests were to be referred wards at HYCF, have not been convicted of crimes) to the Attorney General's office. (Perrin [**61] Decl. P challenging their conditions of confinement and [**63] 13; C.P. Decl. P 63.) held that conditions violate detainees' Due Process rights if they "amount to punishment." Subjecting detainees to 2. Conclusions of Law unsafe conditions or isolation amounts to punishment when done either with the express intent to punish or a. The plaintiffs are likely to succeed on their Due without a legitimate purpose. Id. at 538-39. Even when a Process claim legitimate nonpunitive purpose is asserted, if the i. The Fourteenth Amendment governs the conditions imposed are "excessive" in relation to that constitutionality of conditions at HYCF nonpunitive purpose, including when substantial evidence demonstrates that officials' response to operational As an initial matter, the court must determine the considerations is "exaggerated," a Due Process violation constitutional standard that applies to the plaintiffs' is established. Id. at 538, 540 n.23. claims regarding the conditions at HYCF. Whether the Eighth Amendment guarantee against cruel and unusual The court is mindful that it must review the record punishment or the "more protective" Fourteenth for constitutional violations, and that the court may not Amendment Due Process standard applies depends on the impose its own notion of the appropriate manner to status of the wards confined at HYCF. Gary H. v. operate HYCF. Thus, the court must determine whether a Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987). The condition or restriction that appears to be punishment is Eighth Amendment applies to those who have been in fact "but an incident of a legitimate nonpunitive convicted of crimes, while the Due Process standard governmental objective." Id. at 539 n.20. applies to detainees who have not been convicted of In Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. crimes. Id. (citing Jones v. Johnson, 781 F.2d 769, 771 2452, 73 L. Ed. 2d 28 (1982), the Supreme Court held (9th Cir. 1986) and Whitley v. Albers, 475 U.S. 312, 106 that a mentally disabled individual who was involuntarily S. Ct. 1078, 89 L. Ed. 2d 251 (1986)). In the instant case, committed to a state institution had a protected [**64] wards of HYCF are adjudicated delinquent and have not liberty interest in reasonably safe [*1153] conditions of been convicted of a crime. Hawaii Revised Statute (HRS) confinement and freedom from unreasonable bodily § 571-1 (stating that a primary purpose of the Hawaii restraint. 457 U.S. at 315-16. The plaintiff in Youngberg Family Courts is rehabilitation of [**62] juveniles and was injured repeatedly by himself and by others; he that "no adjudication by [Hawaii Family Courts] of the alleged that defendants violated his rights to Due Process status of any child shall be deemed a conviction"); State and freedom from cruel and unusual punishment when v. Riveira, 92 Haw. 521, 993 P.2d 555 (2000) (holding they "failed to institute appropriate preventive that a juvenile adjudication could not constitute a procedures" to keep him safe and instead restrained him conviction for purposes of Hawaii's repeat offender for portions of each day, allegedly for his own safety and provision). Therefore, the Due Process Clause provides for the safety of others. Id. at 310-11. The Court the standard for analyzing the conditions of confinement reiterated that determining whether conditions violate 10 at HYCF. Due Process requires courts "to balance 'the liberty of the 10 Gary H upheld the application of the Due individual' and 'the demands of an organized society.'" Id. Process standard to analyze conditions at an at 320 (quoting Poe v. Ullman, 367 U.S. 497, 542, 81 S. Oregon juvenile detention facility where the Ct. 1752, 6 L. Ed. 2d 989 (1961) (Harlan, J., dissenting)). district court concluded that the juvenile justice The Court elaborated on the analysis in Bell, explaining system was noncriminal and nonpenal in nature. that whether state actors have "adequately . . . protected Id. at 1432. This court likewise finds that the rights of the involuntarily committed" depends on Hawaii's juvenile justice system is noncriminal whether the decision reflects the judgment of qualified and nonpenal. professionals or is "such a substantial departure from accepted professional judgment, practice, or standards In Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, [**65] as to demonstrate that the person responsible 60 L. Ed. 2d 447 (1979), the Supreme Court considered actually did not base the decision on such a judgment." Page 18 415 F. Supp. 2d 1129, *1153; 2006 U.S. Dist. LEXIS 24968, **65

Id. at 321-23. [*1154] detainee's claim is based on a jail official's episodic acts or omissions, the Bell test is inapplicable, Thus, "the Constitution only requires that the courts and hence the proper inquiry is whether the official had a make certain that professional judgment in fact was culpable state of mind in acting or failing to act." Id. at exercised. It is not appropriate for the courts to specify 643. Hare concluded that the deliberate indifference which of several professionally acceptable choices should standard applied to a jail official's episodic acts or have been made." Id. at 321 (citation and quotation omissions. Id. Hare further clarified that the Bell analysis signals omitted). However, the Supreme Court was may apply to actions or omissions that are sufficiently careful to explain that such deference to state institutions "extended or pervasive" such that an intended condition is based on the recognition that they are run by or practice can be inferred. Id. at 645. appropriately qualified professionals. Id. at 323 n.30. In other words, the determination that professional judgment In Oregon Advocacy Center v. Mink, 322 F.3d 1101 has been exercised must be based on a finding that the (9th Cir. 2003), the plaintiffs alleged unconstitutional challenged decision was made by "a person competent, conditions of confinement when a state hospital (charged whether by education, training or experience, to make the with evaluating and treating mentally incapacitated particular decision at issue" or a person "subject to the criminal defendants) refused to accept the patients on a supervision of qualified persons." Id. timely basis. In reviewing the district court's injunction requiring the hospital to accept [**68] the patients within In the context of a failure to protect case, the seven days of a court's finding of incapacity, the Ninth Supreme Court has clarified that officials cannot be held Circuit rejected the hospital's "claim that the deliberate liable for conditions of detention that are the result of indifference standard governs the Due Process rights of mere negligence. Davidson v. Cannon, 474 U.S. 344, incapacitated . . . defendants." Id. at 1120. See also Jones 348, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986) ("The v. Blanas, 393 F.3d 918 (9th Cir. 2004) (concluding that protections [**66] of the Due Process Clause, whether the deliberate indifference standard was inapplicable to a procedural or substantive, are just not triggered by lack of Due Process challenge to conditions of confinement). due care by prison officials."). Courts have typically Instead, the court applied a Due Process test consistent applied the deliberate indifference standard to failure to with Bell and Youngberg. Thus, in conditions of protect claims where the direct source of the alleged harm confinement cases, the Ninth Circuit appears to be in is neither the conduct of the state defendant nor the agreement with Hare. operation of an official policy or practice. See, e.g., Redman v. County of San Diego, 942 F.2d 1435 (9th Cir. Reviewing the various claims made by plaintiffs, the 1991) (en banc). court finds that the claim centering on isolation of wards is subject to the Bell test. The defendants do not deny the The plaintiffs argue that the deliberate indifference practice of placing plaintiffs in isolation; they simply standard does not apply to any of their Due Process claim that the practice is legitimate and thus claims and that the "amounts to punishment" standard constitutional. This condition of confinement claim thus applies instead. While this Bell standard certainly applies fits well within the Bell framework. to acknowledged policies at HYCF, it makes little sense when applied to the plaintiffs' claims that the facility Plaintiffs also allege that they suffered anti-LBGT failed to protect them from staff and ward harassment and harassment and abuse; defendants deny the allegation, but abuse. Although courts have not been entirely clear or argue that if the plaintiffs were harassed and abused, consistent in the application of the Due Process Clause HYCF staff [**69] were not the perpetrators and were standards, two cases provide some helpful guidance. not aware of the abuse. The question thus presented is whether the harm alleged is the result of a pervasive, Hare v. City of Corinth, Mississippi, 74 F.3d 633 known practice -- such that the requisite level of (5th Cir. 1996) (en banc) reviewed the constitutional culpability can be inferred and the Bell test applied rights of a pretrial detainee. After a lengthy review [**67] without further inquiry into intent -- or whether the harm of Fifth Circuit cases, Hare concluded that the "Bell test alleged is more episodic in nature, requiring the plaintiffs retains vitality only when a pretrial detainee attacks to prove deliberate indifference. Though the plaintiffs general conditions, practices, rules, or restrictions of allege pervasive harassment at HYCF, the court is pretrial confinement. When, by contrast, a pretrial Page 19 415 F. Supp. 2d 1129, *1154; 2006 U.S. Dist. LEXIS 24968, **69

reluctant to analyze the plaintiffs' claims on the outside the range of accepted professional practices. assumption that HYCF operates under a defacto policy of (Roush Decl. PP 12-13 (noting that social isolation is tolerating harassment and abuse of wards from both staff recognized as "inherently punishing" and that "punishing and other wards. The court concludes that the plaintiffs' a ward in order to protect that ward from the harmful claim regarding harassment and abuse from guards and actions of others is not an acceptable correctional practice other wards is best reviewed under the deliberate for juveniles"); Miesner Decl. P 11 ("Prolonged isolation indifference standard applied to failure to protect claims. or seclusion is punitive in nature and can cause serious The court now turns to the plaintiffs' Due Process claims. psychological consequences."); Griffis Decl. P 12 ("Such segregation practice is not generally accepted and falls ii. Defendants' use of isolation is inconsistent with outside of professional standards").) Indeed, one expert professional standards and constitutes punishment opined that HYCF may be the only juvenile facility in the country that employs this practice. (Griffis Decl. P 12.) Though the use of isolation for "protection" violates HYCF's own written policies (Tufono-Iosefa Decl. P 42, Courts that have considered this issue have likewise Ex. E (wards have the right to "not be isolated or concluded that the use of isolation for juveniles, except in segregated [**70] unless [their] behavior is in violation extreme circumstances, is a violation of Due Process. of HYCF rules and regulations.")), defendants admit that See, e.g., H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1088 they use isolation as a means of "protecting" wards who (11th Cir. 1986) ("Juveniles are even more susceptible to are or are perceived to be LGBT, including C.P. and J.D., mental anguish than adult convicts."); Santana v. from abusive conditions at HYCF. (Defendants' Collazo, 714 F.2d 1172 (1st Cir. 1983) [**72] (experts' Memorandum in Opposition at 27-28; Tufono-Iosefa testimony on lack of therapeutic and disciplinary benefits Decl. PP 25-32.) The defendants contend that their from isolation sufficient to warrant remand for further decision to protect LGBT wards from harassment by factual findings); Milonas v. Williams, 691 F.2d 931, isolating them from other wards was reasonable and 942-43 (10th Cir. 1982) (affirming injunction against non-punitive. After examining expert opinions and case placing children in isolation for any reason other than to law regarding [*1155] the use of isolation on children, contain violent behavior); D.B. v. Tewksbury, 545 F. the court concludes that the defendants' use of isolation Supp. 896, 905 (D. Or. 1982) (ruling that "placement of was not within the range of acceptable professional younger children in isolation cells as a means of practices and constitutes punishment in violation of the protecting them from older children" violates plaintiffs' plaintiffs' Due Process rights. 11 Due Process rights under the fourteenth amendment); Feliciano v. Barcelo, 497 F. Supp. 14, 35 (D.P.R. 1979) 11 Even if the court assumes, despite the ("Solitary confinement of young adults is supervisory defendants' apparent endorsement of unconstitutional."); Lollis v. N.Y. State Dep't of Soc. the use of isolation, that HYCF does not support Servs., 322 F. Supp. 473, 480 (S.D.N.Y. 1970) the practice of protecting youth from harassment (concluding that plaintiff's solitary confinement was by isolating them, supervisory liability would still unconstitutional after considering extensive expert attach given the pervasive harassment of LGBT testimony stating that the extended use of isolation on wards and lack of policies for protecting wards children is "cruel and inhuman," and "counterproductive from harassment without resort to isolation. See to the development of the child"). Redman, 942 F.2d at 1446 ("Supervisory liability exists even without overt personal participation in The likely perception by teenagers that isolation is the offensive act if supervisory officials imposed as punishment for being LGBT only compounds implement a policy so deficient that the policy the harm. (Bidwell [**73] Decl. P 26; Ex. B to itself is a repudiation of constitutional rights and Declaration of Caitlin Ryan ("Ryan Decl.").) The is the moving force of the constitutional defendants do not dispute the expert findings regarding violation.") (citations and internal quotation isolation; rather they merely assert that their purpose in signals omitted). isolating plaintiffs was protective rather than punitive.

[**71] The expert evidence before the court Even if the defendants, including the supervisory uniformly indicates that long-term segregation or defendants, did not intend to punish the plaintiffs, the isolation of youth is inherently punitive and is well Page 20 415 F. Supp. 2d 1129, *1155; 2006 U.S. Dist. LEXIS 24968, **73

court finds that the effects of isolation are not "but an both physically and psychologically unsafe for the incident of a legitimate non-punitive governmental plaintiffs, such that the conditions amount to punishment. objective." Bell, 441 U.S. at 539 n.20. Defendants' The plaintiffs do not complain of a few isolated incidents practices are, at best, an excessive, and therefore [*1156] of name-calling or verbal harassment. See DeWalt v. unconstitutional, response to legitimate safety needs of Carter, 224 F.3d 607, 612 & n.3 (7th Cir. 2000) [**75] the institution. Id. at 538. Consistently placing juvenile (holding that "standing alone, simple verbal harassment wards in isolation, not to impose discipline for violating does not . . . deprive a prisoner of a protected liberty rules, but simply to separate LGBT wards from their interest," but noting that "racially derogatory language . . abusers, cannot be viewed in any reasonable light as . can be quite important evidence of a constitutional advancing a legitimate nonpunitive governmental violation"); Oltarzewski v. Ruggiero, 830 F.2d 136, 138 objective. HYCF has attempted to remedy one harm with (9th Cir. 1987) (holding same). Rather, the plaintiffs an indefensible and unconstitutional solution. 12 complain of a relentless campaign of harassment based on their sexual orientation that included threats of 12 The court notes that it is not concluding that violence, physical and sexual assault, imposed social HYCF can never isolate a ward for his or her own isolation, and near constant use of homophobic slurs. protection. It is possible to imagine circumstances This level of harassment and abuse in a juvenile facility, in which a threatened ward might need to be where the wards have not been convicted of crimes and temporarily segregated while the staff attempts to are committed to the care of the state, falls below the control the situation. The court is not an expert in minimum level of care required by the Due Process juvenile corrections and does not attempt to Clause. See Youngberg, 457 U.S. at 315-16 (recognizing instruct HYCF on the appropriate response to an a liberty interest in reasonably safe conditions of emergency situation. It is clear from the record, confinement). however, that HYCF has imposed extended periods of isolation and segregation on LGBT The plaintiffs presented substantial evidence that the wards who experience harassment and abuse supervisory defendants were aware the of the climate of rather than addressing the climate of harassment abuse at HYCF. Findings of Fact PP 41-56. Given their and abuse that exists at HYCF. In other words, knowledge of the severity and the ongoing nature of the isolation and segregation of LGBT wards appears harassment and abuse plaintiffs faced from staff and to be the customary response, not the exception, [**76] other wards, the supervisory defendants' failure to to harassment of these wards. This is not a take any minimally adequate remedial measures constitutionally acceptable response. constitutes deliberate indifference.

[**74] iii. Defendants acted with deliberate [*1157] The court's conclusion that the defendants indifference in allowing pervasive verbal, physical, and acted with deliberate indifference is based on the totality sexual abuse to persist at HYCF of the circumstances at HYCF. Specifically, it is based on the court's findings that the defendants were aware that Wards at HYCF have a liberty interest in personal conditions at HYCF were unsafe for the plaintiffs and security and well-being that is protected by the that, with this knowledge, defendants failed to maintain: substantive guarantees of the Due Process Clause of the (1) policies and training necessary to protect LGBT Fourteenth Amendment. A.M. ex rel. J.M.K. v. Luzerne youth; (2) adequate staffing and supervision; (3) a County Juvenile Det. Ctr., 372 F.3d 572, 579 (3d Cir. functioning grievance system; and (4) a classification 2004) (citing Youngberg, 457 U.S. at 315-19); Redman, system to protect vulnerable youth. By highlighting these 942 F.2d at 1439. This interest encompasses a right to shortcomings, the court does not mean to suggest that the protection from psychological as well as physical abuse. constitution requires particular policies or safeguards See K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990) such as a grievance or classification system. Rather, it is ("Youngberg v. Romeo made clear . . . that the the supervisory defendants' failure to adopt any Constitution requires the responsible state officials to professionally acceptable methods of maintaining order take steps to prevent children in state institutions from and safety at HYCF that constitutes deliberate deteriorating physically or psychologically."). indifference. The record indicates that the conditions at HYCF are Page 21 415 F. Supp. 2d 1129, *1157; 2006 U.S. Dist. LEXIS 24968, **76

First, in light of ongoing abuse and harassment Perrin Decl. (DOJ Report) at 16.) Given the obvious directed at LGBT youth at HYCF, the supervisory relationship between staffing levels and safety in a defendants' failure to adopt policies and procedures and custodial setting, defendants' chronically inadequate to provide training [**77] regarding how to ensure the staffing supports a finding of deliberate indifference. safety of LGBT wards supports a finding of deliberate Luzerne, 372 F.3d at 581. indifference to plaintiffs' safety. Most notable is the complete lack of training for staff about their obligations [*1158] Third, HYCF's inadequate grievance to refrain from harassment and discrimination, to systems supports a finding of deliberate indifference. The intervene in ward-on-ward harassment, and to investigate DOJ Report found that "the most significant legal claims of harassment. deficiencies with the grievance system at HYCF are the difficulty in filing claims and the common presence of The Third Circuit recently considered a similar intimidation and retaliation against those youth who are situation in Luzerne, 372 F.3d 572. The plaintiff, a able and dare to do so." (Ex. B to Perrin Decl. (DOJ juvenile who was assaulted repeatedly by fellow wards in Report) at 20-21 (former administrator conceded "that he a detention facility, charged that the center's lack of simply could not complete investigations" due to policies to ensure youth safety and failure to train its staff resistance and sick outs by YCOs).) Nothing in the on methods of identifying and protecting vulnerable evidence before the court suggests that these deficiencies youth violated his Due Process rights. Id. at 575-76, 580. have been corrected by HYCF. The court reversed summary judgment for the defendants, holding that a reasonable jury could find the plaintiff's HYCF's former grievance policy, which was in place injuries were a foreseeable consequence of the center's until after plaintiffs' Motion for Preliminary Injunction lack of policies and procedures and failure to train, which was filed, was ineffective in addressing plaintiffs' were alleged to deviate substantially from accepted complaints. Investigations concerning alleged professional judgment. Id. at 580-87. Similarly, here, mistreatment could take months to complete, grievances HYCF's lack of minimally adequate policies, procedures, were not [**80] always treated confidentially, and wards and training to ensure ward safety resulted [**78] in regarded the process as a waste of time. Findings of Fact harassment and abuse by staff and other wards so severe PP 79-82. Although defendants have adopted a new that it caused each of the plaintiffs to contemplate grievance procedure after the plaintiffs filed their motion, self-harm or suicide and one of the plaintiffs to engage in testimony by Nurse Hadley demonstrates that this new self-mutilation and attempt suicide. system is not working.

Second, the supervisory defendants' failure to ensure In Luzerne, the court concluded that evidence of an adequate staffing and supervision at HYCF supports a inadequate policy for reviewing and acting on incident finding of deliberate indifference. As the DOJ Report reports could support a finding that "the Center concluded, "the lack of supervision of youth is [a] disregarded an obvious consequence of its action, contributing factor" to unconstitutionally hazardous namely, that residents of the Center could be at risk if conditions at HYCF. See also Luzerne, 372 F.3d at 581 information gleaned from the incident reports was not (holding that a municipality may be liable for inadequate reviewed and acted upon." 372 F.3d at 583. Likewise, staffing and supervision where "the causal link between here, defendants' failure to establish an adequate policy the alleged policy or custom and the constitutional injury for reviewing and acting upon grievances and incident is not too tenuous" (citation and internal quotation signals reports contributes directly to the unsafe environment at omitted)). Testimony from plaintiffs J.D. and C.P. that HYCF. they frequently experienced ward-on-ward harassment when YCOs were not paying attention or were absent is Finally, the defendants' admitted lack of a consistent with the DOJ finding that defendants have classification system for protecting vulnerable wards "employed an insufficient number of staff at HYCF to supports a finding of deliberate indifference. Juvenile monitor youth, and the staff that are employed there have corrections experts Roush, Miesner and Griffis provided no training in adequate monitoring procedures. As a unrebutted testimony establishing that the absence of a result, youth are frequently able to exploit [**79] the classification system to protect vulnerable wards from gaps in supervision and harm other juveniles." (Ex. B to aggressive wards, combined with [**81] the absence of policies, training and supervision, makes the environment Page 22 415 F. Supp. 2d 1129, *1158; 2006 U.S. Dist. LEXIS 24968, **81

at HYCF unsafe. internal quotation signals omitted.) Another is the endorsement test from County of Allegheny v. ACLU, 492 Similarly, DOJ found that HYCF's frequent failure to U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989). protect youth from assaults by other wards can be Under the endorsement test, a state institution such as attributed in part "to the absence of a classification HYCF violates the Establishment Clause if it "take[s] a criteria for housing youth. . . . Staff place aggressive position on questions of religious belief" or "convey[s] a youth with vulnerable youth regardless of the risk of message that a religion or particular religious belief is harm." (Ex. B to Perrin Decl. (DOJ Report) at 16.) A favored or preferred." Id. at 593-94 (citation, internal sound classification system is necessary to provide quotation signals, and emphasis omitted). The third is the incarcerated juveniles with reasonably safe conditions, coercion test from Lee v. Weisman, 505 U.S. 577, 587, including the right "to reasonable protection from the 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992), which aggression of others, whether 'others' be juveniles or provides that "government may not coerce anyone to staff." Alexander S. v. Boyd, 876 F. Supp. 773, 798 support or participate in religion or its exercise." Relief is (D.S.C. 1995); see also Redman, 942 F.2d at 1440 n.7; proper upon a finding that defendants' actions violate any (Ex. K to Perrin Decl. (AG Report); (Ex. J to Perrin Decl. of the three tests. Newdow v. United States Cong., 328 at 6 (report of court-appointed expert regarding F.3d 466, 487 (9th Cir. 2003), rev'd on other grounds, Elk conditions at California Youth Authority noting the Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S. "growing professional consensus that effective Ct. 2301, 159 L. Ed. 2d 98 (2004). Establishment Clause classification systems are central to the safe and efficient jurisprudence is especially protective of youth, operation of correctional systems").) Defendants' failure recognizing that they are particularly susceptible to to classify wards and practice of placing aggressive youth religious coercion. See Lee v. Weisman, 505 U.S. 577, with vulnerable youth, including placing J.D. [**82] and 592-93, 112 S. Ct. 2649, 120 L. Ed. 2d 467 (1992). C.P. with aggressive boys, has resulted in and continues [**84] to threaten repeated physical and sexual assaults and pervasive verbal harassment. Based on the undisputed Plaintiffs essentially make two claims based on the expert testimony and legal precedent before the court, the endorsement test. First, plaintiffs claim that the decision not to employ a classification system supports a defendants endorsed religion by enforcing a policy of finding of deliberate indifference. allowing the wards to keep only Bibles and no other personal belongings or books in their cells. Second, the [*1159] b. The court does not reach the plaintiffs allege that certain HYCF staff members plaintiffs' Equal Protection claim promoted religion, often discussing religious teachings and quoting from the Bible, and that HYCF ratified the The plaintiffs seek the same injunctive relief conduct of these staff members. pursuant to the Equal Protection Clause that they seek in their Due Process claims. Because the court concludes The plaintiffs' first claim fails because the plaintiffs that HYCF violated the plaintiffs' rights under the Due cannot show that HYCF adheres to a Bibles-only Process Clause and orders injunctive relief to remedy the practice. Though there is some evidence that HYCF once violation, the court need not reach the plaintiffs' Equal restricted wards' personal belongings to Bibles, Protection claim. Tufono-Iosefa issued an ICF on June 21, 2004 officially terminating this practice. Plaintiffs contend that this c. The plaintiffs are not likely to succeed on their practice has continued; however, they have produced Establishment Clause claim scant evidence to support this contention. Even if some Modern Establishment Clause jurisprudence centers wards were denied personal belongings other than Bibles on three tests. One is the three-prong test from Lemon v. on isolated occasions, such instances were contrary to Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. HYCF policy and were not part of a pervasive practice. Ed. 2d 745 (1971), under which a "statute must have a Plaintiffs' allegations regarding staff promotion of secular legislative purpose[,] . . . its principal or primary religion present a closer case. It is clear from the record effect must be one that neither advances nor inhibits that several staff members engaged [**85] in discussions religion, [and it] . . . must not foster an excessive [**83] about the Bible with some wards. [*1160] To support a government entanglement with religion." (Citations and Page 23 415 F. Supp. 2d 1129, *1160; 2006 U.S. Dist. LEXIS 24968, **85

claim under the Establishment Clause, however, the testified nor provided a declaration. plaintiffs must show more than that individual staff members endorsed religion; they must demonstrate that Though there is evidence that at least some staff the staff members' promotion of religion to the plaintiffs members at HYCF endorsed religion to the plaintiffs, constitutes government endorsement of religion. Though there is insufficient evidence at this stage for the court to the plaintiffs must establish government action to succeed make a preliminary finding of state endorsement of on their claim, "for the purpose of an Establishment religion. The plaintiffs have offered no evidence that the Clause violation, a state policy need not be formal, staff members in question were acting pursuant to an written, or approved by an official body to qualify as explicit policy, that they had the power to make policy at state sponsorship of religion." Canell v. Lightner, 143 HYCF, or that HYCF in any way ratified their statements F.3d 1210, 1214 (9th Cir. 1998). Thus, the court must to the plaintiffs. Moreover, plaintiffs have not produced determine whether the conduct of certain staff members evidence of a sufficiently pervasive practice such that the is "sufficiently imbued with the state's authority to court can infer that HYCF condoned the practice of staff constitute state endorsement of religion." Id. promoting religion to wards. HYCF's failure to take prompt action on Dr. Bidwell's letter suggesting religious In Canell v. Lightner, the Ninth Circuit analyzed endorsement by staff members, while troubling, does not whether a corrections officer's promotion of religion to an by itself establish that HYCF ratified the conduct the inmate violated the Establishment Clause. The [**88] of the staff in question. challenged conduct in Canell consisted of isolated incidents of singing Christian songs, belittling other To be clear, the court is concerned by the evidence religions, and mock-preaching by one guard on a total of that members of the HYCF [*1161] staff have promoted eighteen days. Id. The court [**86] found no certain religious teachings to the plaintiffs. Based on the Establishment Clause violation because there was no limited facts in the current record, however, the court evidence that the officer was acting pursuant to an concludes that plaintiffs are unlikely to succeed on their official policy or custom of the facility and, in fact, there claim that the staff members' conduct amounts to was evidence that the facility trained officers not to government endorsement of religion. preach or proselytize to inmates. Id. at 1213-14. The plaintiff in Canell did not allege that the officer had the d. The plaintiffs are not likely to succeed on their authority to make policy at the facility or that the officer's access to counsel claim actions were in some way ratified by the facility. Id. at The right of access to the courts is protected by Due 1214. Moreover, as soon the plaintiff complained about Process and Equal Protection Clauses, see Ex parte Hull, the offending behavior, the officer was transferred and 312 U.S. 546, 549, 61 S. Ct. 640, 85 L. Ed. 1034 (1941), the conduct ceased. Id. Murray v. Giarratano, 492 U.S. 1, 11 n.6, 109 S. Ct. The plaintiffs here present a stronger case. First, 2765, 106 L. Ed. 2d 1 (1989) and requires that prisoners R.G. testified that several HYCF staff members, be afforded "a reasonably adequate opportunity to present including YCOs Josiah and Rosete and teacher Barbara claimed violations of fundamental constitutional rights to Tanji, singled her out for religious teachings. (R.G. Decl. the courts." Bounds v. Smith, 430 U.S. 817, 825, 97 S. Ct. PP 4-5, 9-10, 14.) R.G.'s testimony is supported by a May 1491, 52 L. Ed. 2d 72 (1977), overruled in part on other 17, 2005 letter from Dr. Bidwell to Tufono-Iosefa, which grounds, Lewis v. Casey, 518 U.S. 343, 354, 116 S. Ct. was copied to defendants Agnew and Koller. (Ex F to 2174, 135 L. Ed. 2d 606 (1996). Prison officials must Bidwell Decl.) That letter reported the salient details of both eliminate undue barriers to inmate access and some of the religious proselytizing alleged by R.G. YCOs "shoulder affirmative obligations to assure all prisoners Josiah and Rosete submitted declarations generally meaningful access to the courts." Bounds, 430 U.S. at denying [**87] aspects of R.G.'s account. Although 824. [**89] For juveniles, courts have held that Rosete claimed in her declaration that R.G. initiated meaningful access requires access to counsel to allow conversations about the Bible, Rosete's testimony at the children to assert violations of their civil rights related to evidentiary hearing revealed that Rosete also initiated their incarceration. See John L. v. Adams, 969 F.2d 228, conversations about the Bible with R.G. (Tr. II at 19:5-12 230 (6th Cir. 1992) ("We hold that incarcerated juveniles (Rosete).) Josiah has not testified, and Tanji has neither do have a constitutional right of access to the courts, and that in order to make this right meaningful the State must Page 24 415 F. Supp. 2d 1129, *1161; 2006 U.S. Dist. LEXIS 24968, **89

provide the juveniles with access to an attorney."). On the other hand, defendants may be compelled to take to take appropriate measures to ensure ward safety and to The plaintiffs submitted uncontroverted evidence refrain from punitive isolation. While requiring that HYCF recently adopted a policy requiring parental defendants to adopt polices, procedures, and training so consent to allow wards to speak with the ACLU about the as to provide wards with a reasonably safe environment conditions of their confinement. (Supp. Perrin Decl. PP at HYCF may impose some administrative 22, 38; Alston Decl. PP 6, 8, Ex. 6; Ex. C to inconvenience, any burden on the defendants is minimal Tufono-Iosefa Decl.) There is also evidence that HYCF when viewed in light of defendants' legal responsibility to has failed to adopt a policy and to train staff regarding a provide a safe environment, not only to the plaintiffs, but system for ensuring wards' rights to authorized legal calls to all of the State's wards that are entrusted to HYCF's and legal visits with civil counsel. (Hardy Decl. PP custody and care. Thus, the balance of hardships tips 10-11.) decidedly in plaintiffs' favor.

The court need not determine whether HYCF has Finally, protection of constitutional rights is a implemented adequate policies to ensure a right to compelling public interest, see United States v. Raines, counsel, however, because the plaintiffs have not 362 U.S. 17, 27, 80 S. Ct. 519, 4 L. Ed. 2d 524 (1960) submitted evidence indicating that they were denied their [**92] ("There is the highest public interest in the due right to counsel. The only plaintiff [**90] with standing observance of all the constitutional guarantees[.]"), and in this case who alleges any facts regarding right to "weighs heavily in the balancing of harms, for the counsel is R.G. She claims she was denied permission to protection of those rights is not merely a benefit to contact her retained attorney at the ACLU on one plaintiff but to all citizens." Int'l Soc'y for Krishna occasion. (R.G. Decl. P 43.) R.G. was represented by the Consciousness v. Kearnes, 454 F. Supp. 116, 125 (E.D. ACLU in preparation for the instant lawsuit while she Cal. 1978) (discussing First Amendment rights). The was incarcerated at HYCF; R.G. therefore had access to public interest is best served by issuing injunctive relief counsel to bring her civil rights claim, as constitutionally to the plaintiffs. required, and there is no evidence that HYCF interfered with her relationship with counsel. Even if the court IV. CONCLUSION credits R.G.'s statement that she was denied the right to call her attorney on one occasion, this incident does not For the reasons stated herein, the court GRANTS the rise to the level of a constitutional violation. plaintiffs' motion for preliminary injunction as to plaintiffs' Due Process claim, DENIES the motion as to e. The plaintiffs have demonstrated a possibility plaintiffs' Establishment Clause and access to counsel of irreparable harm and the balance of hardships and claims, and does not reach plaintiffs' Equal Protection the public interest weight in favor of granting claim. preliminary injunctive relief On January 27, 2006 the court held a status Because the plaintiffs have demonstrated a strong conference and heard from State of Hawaii Attorney likelihood of success on their Due Process claim, they General Mark Bennett regarding HYCF's ongoing need only show a possibility of irreparable harm in negotiations with DOJ. Mr. Bennett represented that [*1162] order to be entitled to preliminary injunctive HYCF is close to reaching an agreement with DOJ and relief. Warsoldier v. Woodford, 418 F.3d 989, 993-94 requested that the court delay issuing an injunction in this (9th Cir. 2005). And as the Ninth Circuit has stated, "'An matter until an agreement has been finalized. To the [**91] alleged constitutional infringement will often extent possible, the court seeks to avoid subjecting HYCF alone constitute irreparable harm.'" Associated Gen. to conflicting [**93] obligations under the injunction in Contractors of Cal.. v. Coal. for Econ. Equity, 950 F.2d this case and the DOJ agreement. Therefore the court 1401, 1412 (9th Cir. 1991) (quoting Goldie's Bookstore finds that a short delay in issuing an injunction is v. Superior Ct., 739 F.2d 466, 472 (9th 1984)). warranted so that the court may consider HYCF's obligations under the DOJ agreement when crafting a Moreover, the balance of hardships here is clear. On remedy. The court has instructed the parties to attempt to the one hand, plaintiffs will suffer serious harm if they reach an agreement on injunction language consistent are again subjected to harassment and abuse at HYCF. with court's findings in this order and any broader Page 25 415 F. Supp. 2d 1129, *1162; 2006 U.S. Dist. LEXIS 24968, **93

remedies negotiated with DOJ. J. Michael Seabright

IT IS SO ORDERED. United States District Judge

DATED: Honolulu, Hawaii, February 7, 2006. Page 1

7 of 99 DOCUMENTS

MINNIE SMITH, APPELLEE v. DISTRICT OF COLUMBIA, APPELLANT GAIL L. TURNER, ADMINISTRATOR, YOUTH SERVICES ADMINISTRATION, ET AL., APPELLEES

No. 03-7143

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

413 F.3d 86; 367 U.S. App. D.C. 86; 2005 U.S. App. LEXIS 13288

March 22, 2005, Argued July 5, 2005, Decided

SUBSEQUENT HISTORY: As Amended October 19, Leon Dayan argued the cause for appellee Minnie Smith. 2005 With him on the brief were Robert M. Weinberg, W. Rehearing denied by Smith v. District of Columbia, 2005 Gary Kohlman, and Laurence S. Gold. Abigail V. Carter U.S. App. LEXIS 22760 (D.C. Cir., Oct. 19, 2005) entered an appearance. Rehearing, en banc, denied by Smith v. District of Columbia, 2005 U.S. App. LEXIS 22967 (D.C. Cir., Oct. JUDGES: Before: GINSBURG, Chief Judge, and 19, 2005) EDWARDS and TATEL, Circuit Judges. Opinion for the Motion granted by, in part, Motion denied by, in part, Court filed by Circuit Judge TATEL. Dissenting opinion Costs and fees proceeding at Smith v. District of filed by Chief Judge GINSBURG. Columbia, 2006 U.S. Dist. LEXIS 91994 (D.D.C., Dec. 18, 2006) OPINION BY: TATEL Costs and fees proceeding at, Motion granted by, in part, Motion denied by, in part Smith v. District of Columbia, OPINION 2006 U.S. Dist. LEXIS 91442 (D.D.C., Dec. 19, 2006) [**89] [*89] TATEL, Circuit Judge: Sometime PRIOR HISTORY: [***1] Appeal from the United after 11 p.m. on April 28, 1999, an unidentified assailant States District Court (USDC) for the District of shot and killed seventeen-year-old Tron Lindsey and his Columbia. (No. 00cv00894). roommate in the apartment where they lived as part of a Smith v. District of Columbia, 2003 U.S. Dist. LEXIS program for delinquent youths in the District of 26547 (D.D.C., Sept. 11, 2003) Columbia's legal custody. Alleging among other things that the District, by virtue of its deliberate indifference in selecting and monitoring the program provider, had COUNSEL: Donna M. Murasky, Senior Assistant violated Tron's substantive due process rights, Tron's Attorney General, argued the cause for appellant. With grandmother brought suit as next of kin [***2] and on her on the briefs were Robert J. Spagnoletti, Attorney behalf of his estate. After a twelve-day trial, the jury General, and Edward E. Schwab, Deputy Attorney found the District liable and awarded damages of $ General. 72,000. Because Tron's grandmother "proffered 'sufficient evidence upon which a jury could properly Page 2 413 F.3d 86, *89; 367 U.S. App. D.C. 86, **89; 2005 U.S. App. LEXIS 13288, ***2 base a verdict' in her favor," Mackey v. United States, 303 experience with independent living programs. Jones hired U.S. App. D.C. 422, 8 F.3d 826, 829 (D.C. Cir. 1993) a program director, Eric Antonio, who did have (quoting Richardson v. Richardson-Merrell, Inc., 273 experience with at-risk youths but, like Jones, had never U.S. App. D.C. 32, 857 F.2d 823, 828 (D.C. Cir. 1988)) before worked at an independent living program--as he (emphasis omitted), we affirm. acknowledged, he "did not know that much about" such programs. Tr. 3/12/03 at 67. I. As the site for their program, Jones and Antonio The District of Columbia has several ways of dealing selected Queenstown Apartments in Mt. Ranier, with delinquent youths. It places many in the Oak Hill Maryland. Located fairly close to a Metro stop and Youth Center--a juvenile detention facility with a history grocery stores, this complex struck them as a good place of problems so serious that even the District has called it for the youths to live, and they thought its easy access to a "troubled program." See District of Columbia v. Jerry D.C. would facilitate weekend home visits. The complex M., 738 A.2d 1206, 1212 (D.C. 1999). It places others in had over 1000 units, arranged in a "garden-style" layout programs geared to youths who've committed less serious with every few units sharing the same main door to the crimes or seem relatively likely to stay out of trouble. outside. Although the complex had several [***5] Such programs include "independent living" security cameras, the main doors had none. Nor did these programs--the focus of this case--in which youths live on doors have locks. Doors leading into individual units did their own in program-provided [***3] apartments, have locks, as well as peepholes, but record evidence though subject to restrictions on their activities and suggests that poor hallway lighting made the peepholes supervision by staff. useless. At trial, an expert testified that factors like "low lighting; no locks or very few locks; no accountability; no Rather than running its own independent living guard services; no guard personnel watching the area, all program, the District contracts the work out to private of which was the case at Queenstown" tend to attract companies. Although a 1986 D.C. law required the drug crimes. Tr. 3/18/03 at 103. Another expert testified Mayor to promulgate rules for providers of residential that Queenstown Apartments "had been an open air drug facilities for District juveniles, see D.C. Code § 7-2103; market for at least 15 years" prior to 1998. Tr. 3/14/03 at see generally id. §§ 7-2101 to 7-2108 (codifying the 6. Youth Residential Facilities Licensure Act of 1986), the Mayor failed to develop any such rules for independent During their site selection process, Antonio and living programs prior to the events leading to this case. Jones met with a Queenstown Apartment manager but Absent such rules, no minimum standards were required asked no questions about safety or security, as Antonio of District providers generally, and the city's Youth conceded at trial. Nor did they inform the manager that Services Administration (YSA) had, in the words of its youths in their program would be adjudicated Administrator Gail Turner, "no specific [*90] [**90] delinquents. Despite Queenstown's handful of security standards" for selecting providers. Tr. 3/17/03 at 32. measures--such as offering two reduced-rent units to police officers--the manager testified that "we simply Viewed in the light most favorable to Tron's weren't equipped" to accommodate a program for grandmother, Minnie Smith, see, e.g., Ekedahl v. juvenile delinquents. Tr. 3/21/03 at 96. The manager even COREStaff, Inc., 337 U.S. App. D.C. 236, 183 F.3d 855, acknowledged that Queenstown "would not have [***6] 858 (D.C. Cir. 1999) (per curiam) (holding that we view let the program on the grounds" had it known that the the evidence in the light most favorable to the prevailing program's youths were juvenile delinquents. Id. at 147. party), the record reveals the following events: [***4] In early 1998, the company the District had contracted with With Queenstown Apartments in mind as a site, ESA to operate an independent living program for delinquent sought a contract from YSA. YSA's point person for the youths folded due to allegations of tax fraud. A former approval process was a social worker, Kenneth King. employee of that company, James Jones, formed a new Because the District had failed to develop criteria for company, Education Solutions Academy (ESA), evaluating contractors, see supra at 3, King had no intending to seek the District's business. Although Jones standards against which to judge ESA's proposal. Along had worked at a school run by the contractor before its with other social workers, King met with Jones and collapse, no record evidence suggests that he had any Page 3 413 F.3d 86, *90; 367 U.S. App. D.C. 86, **90; 2005 U.S. App. LEXIS 13288, ***6

Antonio, but never asked whether either had prior that I will often time go the extra step for someone who experience with independent living programs. Nor did he acts like this is what they want." Tr. 3/12/03 at 128. inquire whether ESA had a Maryland license to operate an independent living program involving minors. Had he ESA required all youths to obey a 7 p.m. curfew. done so, he would have discovered that ESA lacked the After that hour, they were neither to leave their necessary license. Although King twice visited apartments nor to let anyone in except ESA staff. But at Queenstown Apartments, he neither met with least in Tron's case, this requirement was virtually never Queenstown [*91] [**91] officials nor made any observed. Record evidence suggests that out of the inquiries about safety or security. fifty-one days Tron spent at ESA, he missed his curfew fifty times. As Antonio put it, "he usually showed up Acting on King's recommendation, YSA signed a anywhere after 7:00 to as late as 11:00. He would usually contract with ESA in November 1998. (Less than a year be there the next morning." Tr. 3/13/03 at 12. According later, King quit his YSA job to become ESA's CEO at an to Antonio, although ESA docked Tron's allowance annual salary of $ 84,000.) During its first year of (which ranged from $ 15 to $ 25 a [***9] week), it never operation, ESA had up to sixteen youths living at otherwise punished him. Antonio acknowledged, Queenstown Apartments [***7] at any given time. For however, that Tron might have gotten sent back to Oak each youth it received $ 110 per day from the District. Hill if he had continued to violate the curfew.

Seventeen-year-old Tron Lindsey was one such Uncontrolled curfew violations were not ESA's only youth. Due to his parents' drug problems, he had grown problem. During Tron's brief time at Queenstown, ESA up with his grandmother. Some time after moving out of had to release one counselor (a man with a criminal her house, he was arrested for hitting and kicking a man, record) due to poor performance and rumors that he was charged with assault, found guilty, and placed at the Oak buying marijuana from ESA youths. ESA also knew the Hill Youth Center. In February 1999, a D.C. Superior man's replacement had a criminal record involving drugs Court probation officer recommended that Tron be taken (specifically, although ESA sought no details, a out of Oak Hill and placed in an independent living conviction some years past for PCP possession with the program. The officer made this recommendation on the intent to distribute). Additionally, ESA failed to monitor basis of several factors, including Tron's "very limited the crime rate at Queenstown Apartments. "It just didn't court involvement," his wish to complete his education, occur to me at the time to do that," Antonio explained. and his own preference for an independent living Tr. 3/12/03 at 108. Had ESA kept tabs, it would have program as opposed to more time at Oak Hill. Tr. 3/20/03 learned that recent crimes committed on the premises at 69, 70. Accepting this recommendation, the court included an October 1998 [*92] [**92] robbery by a placed Tron with ESA--a placement that only another man with a gun, an October 1998 robbery and assault by court order could change. two masked men with guns, a November 1998 robbery and assault, a November 1998 robbery and assault by two Arriving at ESA's Queenstown site in early March, men with guns, a December 1998 burglary, a December Tron was assigned to an apartment unit with another 1998 assault, and a February 1999 robbery by a man with youth, Tyrone Wallace. As part of the program, Tron a gun. attended life skills workshops run by either Antonio or another ESA counselor. With Antonio's help, Tron began The District did little [***10] to monitor ESA's spending several hours [***8] a day at Covenant House, problems. It neither looked into whether ESA was an educational program aimed at helping at-risk youth. tracking site safety nor held the company to any staffing Although Tron could only get on the waiting list for some standards. As Turner acknowledged, YSA had "no Covenant House classes, he convinced one of its standards . . . as to qualifications that were necessary for employees to set up an independent study for him and the counselors to work in the program." Tr. 3/17/03 at 35. another ESA youth. The employee explained that while Although a YSA social worker was generally on notice of she wouldn't do this for everyone, Tron impressed her. Tron's curfew violations, nothing in the record suggests Tron "expressed a real, particular desire that seemed very she saw this as a concern worth pursuing. sincere . . . . He was a very polite young man. He was cooperative. He was courteous, and for myself I know Similarly--and even more significantly--the District took no noteworthy steps in response to two violent Page 4 413 F.3d 86, *92; 367 U.S. App. D.C. 86, **92; 2005 U.S. App. LEXIS 13288, ***10 assaults on ESA youths. First, in early February 1999, an The jury also found the District and ESA liable for ESA youth was murdered while visiting his family during negligence that proximately caused Tron's death, but a home visit made in violation of ESA rules. The District determined that neither Queenstown Apartments [*93] official reviewing the murder was "unable to determine" [**93] nor Turner had acted negligently. It awarded just whether D.C.'s related statutes and policies were over $ 72,000 in damages. Only the District filed a adequate, Pl.'s Ex. 32, and the investigation went no post-verdict motion for judgment as a matter of law, further. Then, in early April 1999, an ESA youth was which the district court denied, see Smith v. District of mugged and robbed at his apartment by an armed Columbia, 2003 U.S. Dist. LEXIS 26547, No. 00-0894 assailant after curfew. At the time, the youth was (D.D.C. Sept. 11, 2003), [***13] and only the District violating curfew because he had another ESA youth (also now appeals. For the District to prevail fully, it must do violating curfew) visiting in his apartment. so on both the due process and negligence counts; by contrast, if Smith prevails on the section 1983 count, she On the night of April 28, 1999, in violation of their will receive the full award. curfew, Tron [***11] or Tyrone (the record does not conclusively show which) let a visitor into their II. apartment sometime after 11 p.m. Using a silencer-equipped gun and firing single shots to the head, We begin with the applicable legal standard. Because the visitor killed both youths. The murders, which a stranger--not a government agent--murdered Tron, the brought the death toll of ESA youths to three out of District can have committed a constitutional violation sixteen (a fourth would be murdered by the end of the only if it had an affirmative obligation to protect Tron year), were never solved. At trial, the homicide detective from harm. As the Supreme Court explained in DeShaney in charge of the case testified that the murders resulted v. Winnebago County Department of Social Services, 489 from a targeted killing. The detective testified that he U.S. 189, 196, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), thought Tyrone was shot first and that when criminals use "the Due Process Clauses generally confer no affirmative silencers, typically "the first person [they] shoot is going right to governmental aid, even where such aid may be to be the subject that [they] are probably looking for." Tr. necessary to secure life, liberty, or property interests." Cf. 3/13/03 at 106; see also id. at 145-46. Martinez v. State of California, 444 U.S. 277, 283-85, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980) (finding that state Succeeding Tron's parents in interest, his parole board had no particular constitutional obligation to grandmother an individual killed by a paroled prisoner). That said, the Court has recognized that "in certain limited Minnie Smith sued various parties including the circumstances the Constitution imposes upon the State District, Gail Turner, Queenstown Apartments, and ESA affirmative duties of care and protection with respect to (renamed Re-Direct, Inc., because its original name was particular [***14] individuals." DeShaney, 489 U.S. at improper under Maryland law) in U.S. District Court for 198. Such individuals include prisoners, see Estelle v. the District of Columbia. Smith brought substantive due Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 process claims against the District and ESA pursuant to (1976), and mental patients involuntarily committed to 42 U.S.C. § 1983 and negligence claims against all state facilities, Youngberg v. Romeo, 457 U.S. 307, 73 L. defendants. [***12] The district court rejected the Ed. 2d 28, 102 S. Ct. 2452 (1982). In such cases, District's motion for summary judgment on the governmental "deliberate indifference" may shock the substantive due process claim and the case went to trial. conscience sufficiently to violate due process. See See Smith v. District of Columbia, 2002 U.S. Dist. LEXIS Fraternal Order of Police Dep't of Corrs. Labor Comm. 27819, No. 00-0894, slip op. at 7-14 (D.D.C. Nov. 18, v. Williams, 363 U.S. App. D.C. 1, 375 F.3d 1141, 2002). 1145-46 (D.C. Cir. 2004). DeShaney explained why:

After the close of Smith's case, which developed the When the State takes a person into its facts discussed above and included expert testimony, the custody and holds him there against his District moved for a directed verdict, which the court will, the Constitution imposes upon it a denied with prejudice. Following presentation of corresponding duty to assume some defendants' case, the jury found that both the District and responsibility for his safety and general ESA had violated Tron's substantive due process rights. Page 5 413 F.3d 86, *93; 367 U.S. App. D.C. 86, **93; 2005 U.S. App. LEXIS 13288, ***14

well-being. . . . The rationale for this District's custody when he was murdered," id. at 27. We principle is simple enough: when the State agree with Smith. by the affirmative exercise of its power so restrains an individual's liberty that it For starters, the District's legal custody over Tron is renders him unable to care for himself, and a good indicator that it had a duty to look after him. at the same time fails to provide for his Because the District, rather than Tron's family, had basic human needs . . . it transgresses the primary legal control over [***17] him, the District had substantive limits on state action set by the legal responsibility for his daily care. Cf. Reno v. Koray, ... Due Process Clause. 515 U.S. 50, 63, 132 L. Ed. 2d 46, 115 S. Ct. 2021 (1995) (noting the power the government has over those in its 489 U.S. at 199-200; [***15] see also County of legal custody). The District downplays the significance of Sacramento v. Lewis, 523 U.S. 833, 851, 140 L. Ed. 2d this point, but our case law recognizes the relevance of 1043, 118 S. Ct. 1708 (1998). Conversely, deliberate formal indicia in assessing whether custody attaches for indifference will not violate due process where the state DeShaney purposes. In Harris v. District of Columbia, has no "heightened responsibility toward the individual." 289 U.S. App. D.C. 357, 932 F.2d 10, 14 (D.C. Cir. Butera v. District of Columbia, 344 U.S. App. D.C. 265, 1991), we held that District police officers had no clearly 235 F.3d 637, 651 (D.C. Cir. 2001). DeShaney was just established affirmative duty to someone they were such a case. There, the plaintiff argued the state had a transporting to the hospital because he "had not been heightened responsibility to a child whom it had reason to formally committed, either by conviction, involuntary suspect was being abused by his father. Because the child commitment, or arrest, to the charge of the District" prior remained in his parent's custody, however, the Court to the drug overdose that triggered his need for help. In found that no such responsibility existed and that the state contrast to the facts of Harris, at the time Tron was therefore committed no constitutional violation by failing murdered, he was "someone whom [the District] had to respond to the abuse. See id. at 201-02. In a footnote, already formally committed to its custody," id. at 15. the Court added that had "the State by the affirmative exercise of its power removed [the child] from free Just as important, the District's control over Tron society and placed him in a foster home operated by its restrained his liberty against his will. An adjudicated agents, we might have a situation sufficiently analogous delinquent placed at ESA by a restrictive court order, to incarceration or institutionalization to give rise to an Tron had to participate in the program. [***18] To be affirmative duty to protect." Id. at 201 n.9. Observing sure, Tron had more freedom than a prisoner--subject to [*94] [**94] that several circuits had reached that very ESA rules, he could come and go, and take conclusion, the Court "expressed [***16] no view on the ESA-approved weekend home visits. ESA's failure to validity of this analogy." Id. crack down on Tron's curfew violations also left him with a longer leash than he was formally entitled to under the This case presents a scenario close to the one program's rules. But such flexibility hardly amounts to described in the DeShaney footnote. Tron was an freedom from state restraints. Tron had to live at adjudicated delinquent whom the District had, by Queenstown Apartments. He had no choice. He risked affirmative exercise of its police power, placed with its punishment, including the possibility of returning to Oak agent, ESA, through a court order revocable only by Hill, when he failed to obey ESA restrictions on how and another court order. According to Smith, the District thus where he spent his time. The District had "restrain[ed his] had sufficient custody over Tron to impose upon it a freedom to act on his own behalf,'" DeShaney, 489 U.S. constitutional duty not to act indifferently with respect to at 200, and held him subject to its control. his welfare. "Exercise of [the District's] custodial power to dictate the terms" of Tron's "living arrangements" The District insists that Tron's liberty was through a court order deprived him of "liberty to choose unconstricted because at his court hearing he had his own living arrangements." Appellee's Br. at 23. The expressed a preference for ESA over Oak Hill. But Tron District sees the case very differently. Acknowledging could choose only between a greater restraint and a lesser that "to be sure, Tron was in the District's legal custody," one. As District counsel acknowledged at oral argument, Appellant's Br. at 28, it argues that nonetheless Tron he could not walk free. Whether he preferred ESA or Oak "cannot meaningfully be said to have been in the Hill, he would remain a juvenile delinquent held "against Page 6 413 F.3d 86, *94; 367 U.S. App. D.C. 86, **94; 2005 U.S. App. LEXIS 13288, ***18 his will," id., like the prisoner in Estelle, 429 U.S. 97, 50 absent District approval, also lacked freedom to seek L. Ed. 2d 251, 97 S. Ct. 285, [***19] and the alternate arrangements--precisely the two circumstances involuntarily confined mental patient in Youngberg, 457 courts have found create DeShaney custody in the foster U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452. In this [*95] care situation. As the Eighth Circuit explained, the state's [**95] respect, he differed sharply from plaintiffs in duty arises because in "foster care, a child loses his Powell v. District of Columbia, 634 A.2d 403 (D.C. freedom and ability to make decisions about his own 1993), a case relied on by the District as persuasive welfare, and must rely on the state to take care of his authority. There, the D.C. Court of Appeals found the needs." Norfleet, 989 F.2d at 293; see also, e.g., Taylor, District had no affirmative duty towards a homeless 818 F.2d at 795 (explaining that the state has an family whom it had provided with shelter. The court affirmative duty because foster children are "placed . . . in relied on the fact that no family member "was a ward or a custodial environment . . . [and] unable to seek prisoner of the District, nor was the family's freedom of alternative living arrangements"). action curtailed." Id. at 410. Unlike these family members--who could go elsewhere if they objected to the While many of these foster care cases involved shelter the District provided them--Tron was legally younger children, the principle remains the same: where bound to participate in ESA and live at the site it the government assumes full responsibility for a child by provided. He could not have gone elsewhere even if, for stripping control from the [***22] family and placing the example, he felt threatened by his roommate or his child in a government-controlled setting, the government neighbors. For DeShaney purposes, he was thus in the assumes a duty for the child's welfare. Indeed, the Third District's custody, and the "Constitution imposed upon Circuit has specifically applied this principle to older [the District] a corresponding duty to assume some children. Nicini, 212 F.3d at 808 (finding that the state responsibility for his safety and general well-being." owed a duty of care to an adolescent in foster care DeShaney, 489 U.S. at 200. because even though "foster children, especially older ones, enjoy a greater degree of freedom and are more This conclusion finds support in decisions [***20] likely to be able to take steps to ensure their own safety," (like those cited in DeShaney, 489 U.S. at 201 n.9) the state has nonetheless "by affirmative act, [*96] holding that children in foster care are in state custody for [**96] render[ed them] substantially 'dependent upon the substantive due process purposes and accordingly that in state . . . to meet [their] basic needs'") (quoting D.R. v. placing them in foster homes and monitoring their Middle Bucks Area Vocational Tech. Sch., 972 F.2d progress, the state owes them a constitutional duty of 1364, 1372 (3d Cir. 1992) (en banc)) (ellipsis in original). care. See Doe v. New York City Dep't of Social Servs., Similarly, we see no reason to treat Tron differently 649 F.2d 134, 141-42 (2d Cir. 1981); Nicini v. Morra, because he was a juvenile delinquent rather than a foster 212 F.3d 798, 808 (3d Cir. 2000) (en banc); Meador v. child. If anything, the difference cuts in Tron's favor, Cabinet for Human Res., 902 F.2d 474, 475-76 (6th Cir. since it caused the District to commit him to a state actor 1990); Norfleet v. Ark. Dep't of Human Servs., 989 F.2d (ESA) rather than a purely private party. Cf. K.H., 914 289, 293 (8th Cir. 1993); Yvonne L. v. N.M. Dep't of F.2d at 851-52 (suggesting that a state may have a duty to Human Servs., 959 F.2d 883, 890-93 (10th Cir. 1992); monitor only if it places a child with [***23] state Taylor v. Ledbetter, 818 F.2d 791, 796 (11th Cir. 1987) actors); Milburn, 871 F.2d at 476-77 (similar). (en banc); see also Hernandez v. Tex. Dep't of Protective and Regulatory Servs., 380 F.3d 872, 880 (5th Cir. 2004) Unhappy with the foster-child analogy, the District (assuming such a duty); K.H. v. Morgan, 914 F.2d 846, urges us to look instead to decisions holding that public 851-52 (7th Cir. 1990) (only reaching duty to place, not schoolchildren, despite compulsory education laws, are duty to monitor). But see Milburn v. Anne Arundel not in state custody for DeShaney purposes. See, e.g., County Dep't of Soc. Servs., 871 F.2d 474, 476 (4th Cir. D.R. v. Middle Bucks Area Vo. Tech. Sch., 972 F.2d 1989) [***21] (holding that a state had no affirmative 1364, 1373 (3d Cir. 1992) (en banc); Doe v. Hillsborough duty to a child placed voluntarily by his parents into Indep. Sch. Dist., 113 F.3d 1412, 1415 (5thCir. 1997) (en foster care since "he was in the custody of his foster banc). But see Hasenfus v. LaJeunesse, 175 F.3d 68, 72 parents, who were not state actors" rather than in the (1st Cir. 1999) (suggesting, without deciding, that under state's custody). Like such children, Tron not only looked certain circumstances a public school has a constitutional to the government as primary guardian of his needs, but, duty of care towards its students). Just as courts have Page 7 413 F.3d 86, *96; 367 U.S. App. D.C. 86, **96; 2005 U.S. App. LEXIS 13288, ***23 found that compulsory schooling laws create no at night, and during curfew. For DeShaney purposes, affirmative state duty, the District argues, so should we then, Tron remained in District custody, and if the find that the District's restrictive placement of Tron at District was indeed deliberately indifferent to his welfare ESA gave rise to no affirmative duty on its part. in a way that shocked the conscience and led to his murder, then the District committed a constitutional At least on the surface, we see some tension between [***26] violation--the issue to which we now turn. the foster care and public school cases. Both involve state constriction of a child's liberty--the child must live with III. the foster parents and the child must receive schooling--yet only the [***24] former triggers In determining whether the jury could reasonably DeShaney custody. Courts have typically distinguished have found that the District violated Tron's due process these cases by treating the custody analysis as an rights, we view all disputed facts and draw all reasonable all-or-nothing inquiry: the government has either inferences in favor of Minnie Smith, the prevailing party. assumed primary responsibility for controlling and caring Ekedahl, 183 F.3d at 858. Pointing out that Smith for a child (and thus, as in the foster care context, the prevailed against the District and ESA but not Turner and child is always in government custody) or it has assumed Queenstown, the District throws a twist into this standard only limited responsibilities for parts of the day (and of review, arguing that we must view all facts related to thus, as in the school cases, the child is never in Queenstown and Turner in the light most favorable to government custody). For example, the Third Circuit those parties, while viewing all other facts in the light found no custody in the school context because "parents most favorable to Smith. But the District cites no remain the primary caretakers," whereas in the foster care authority for this novel proposition, nor have we found context "the state assumes an important continuing . . . any. Had Smith appealed the jury's verdict in favor of responsibility for the child's well-being" and "the child's Queenstown and Turner, we would view them as placement renders him or her dependent upon the state, prevailing parties for purposes of Smith's appeal, but we through the foster family, to meet the child's basic see no reason why the District should benefit from all needs." D.R., 972 F.2d at 1371, 1372. Similarly, the Fifth inferences to which Queenstown and Turner might have Circuit stressed that in the school context the "custody is been entitled. Perhaps the District meant to argue that the intermittent," "the student returns home each day," and jury verdicts were inconsistent. In civil cases where this "parents remain the primary source for the basic needs of argument is properly raised, it does impose a special their children." Doe, 113 F.3d at 1415; see also Sargi v. obligation on the court [***27] to view the evidence in a Kent City Bd. of Educ., 70 F.3d 907, 911 (6th Cir. 1995) manner that reconciles the verdicts if possible, and to [***25] (noting that "the parents, not the state, remain grant a new trial if not. Freeman v. Chicago Park Dist., the child's primary caretakers"). 189 F.3d 613, 615 (7th Cir. 1999). While we have serious doubts about whether to apply this standard where, as But we need not explore the ins and outs of this here, the issue is not properly raised, see Babcock v. Gen. issue. For our purposes, it matters not at all whether Motors Corp., 299 F.3d 60, 63-64 (1st Cir. 2002) DeShaney custody requires that the government be the (holding that in order to preserve the issue a party must child's primary caretaker, that the government constrict object to inconsistent verdicts prior to judgment being the child's liberty, or both. Nor does it matter whether entered), we need not resolve that point since, as we DeShaney custody is an all-or-nothing affair or can explain below, see infra at 25-26, the verdicts are instead, as the First Circuit has suggested, attach at consistent. intermittent times based on particular circumstances, see Hasenfus, 175 F.3d at 72. In Tron's case, like the foster The inconsistent-verdicts issue aside, we may reverse care cases and unlike the public school cases, all these the district court's denial of the District's motion for conditions were met. The District served as Tron's legal judgment as a matter of law only if no reasonable jury custodian and primary caregiver. It placed him in a could have found in Smith's favor. Ekedahl, 183 F.3d at program that constrained his liberty by limiting, among 858. "Intrusion upon the rightful province of the jury . . . other things, where he lived and what he could do. is highly disfavored. We have repeatedly emphasized that Indeed, Tron was murdered while subject to these 'the jury's verdict must stand unless the evidence, together constraints [**97] [*97] --at Queenstown Apartments, with all inferences that can reasonably be drawn Page 8 413 F.3d 86, *97; 367 U.S. App. D.C. 86, **97; 2005 U.S. App. LEXIS 13288, ***27 therefrom is so one-sided that reasonable [people] could to handle detainees with medical problems amounted to not disagree on the verdict.'" Boodoo v. Cary, 305 U.S. an unconstitutional municipal policy, the Supreme Court App. D.C. 409, 21 F.3d 1157, 1161 (D.C. Cir. 1994) explained: [***28] (quoting McNeal v. Hi-Lo Powered Scaffolding, Inc., 266 U.S. App. D.C. 473, 836 F.2d 637, 640-41 (D.C. It may seem contrary to common sense Cir. 1988)) (third alteration in original). "We cannot to assert that a municipality will actually substitute our judgment for that of the jury; therefore, we have a policy of not taking reasonable neither assess witness credibility nor weigh the steps to train its employees. But it may evidence." Mackey, 8 F.3d at 829. happen that in light of the duties assigned to specific officers or employees the need Moreover, because the District raised its for more or different training is so sufficiency-of-the-evidence arguments as to the due obvious, and the inadequacy so likely to process claim only in its pre-verdict motion for judgment result in the violation of constitutional as a matter of law and not in its post-verdict motion, the rights, that the policymakers of the city most it can win is a new trial. Fredrick v. District of can reasonably be said to have been Columbia, 349 U.S. App. D.C. 79, 254 F.3d 156, 160 deliberately indifferent to the need. In that (D.C. Cir. 2001); but see Unitherm Food Sys. v. event, the failure to provide proper Swift-Eckrich, Inc., 161 L. Ed. 2d 189, 125 S. Ct. 1396 training may fairly be said to represent a (Feb. 28, 2005) (No. 04-597) (granting certiorari to policy for which the city is responsible. resolve the scope of an appellate court's review in such situations), granting cert. to 375 F.3d 1341 (Fed. Cir. City of Canton v. Harris, 489 U.S. 378, 390, 103 L. Ed. 2004). Since, as we explain below, sufficient evidence 2d 412, 109 S. Ct. 1197 (1989) (footnote omitted). supports the jury's verdict, we need not consider whether Similarly, in this case Smith alleges that "the need for the District's failure [*98] [**98] to move for judgment more or different" standards YSA employees could use in as a matter of law at the close of its own case (as opposed selecting and monitoring providers was "so obvious and to at the [***29] close of Smith's case) further limits our the inadequacy so likely to result in the violation of review "to considering whether the verdict is so constitutional rights" that it amounted to a deliberately unsupported by the evidence that allowing it to stand [***31] indifferent District policy. The District would constitute a manifest miscarriage of justice," disagrees, but in order to prevail it must show that no Fredrick, 254 F.3d at 162. reasonable jury could have reached that conclusion. Reviewing the record ourselves, we think sufficient The District presents two fact-based challenges to the evidence supports the jury's conclusion that the District's jury's verdict. First, it argues that the jury could not have lack of standards amounted to a policy of deliberate reasonably concluded that the District had a deliberately indifference that shocks the conscience. indifferent policy or custom under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. The record makes patently clear that the District had 2018 (1978) (holding that municipal liability for purposes no criteria for selecting or monitoring providers like of claims brought under 42 U.S.C. § 1983 must stem ESA. Indeed, the District does not claim otherwise. As from an unconstitutional policy or custom rather than the district court found, this lack of criteria related simply from respondeat superior). Second, it claims that directly to the Mayor's violation of the District's Youth even had such a policy or custom existed, the jury could Residential Facilities Licensure Act, which, for twelve not have reasonably found it to be a "moving force" (i.e., years before Tron's death, had required the promulgation cause) of Tron's death. We address each argument in turn. of standards for youth residential facilities. See Tr. 3/25/03 at 200-02 (describing the Mayor's failure to Deliberate Indifference promulgate standards and holding that the Act "very While a government "policy or custom" is typically clearly" applied to independent living programs). While an affirmative act, government failure to set standards or the District's failure to follow its own law, standing alone, train employees can sometimes amount to an is insufficient for a constitutional tort, "it is far from unconstitutional policy or custom. Considering [***30] a irrelevant," Doe, 649 F.2d at 145. "The more a statute or case where the plaintiff alleged that failure to train police regulation clearly mandates a specific course of conduct, Page 9 413 F.3d 86, *98; 367 U.S. App. D.C. 86, **98; 2005 U.S. App. LEXIS 13288, ***31 the [*99] [**99] more [***32] it furnishes a plausible criteria, the District's review fell short. While "one can basis for inferring deliberate indifference from a failure to argue [about whether the site] was a high crime area or act." Id. at 146. Given the Youth Residential Facilities not," DeMuro testified, the District should have at least Licensure Act, the jury could have inferred that the looked into this issue. Id. at 82-83. Instead, a District District knew it needed standards for programs that employee just "drove around the area a few times" and housed troubled youths. failed to do "a thorough enough check on what this location meant in terms of crime factors for kids." Id. at Even more significantly, uncontested testimony by 83. Paul DeMuro, one of Smith's witnesses and an expert in juvenile justice and child welfare, established that the As to monitoring, DeMuro testified that the District District's failure to have such criteria left it far below similarly fell well short of national standards of care by what national standards of care require of states and failing to have an appropriate policy (or, indeed, any municipalities operating independent living facilities for policy at all). "National standards . . . would say that juvenile delinquents. This held true with respect to both there should be a monitoring system in place and that provider selection and monitoring. there should be quality assurance and a process whereby the jurisdiction that is monitoring the youngsters' As to provider selection, DeMuro called YSA's lack behavior knows the program as it develops." Id. at 82. of criteria for selecting independent living providers According to DeMuro, the District failed in virtually all "quite unusual." Tr. 3/14/03 at 68. "In most states," he aspects of its monitoring responsibilities. Lacking testified, "when there is any kind of residential program criteria, he explained, the "District failed to do a thorough or non-residential program, the public agency will have a job, do due diligence in terms of monitoring this [***35] set of standards or licensing regulations that they would particular program." Id. YSA had a "real problem" in go from to develop a contract with any provider." Id. He how it dealt with incidents like Tron's repeated curfew went on, "in terms of the kind of national standards, one violations, where ESA's failure to respond "sets up would expect there would [***33] be . . . written criteria terrible expectations and consequences between [*100] about site selection, written criteria, a stipulation about [**100] the youngster and the program." Id. at 84. YSA selection and training of staff, written criteria about the had a "responsibility," id. at 90, which it failed to process of selecting kids and getting them prepared for discharge, to make sure that ESA was keeping track of independent living which is a very tricky deal when you crimes in the complex, including the many that occurred are thinking about a 17 or 18 year old living prior to Tron's death, see supra at 7. YSA fell "woefully semi-independently . . . [and a] written description of a short" of national standards in how it dealt with the quality assurance of the reporting system." Id. at 73-74. armed robbery of an ESA youth at his apartment: it failed The need for such criteria, he explained, was particularly to address either the fact that this incident involved two important in light of the "problematic" potential of having curfew violations or the reality of the violence that placed "a number of teens together, particularly juvenile justice "at least two of the youngsters . . . in danger." Tr. 3/14/03 youngsters." Id. at 79. at 85-86. The District should have conducted a program review "from soup to nuts," and it should have done the DeMuro also testified that ESA failed to meet same thing--"pretty quickly"--after the early February national standards in a number of respects which the death of another ESA youth. Id. at 86. Instead, the District, having no criteria, failed to discover during the District responded to that death, like the armed robbery, selection process. Not only was ESA a "relatively new in a "tremendously inappropriate" manner. Id. organization," but it lacked "anybody who had experience in independent living programs." Id. at 77. It even lacked In sum, DeMuro testified that absent written criteria, the license it needed to operate, which the District the District's attempt to select [***36] and monitor its "absolutely" should have determined, id. ESA employed provider of independent living programs was analogous counselors with drug records, who "should [have been] to "building a house without an architect." Id. at 68. excluded" under national standards. Id. at 81. Additionally, DeMuro [***34] testified, national From such evidence, the jury could have reasonably standards required the District to have criteria for concluded that "the need for more or different" standards researching and evaluating site safety. Absent such for selecting and monitoring independent living programs Page 10 413 F.3d 86, *100; 367 U.S. App. D.C. 86, **100; 2005 U.S. App. LEXIS 13288, ***36 for juvenile delinquents "[was] so obvious and the independent living programs, see Tr. 3/17/03 at 32. inadequacy so likely to result in the violation of constitutional rights" that it constituted a deliberately In another case, Morgan v. District of Columbia, 263 indifferent city policy or custom. See City of Canton, 489 U.S. App. D.C. 69, 824 F.2d 1049 (D.C. Cir. 1987), we U.S. at 390. In particular, the jury could have reasonably concluded that the jury could have found deliberate inferred from DeMuro's uncontested testimony that the indifference where the District's policy of overcrowding lack of standards created grave risks to youths in District jails led it to put a prisoner with "violent tendencies" in a custody. Without standards--required both nationally and space with other prisoners, one of whom he then by the District's own law--YSA employees had no assaulted. See id. at 1058-59. We held that since the guidance for selecting and monitoring providers. Without District had reason to be concerned about violence related standards, delinquent youths, a "tricky," "problematic," to overcrowding, the jury could have reasonably inferred and at-risk population, could be sent to totally "that [***39] the District knew or should have known inappropriate programs run by unqualified counselors and that its persistent method of operating the Jail increased located in unsafe areas. Without standards, these youths the risk of violent harm to inmates." Id. at 1060-61. Like could then be left in such programs despite ensuing the jury in Morgan, the jury here could have reasonably violence. Indeed, all these risks were realized when YSA inferred that the District acted indifferently not merely chose [***37] ESA as a provider and subsequently failed because its lack of criteria led it to send the youths to a to react to the murder of one youth and the armed robbery program located at a dangerous site and run by inept of another. In Youngberg's words, the jury reasonably counselors who failed to hold Tron and other youths could have thought that the District's failure to have accountable for violating program rules, but also because standards caused it to fall below the "minimally adequate it failed to react--at all--to the murder of one ESA youth or reasonable [protection required] to ensure safety," 457 and the mugging of another, even though both incidents U.S. at 319, for youths like Tron within its custody. related directly to the program's deficiencies.

This conclusion finds support in cases holding that While we are persuaded that a jury could find juries may infer deliberate indifference from the District's deliberate indifference that shocks the conscience based failure to have adequate safeguards for dealing with on the facts of this case, the dissent, engaging in situations fraught with risk. In Parker v. District of something akin to de novo review, takes a different view. Columbia, 271 U.S. App. D.C. 15, 850 F.2d 708 (D.C. First, the dissent treats the District's lack of standards as Cir. 1988), a case brought by a man shot by District "barely relevant" to whether it was deliberately officers attempting to arrest him in Maryland, we held indifferent to Tron's welfare because "it does not follow that the jury could infer deliberate indifference from the that ad hoc decisions are necessarily reckless." Dissenting police department's failure to train officers adequately in op. at 6. But DeMuro's testimony, entirely ignored by the disarmament and in extrajurisdictional arrest procedures. dissent, offers a clear basis [***40] for inferring that the Expert testimony established that police training District's lack of standards was reckless precisely because inadequately addressed problems unique to it was likely to lead to shoddy provider selection and extrajurisdictional arrests and that, as an expert monitoring. Of course, lack of standards might not "described[] and eventually demonstrated on [plaintiff's] always lead to bad provider-selection decisions--just as counsel," well-trained [***38] police could have lack of training might not mean that officers always fail subdued the suspect without shooting him. Id. at 713-14; to disarm suspects--but that is a matter of causation. see also Young v. City of Providence ex rel. Napolitano, Second, the dissent considers the District's selection of 404 F.3d 4 (1st Cir. 2005). Just as in Parker, the jury ESA "largely irrelevant" because, in the dissent's view, here could have reasonably inferred from DeMuro's "it is entirely possible that ESA, although inexperienced, testimony that the District's lack of criteria fell well ran the program adequately." Id. at 6. We agree that this below acceptable norms. Indeed, this case is even is possible, but the record contains evidence from which a stronger: whereas in Parker the police department offered reasonable jury could reach a different conclusion, such at least some training related to [*101] [**101] as DeMuro's expert testimony that ESA had a "real disarmament and extrajurisdictional arrest, here YSA, in problem" in dealing with repeated curfew violations, see the words of its Administrator, had "no specific Tr. 3/14/03 at 84. Third, the dissent concludes that "it is standards" at all for selecting and monitoring silly" to suggest that the District's approval of Page 11 413 F.3d 86, *101; 367 U.S. App. D.C. 86, **101; 2005 U.S. App. LEXIS 13288, ***40

Queenstown Apartments as the program site could have had marginally adequate safety systems, the District been deliberately indifferent. Dissenting op. at 7. Were deserves no credit because, as King himself testified, the this approval deliberately indifferent, the dissent asserts, District never even investigated site safety. it would mean that all parents who had "chosen" to live at Queenstown were themselves deliberately [***41] As to Turner, not only was she the ninth YSA indifferent to their children's welfare. Id. The dissent's Administrator in sixteen years, but at the time of Tron's logic not only depends on, among other things, the murder she had worked there for less than a year. unsupported assumption that such parents have the choice Crediting her testimony that it typically "takes about (in the sense of having viable options) to select safe twelve months to learn what the job is and what the locales, but also implies that no area--no matter how high requirements are" for such positions, Tr. 3/17/03 at 26, the crime rate--is inappropriate for the District to send the jury could have found that she did not act negligently children to, provided that at least some families live when she failed to grasp YSA's need for standards for there. The dissent further suggests that Queenstown residential youth programs. This is particularly plausible Apartments was relatively safe and--in a footnote--claims given Turner's testimony that dealing with other juvenile its residents faced less risk of serious crime than "the facilities occupied most of her time. She had to address average resident" of the District. Id. at 8 & n.*. Here, the YSA's recent closure of two facilities pursuant to court dissent both ignores record evidence and invokes order, its payment of $ 3 million in fines relating to statistics neither presented to the jury nor subjected to overcrowded facilities, and "conditions of confinement cross-examination. [*102] [**102] The District never [that] were said to have been deplorable." Id. at 65. offered evidence as to D.C. crime rates. But Smith did Turner thought it a "success story" that YSA was not in offer expert testimony to the effect that Queenstown's receivership. Id. at 66. reported crimes for 1998 "represented a high . . . amount of criminal activity in the community," see Tr. 3/14/03 at Moving Force 49, and that Queenstown was "an area of high drug A deliberately indifferent policy or custom is trafficking" and a "high crime area" in 1998 and 1999, "deemed to be the moving force of a constitutional injury see Tr. 3/13/03 at 183, see also id. at 194; Tr. 3/18/03 at if [***44] the 'conduct is a substantial factor in bringing 100-01. The dissent may [***42] disagree with these about the harm.'" Parker, 850 F.2d at 714 (quoting characterizations, but our role is limited to determining Morgan, 824 F.2d at 1062-63). The policy or custom whether "sufficient evidence in the record [] supports the must be "closely related to the ultimate injury," and the jury's verdict," Williams v. First Gov't Mortgage and court should inquire whether "the injury [would] have Investors Corp., 343 U.S. App. D.C. 222, 225 F.3d 738, been avoided" in its absence. City of Canton, 489 U.S. at 742 (D.C. Cir. 2000). 391. We have equated moving force with proximate Finally, returning as promised to the question of cause. Morgan, 824 F.3d at 1058; see also Oklahoma verdict consistency, we see no inconsistency between the City v. Tuttle, 471 U.S. 808, 833 n.9, 85 L. Ed. 2d 791, jury's verdict against the District and its verdicts in favor 105 S. Ct. 2427 (1985) (Brennan, J., concurring). of Queenstown and Turner. We take the Queenstown Proximate cause "includes the notion of cause in fact," verdict first. According to the District, because the jury W. Page Keeton et al., Prosser and Keeton on the Law of found in favor of Queenstown Apartments, we must Torts § 30, at 165 (5th ed. 1984), and requires an element conclude that the site was safe and therefore that the of foreseeability, see id. § 42, at 273-74. District's lack of standards for site selection could not Although "'the proximate cause of an injury is have amounted to deliberate indifference. Both the ordinarily a question for the jury,'" Hicks v. United States, premise and the deduction are flawed. The jury could 167 U.S. App. D.C. 169, 511 F.2d 407, 420 [*103] have reasonably found for Queenstown not because it [**103] (D.C. Cir. 1975) (citation omitted); see also, thought the site safe, but because Queenstown e.g., Rieser v. District of Columbia, 183 U.S. App. D.C. Apartments had a significantly lower duty to the youths 375, 563 F.2d 462, 480 (D.C. Cir. 1977), the District (landlord rather than guardian), lacked notice that these asserts that the jury here could [***45] not have youths might prove particularly troublesome, and had reasonably concluded that its lack of standards was a undertaken at least some efforts to deal with rising crime moving force behind Tron's death. As to rates. Moreover, even if Queenstown Apartments [***43] cause-in-fact--the requirement that Tron's death "would Page 12 413 F.3d 86, *103; 367 U.S. App. D.C. 86, **103; 2005 U.S. App. LEXIS 13288, ***45 not have occurred but for [the District's] conduct," see deliberate indifference to overcrowded prison conditions Keeton et al., supra, § 41, at 266--the District claims that led foreseeably to increased fighting among inmates "it cannot fairly be said that . . . there was an affirmative which in turn led foreseeably to increased injuries. See link between" Tron's death and the District policy or also Parker, 850 F.2d at 714 (holding that failure to train custom. Appellant's Br. at 33. Unwilling to rest entirely officers to disarm suspects rendered foreseeable the on this claim, the District continues: "at worst, YSA's injuries to a suspect shot by an officer who did not selection of ESA to run an independent living program at attempt to disarm him). Indeed, the earlier crimes against Queenstown was a 'but for' cause of his death." Id. at 33. ESA youths made the risks to Tron and the others all the In the District's view, it could not have foreseen Tron's more foreseeable. death: "it was too remote a consequence of the District's inaction; there is no suggestion that Tron's assailant was The District suggests that even if danger to the an agent of the District; and the District was unaware that youths' safety was a foreseeable consequence of its Tron (or his roommate) had been targeted for murder." deliberate indifference in selecting providers, it Id. at 33-34. nonetheless had no way to have foreseen that a program youth would be targeted for murder. In a [*104] Again viewing the record in the light most favorable [**104] similar [***48] vein, the dissent concludes that to Smith, we conclude that the jury could have reasonably because we do not know who killed Tron, his murder was found both cause-in-fact and foreseeability. Cause-in-fact not foreseeable. See dissenting op. at 9. We disagree with is straightforward. The jury could have reasonably both points. Adjudicated delinquents, ESA youths had inferred from DeMuro's testimony [***46] that if the criminal records and likely connections to dangerous District had adopted proper standards, either it would characters. Given their backgrounds, it is unsurprising never have selected ESA as a provider (particularly given that lack of supervision--especially combined with a the inexperience of ESA employees) or it would have questionable site location--would not only increase the required ESA to take additional steps to ensure Tron's likelihood they would become victims of random and the other youths' safety, such as tightening curfew violence, but also make them more likely to engage in enforcement and arranging for more security for their behavior that put them at risk of targeted violence. As apartments--particularly in the wake of the after-curfew Turner herself put it, "many of these [delinquent] young armed robbery of one youth earlier that spring. From this people put themselves in harm's way and don't act inference, the jury could further have concluded that had appropriately many times . . . . Because of their life the District taken these proper precautions, Tron would experiences and how they live, and what they are have lived. Indeed, DeMuro saw a "direct causal link" sometimes attracted to, they are at higher risk of having between the District's failure to follow national standards things done to them." Tr. 03/17/03 at 86. We may not of care and Tron's death. Tr. 3/14/03 at 90-91. know who killed Tron or why, but a reasonable jury could have found such targeted killings foreseeable in As for foreseeability, the "defendant may be held light of the District's failings and at any rate "not highly liable for harm that is foreseeably attributable to his extraordinary in retrospect," Parker, 850 F.2d at 714; see conduct as well as for unforeseeable harm attributable to also Morgan, 824 F.2d at 1063. his conduct, unless it appears that the chain of events is highly extraordinary in retrospect." Parker, 850 F.2d at IV. 714 (internal quotation marks and citation omitted). Here, the jury could have easily found that the District's lack of [***49] In sum, we conclude that sufficient criteria for site safety, provider experience, and [***47] evidence supports the jury's verdict as to Smith's program monitoring led foreseeably to unsafe providers, substantive due process claim. This is not a case where which in turn led foreseeably to youths becoming victims "the evidence, together with all inferences that can of crime. Indeed, an expert testified that in light of the reasonably be drawn therefrom is so one-sided that Queenstown crime rate alone, the murders of Tron and reasonable [people] could not disagree on the verdict." Tyrone were "very predictable, very foreseeable." Tr. Boodoo, 21 F.3d at 1161 (quoting McNeal, 836 F.2d at 3/18/2003 at 98. The causal connection resembles that in 640-41). Because Smith received no separate damages Morgan, 824 F.2d at 1063, where we held that the jury from her common law negligence claim, we have no need had a reasonable basis for concluding that the District's to consider the District's challenges to its liability on that Page 13 413 F.3d 86, *104; 367 U.S. App. D.C. 86, **104; 2005 U.S. App. LEXIS 13288, ***49 count. We affirm the district court's denial of the program; and filled out job applications. To be sure, District's motion for judgment as a matter of law. Lindsey's performance was not unblemished: He often left his study program early and regularly failed to return So ordered. to his apartment before his curfew of 7:00 p.m. Those infractions, however, went neither unnoticed nor DISSENT BY: GINSBURG unaddressed by ESA and nothing in the record suggests Lindsey transgressed in any way that might have DISSENT endangered his life. To the contrary, the record shows Lindsey, nearly an adult, was succeeding admirably in an GINSBURG, Chief Judge, dissenting: The Court independent living environment when he was murdered. today holds the District of Columbia violated the substantive component of the Due Process Clause of the Unfortunately we know little about Lindsey's Fifth Amendment to the Constitution of the United States murder. Lindsey and his roommate were found dead in based upon a murder that, as far as the evidence shows their apartment on April 29, 1999, each with a single and common sense dictates, the District could neither gunshot to the head fired from a gun with a crude silencer have foreseen nor, by taking reasonable precautions, attached. The assailant, whose identity remains unknown, prevented. therefore join neither the opinion [***50] nor was admitted to the apartment without the use of force. the judgment of the Court. Significantly, the police concluded the murder was targeted [***52] but they could not confidently I. Background determine whether the target was Lindsey or his The evidence, viewed most favorably to the appellee, roommate, and the evidence in this case sheds no light tells a story that is not especially complex. Tron Lindsey upon that question. ran away from home at the age of 15 and thereafter lived Lindsey's grandmother, Minnie Smith, acting on on his own for about two years, during which time he behalf of his estate, sued ESA, the Queenstown kept out of trouble with the law. In 1998, Lindsey, then Apartments, the District of Columbia and the District 17, was arrested for assault, adjudged a delinquent, and employee who ran the Youth Services Administration, placed in the District's Oak Hill Youth Center. which oversaw the independent living program, seeking The following year his case was assigned to Joyce damages under 42 U.S.C. § 1983 for a violation of Bradford, a Superior Court probation officer, who found substantive due process and for negligence under the Lindsey "wanted to complete his education" and was common law of the District. The jury, finding the District "pursuing his GED at Oak Hill"; had "very limited court and ESA had both violated the due process clause and involvement"; and "very much wanted to be independent, been negligent, awarded Smith $ 72,000 in damage. The because he had lived in the community for approximately Queenstown Apartments and the District employee were two years on his own." Bradford concluded it was not held not liable. feasible to place Lindsey with either his mother or his II. Analysis grandmother, Minnie Smith. Accordingly, she recommended, and the court agreed, that Lindsey be On appeal the District argues Smith failed to prove placed in a supervised independent living program, which both her constitutional and her common law claims. would enable him both to complete his education and to Because, as the Court notes, Court Op. at 9, each claim get a job. would individually support the entire award of damages, I consider them both. [*105] [**105] Lindsey was enrolled in the program run by Educational Solutions Academy (ESA) at A. The Due Process Claim the Queenstown Apartments in Prince [***51] George's County, Maryland, in March 1999, three months before In order to prove her claim under the due process his 18th birthday. Lindsey's participation in the program clause, Smith must establish (1) the District owed appeared to pay immediate dividends: He entered a Lindsey a duty of care; (2) the District breached [***53] program at Covenant House for at-risk youth; met with that duty by an act exhibiting deliberate indifference to an on-site social worker; scheduled an independent study Lindsey's well-being "so egregious, so outrageous, that it Page 14 413 F.3d 86, *105; 367 U.S. App. D.C. 86, **105; 2005 U.S. App. LEXIS 13288, ***53 may fairly be said to shock the contemporary prisoners and the involuntarily committed, both of whom conscience," County of Sacramento v. Lewis, 523 U.S. are unable to provide for their own basic human needs"). 833, 847 n.8, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998); and (3) a District policy or custom was the "moving force With this proportionality in mind, I agree with the behind the alleged constitutional violation," which District's observation that ESA, when it constrained requires showing either that Lindsey's murder was Lindsey to live in the Queenstown Apartments, hardly foreseeable or that it was not "highly extraordinary in "rendered him unable to care for himself." Lindsey retrospect," Parker v. Dist. of Columbia, 271 U.S. App. sought out the program precisely in order to enjoy the D.C. 15, 850 F.2d 708, 714 (D.C. Cir. 1988). freedom it offered --to go to school, to get a job, and to live independently --and Ms. Bradford recommended he 1. The District's Duty be placed in the program because he was not in need of a more restrictive regimen. It is also worth recalling that In ordinary circumstances "the Constitution does not when Lindsey began the program he was well-nigh an guarantee due care on the part of state officials; liability adult and had already lived on his own for two years; for negligently inflicted harm is categorically beneath the while living at the Queenstown Apartments, from which threshold of constitutional due process." Lewis, 523 U.S. he would be able to come and go for school and work, at 849. "When the State takes a person into its custody Lindsey was not a helpless ward of the District. To be and holds him there against his will," however, the sure, Lindsey was not free to quit the program, as the substantive [*106] [**106] component of the due Court repeatedly points out, Court Op. at 5, 11, and 15, process clause "imposes upon it a corresponding duty to [***56] but that establishes only that he was in custody assume some responsibility for his safety and general -- not that he was so restrained that the District had a duty well-being." DeShaney v. Winnebago County Dep't of to guard him against any and all harms, including his Social Servs., 489 U.S. 189, 199-200, 103 L. Ed. 2d 249, improbable targeted murder. See DeShaney, 489 U.S. at 109 S. Ct. 998 (1989). [***54] More specifically, "when 201 ("While the State may have been aware of the the State ...so restrains an individual's liberty that it dangers [the youth] faced in the free world, it played no renders him unable to care for himself, and at the same part in their creation, nor did it do anything to render him time fails to provide for his basic human needs ... it more vulnerable to them"); Palsgraf v. Long Island R.R. transgresses the substantive limits on state action" set by Co., 248 N.Y. 339, 162 N.E. 99, 100 (N.Y. 1928) ("The the Constitution. Id. at 200. risk reasonably to be perceived defines the duty to be obeyed"). I agree with the Court that, because he was required to live at the Queenstown Apartments, Lindsey was to 2. Deliberate Indifference that extent in the "custody" of the District, and the District therefore owed him a "corresponding duty." Nor did Smith prove the District exhibited such Because there are degrees of restraint within the concept "deliberate indifference" to Lindsey's welfare as to of custody, the duty imposed by the Constitution is also "shock the contemporary conscience." Fraternal Order of one of degree: If the restraint of a person's liberty is tight, Police Dep't of Corrs. Labor Comm. v. Williams, 363 then the duty of the state to provide for his well-being is U.S. App. D.C. 1, 375 F.3d 1141, 1145 (D.C. Cir. 2004).* correspondingly elevated, cf. Taylor By and Through Smith argues the District showed [*107] [**107] such Walker v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987) indifference because it "failed to develop and issue any (en banc) ("foster children [are] under the umbrella of standards ... to govern the [ESA program]." That, protection afforded by the fourteenth amendment" however, is barely relevant to whether the District because they are "isolated" and "helpless"; without breached its duty to Lindsey. A standard may facilitate "investigation, supervision, and constant contact ... a consistent decision-making, but it [***57] does not child placed in a foster home is at the mercy of the foster follow that ad hoc decisions are necessarily reckless. The parents"), whereas if the restraint is loose, then [***55] truly relevant inquiry is whether the District made any ad the duty is correspondingly lower, cf. D.R. v. hoc decision that exhibited deliberate indifference to Middlebucks Area Vocational Technical Sch., 972 F.2d Lindsey's well-being. 1364, 1373 (3d Cir. 1992) (en banc) ("compulsory attendance laws [do] not liken school children to * The Supreme Court has held that "in a due process challenge to executive action, the Page 15 413 F.3d 86, *107; 367 U.S. App. D.C. 86, **107; 2005 U.S. App. LEXIS 13288, ***57

threshold question is whether the behavior of the that matter the Court, truly mean to suggest that any governmental officer ... may fairly be said to parent who housed his or her family in that complex shock the contemporary conscience." Lewis, 523 exhibited deliberate indifference to their well-being? That U.S. at 847 n.8. "Whether the point of the seems the unavoidable implication of the plaintiff's conscience shocking is reached when injuries are argument. produced with culpability ... following from something more than negligence but less than Smith also says the complex was "inundated" with intentional conduct ... is a matter for closer calls." violent crime around the time of Lindsey's murder, which Id. at 849. Because not every instance of the District would have known had it monitored the ESA deliberate indifference may fairly be "condemned program more closely. As a foundation for this assertion as conscience shocking," id. at 850, the question Smith points to all of seven robberies and assaults here is whether the District exhibited deliberate committed at the complex during the seven months indifference to Lindsey's well-being and if so, October 1998 through April 1999, including one robbery whether that indifference is shocking to the of an ESA participant. The record makes clear, however, "contemporary conscience." ESA did not turn a blind eye to the crime against the ESA participant; [***60] rather, it assisted him in reporting [***58] Smith's allegations regarding the District's the crime to the police despite some evidence suggesting selection of ESA as a provider are also largely irrelevant. it was staged. The remaining six crimes, spanning a There is record evidence ESA was not experienced in period [*108] [**108] of seven months, could hardly operating an independent living program but Smith must have put either ESA or the District upon notice of any still show ESA took or failed to take some action that heightened need to guard Lindsey against violent crime. exhibited deliberate indifference to the enrollees' safety, After all, the jury found the Queenstown Apartments was as it is entirely possible ESA, although inexperienced, ran not liable for Lindsey's murder, presumably because the program adequately. Smith's contention that ESA Queenstown residents enjoyed a reasonable level of failed to enforce Lindsey's curfew does not suffice security.* because the record establishes ESA docked Lindsey's allowance in an attempt to deter curfew infractions. * For perspective, note that if we make the conservative assumption that only 2,000 people The only relevant decisions identified by the Court inhabited the 1,067 units at the apartment are the District's approval of ESA's selection of the complex, then Smith's data show the probability Queenstown Apartments to house program enrollees and of a Queenstown resident being the victim of a its failure to monitor crime at the Queenstown violent crime over a one-year period was .6%, or Apartments. As for the site selection process, the one in 166. Meanwhile, the average resident of Queenstown Apartment complex was chosen because it the District faced almost three times that risk was a "blue collar community" in a "pretty decent (1.6%), or one in 62. According to the D.C. neighborhood" that was "family-oriented," and near the Metropolitan Police Department, in 1999 amenities necessary for independent living. Indeed, an residents of the District were the victims of 8,449 ESA director had lived within walking distance of the violent crimes --homicides, forcible rapes, Queenstown Apartments for five years. Smith's key robberies, and aggravated assaults, see Citywide witness testified only that the [***59] sites election Crime Statistics, Annual Totals, 1993-2004 process should have been more "thorough." But surely available at deliberate indifference, like ambition, must be made of http://mpdc.dc.gov/mpdc/cwp/view,a,1239, q, sterner stuff. 547256,mpdcNav_GID, 1556.asp, at a time when, according to the D.C. Office of Planning, the In any event, it is silly to suggest the District showed District had a population of 519,000. Population deliberate indifference to Lindsey's safety by approving and Rates of Selected Components of Change, Lindsey's placement at the Queenstown Apartments, April 1990-July 1999 available at which has 1,067 units, presumably rented to householders http://www.dclibrary.org/sdc/pop-comp-ch who --apart from the ESA participants in eight or nine ange-rate.html. Accordingly, a District resident apartments -- had chosen to live there. Does Smith, or for faced a 1.6% probability (8,449 / 519,000 = Page 16 413 F.3d 86, *108; 367 U.S. App. D.C. 86, **108; 2005 U.S. App. LEXIS 13288, ***60

0.016) of being the victim of a violent crime that 481, 100 S. Ct. 553 (1980) [***63] (state did not violate year. due process clause when parole [*109] [**109] board released prisoner who five months later committed [***61] In the final analysis, regardless whether the murder because that was "too remote a consequence of selection of a site could have been more "thorough" or the parole officers' action"). the District could have monitored crime at the complex more closely, it is obvious the District's actions did not B. The Negligence Claim amount to an "executive abuse of power ... which shocks the conscience." Williams, 375 F.3d at 1145. Smith's claim under D.C. law fails for one of the same reasons her claim under the Constitution fails. "The 3. Moving Force elements of a common law action for negligence are (1) a duty of care owed by the defendant to the plaintiff, (2) a Even if the District had breached its duty to care for breach of that duty by the defendant, and (3) damage to Lindsey, Smith's claim would still fail because any such the plaintiff, proximately caused by the breach of duty." breach was not the "moving force" behind Lindsey's Powell By and Through Ricks v. Dist. of Columbia, 634 murder. As the Court notes, Court Op. at 26, we have A.2d 403, 406 (D.C. 1993). With regard to the duty the equated that requirement with proximate causation, District owed Lindsey, it is settled D.C. law that "a which means "the particular [wrong] was 'foreseeable', defendant may be liable for harm caused by the criminal that is, likely enough to follow from the defendant's act of another only if the crime was particularly [breach] to justify holding him responsible." Doe v. foreseeable." Workman v. United Methodist Comm., 355 Dominion Bank of Wash., N.A., 295 U.S. App. D.C. 385, U.S. App. D.C. 131, 320 F.3d 259, 262 (D.C. 2003) 963 F.2d 1552, 1563 (D.C. Cir. 1992) (Williams, J., (emphasis added). This is a "heightened" standard of concurring). Whether a particular harm is foreseeable foreseeability, which ordinarily may not be satisfied with ordinarily turns upon the level of generality at which the "generic information such as crime rates." Id. Moreover, harm is defined, but Smith cannot sustain her burden of because of the "sliding scale" reflected in D. [***64] C. proof even at a high level of generality because there is case law, the District owed Lindsey only a basic duty of no evidence in the record regarding the cause of care -- for the same reason it owed him only a basic duty Lindsey's murder: [***62] We do not know who killed of care under the Constitution Smith must adduce him or why. It is therefore fanciful to maintain his murder "specific evidence of foreseeability." Id. at 264. was a foreseeable result of the District's failure to enact standards for independent living programs, or to monitor As we have seen, Smith has not satisfied the ordinary crime levels at the Queenstown Apartment complex more requirement of foreseeability necessary to establish closely, or of ESA's failure more strictly to enforce proximate causation, let alone the heightened standard of Lindsey's 7:00 p.m. curfew. Indeed, the little we do know foreseeability a plaintiff must meet under D.C. law in about Lindsey's murder suggests that no reasonable order to hold one party responsible in damages for the program standards and not even perfect curfew criminal act of another. The District was not on notice observance would have made his untimely death any less that Lindsey was generally in danger, and Smith points to likely. Nor does it seem Lindsey's death by an assassin no specific evidence that he was in peril of being the whom he or his roommate admitted into their apartment victim of a targeted murder. Accordingly, Smith's at 11:00 p.m. could have been prevented by any negligence claim against the District should fail. reasonable security measure. III. Conclusion Taking a wider view, we see also that Lindsey had no significant criminal history, had no known Even under the deferential standard we accord a jury involvement with any dangerous activity, and seemed to verdict, it should be apparent that Smith has proven be benefitting from the ESA program. Not even with neither her constitutional claim for due process nor her 20-20 hindsight can one connect any nonfeasance on the common law claim for negligence. That her grandson part of the District to Lindsey's becoming the victim of a was murdered is a tragedy. Why it happened is a mystery. targeted murder --and of course, the District is to be held But this much is certain: The District was not deliberately to a standard of reasonable foresight, not of hindsight. Cf. indifferent to Lindsey's well-being, nor could it have Martinez v. California, 444 U.S. 277, 285, 62 L. Ed. 2d foreseen he would be executed [***65] by an assassin. I Page 17 413 F.3d 86, *109; 367 U.S. App. D.C. 86, **109; 2005 U.S. App. LEXIS 13288, ***65 therefore respectfully dissent. A PLACE OF RESPECT:

A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

AUTHOR:

Jody Marksamer National Center for Lesbian Rights

contributing Writers:

Dean Spade Sylvia Rivera Law Project

Gabriel Arkles Sylvia Rivera Law Project

SPRING 2011 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

THE NATional center for lesbian rights

The National Center for Lesbian Rights (NCLR) is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.

The Youth Project at the National Center for Lesbian Rights has been advocating for LGBT youth in schools, foster care, juvenile justice settings, and the mental health system since 1993. The Project provides direct, free legal information to youth, legal advocates, and activists through a toll-free line; advocates for policies that protect and support LGBT youth in these different arenas; and litigates cases that are creating new legal protections for youth in schools, foster care, juvenile justice, and other settings.

SYLVIA RIVERA LAW PROJECT

The Sylvia Rivera Law Project (SRLP) works to guarantee that all people are free to self-determine their gender identity and expression, regardless of income or race, and without facing harassment, discrimination, or violence. SRLP is a collective organization founded on the understanding that gender self-determination is inextricably intertwined with racial, social and economic justice. Therefore, we seek to increase the political voice and visibility of low-income people and people of color who are transgender, intersex, or gender non-conforming. SRLP works to improve access to respectful and affirming social, health, and legal services for our communities.

© 2011 NCLR and SRLP This document is intended to provide general information regarding law and policy. Because laws and legal procedures are subject to frequent change and differing interpretations, NCLR and SRLP cannot ensure the information in this document is current, nor can NCLR and SRLP be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency. 2 A PLACE OF RESPECT A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER Non-conforming YOUTH

TABLE OF CONTENTS

Executive Summary ���������������������������������������������������������������������������������������������������2

Acknowledgements ������������������������������������������������������������������������������������������������� 4

Introduction �����������������������������������������������������������������������������������������������������������5

Chapter ONE: Understanding Transgender and GendeR Non-conforming Youth ������ 9

Chapter TWO: The Challenges of Living with a Stigmatized Identity ������������������������ 17

Chapter THREE: Group Care Facilities’ Legal Responsibility to Treat Transgender and Gender Non-conforming Youth Fairly and Keep Them Safe �������������������������������� 23

Chapter FOUR: Best Practices for Workingwith Transgender and Gender Non-conforming Youth ������������������������������������������������������������������������31

Chapter FIVE: Best Practices for Administrators for Changing Culture, Adopting

Practice Guidelines and Policies, and Training and Evaluating Staff ����������������������49

APPENDICES: ������������������������������������������������������������������������������������������������������������ 55

Appendix A: Common Terms and Definitions �������������������������������������������������������� 56

Appendix B: List of Resources ��������������������������������������������������������������������������� 59

Appendix C: Model Policy & Practice Guidelines for Providing Non-Discriminatory Services to LGBT and Gender Non-conforming

Youth in Group Care Facilities ����������������������������������������������������������������������������65

1 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Executive Summary

Transgender and gender non-conforming youth often face serious physical, emotional, and sexual abuse in group homes, detention centers, and correctional institutions. Because staff members are often unsure of how to provide respectful and supportive services to these youth, they may unwittingly subject them to situations that are discriminatory and harmful. This guide offers group care facilities information and tools to provide transgender and gender non-conforming young people with appropriate and informed care. It also describes laws requiring facilities to protect these youth from harassment and abuse, to provide them with appropriate medical care, and to treat them fairly. This publication helps staff understand the experiences and concerns of transgender and gender non-conforming youth, and explains how staff members can respond to these youths’ safety, programmatic, and health care needs in an informed and effective manner that meets facilities’ legal obligations. Finally, it provides administrators with a model policy and comprehensive practice guidelines to help keep transgender and gender non-conforming youth safe, prevent programmatic disruptions, and promote respectful and supportive environments for all youth.

Problems and Solutions

This guide provides solutions to address nine common problems transgender and gender non- conforming youth face in group care facilities. These solutions are practical, workable approaches to improve the delivery of services to transgender and gender non-conforming youth and meet facilities’ legal obligations to ensure safety for all youth.

Policy, Training, and Accountability

The guide concludes with recommendations for facility and agency administrators on ways to provide leadership on the important issue of providing respectful and supportive services for transgender and gender non-conforming youth. It recommends that administrators: (1) develop and implement non-discrimination policies and comprehensive practice guidelines that clearly state facility rules and expectations; (2) ensure staff receive appropriate and sufficient training on working with transgender and gender non-conforming youth; and (3) hold staff accountable for following established policies and practices through a staff evaluation process.

Using the information and approaches described in this guide, group care facilities will gain the understanding and skills necessary to implement practices that provide emotional and physical safety for transgender and gender non-conforming youth and ensure that these youth are treated fairly and respectfully as required by law.

2 PROBLEM Solution

1 Lack of Respect and Acknowledge, respect, and support transgender and gender Support for Youths’ non-conforming youth by referring to them by their preferred Gender Identity and name and pronoun and allowing them to express their gender Expression identity through clothing, hairstyles, and mannerisms.

2 Gender-Inappropriate Provide individualized placement and classification Placements assessments for transgender youth that recognize the youth’s gender identity and ensure emotional and physical safety.

3 Verbal Harassment, Appropriately respond to harassment, provide diversity Threats, Violence, and trainings for youth in the facility, and institute practices that Isolation create a supportive and respectful environment for transgender and gender non-conforming youth.

4 Sexualizing Do not sexualize gender non-conforming behaviors or attempt Non-Conforming to change a youth’s gender identity or expression as part of Gender Identity or treatment. Expression

5 Inappropriate Labeling Do not label or treat transgender and gender non-conforming as Sexual Predators youth as “sexually abusive” merely because of their gender identity or expression.

6 Lack of Privacy and Ensure the privacy, safety, and dignity of transgender and Safety in Bathrooms, gender non-conforming youth in bathrooms, showers, when Showers, and During changing clothes, and during physical searches. Searches

7 Unmet Health Care Provide transgender and gender non-conforming youth with Needs access to health care providers who are knowledgeable about the needs of transgender youth and ensure these youth receive recommended medically necessary treatments, including transgender-related care.

8 Barriers to Safe and Work with school administration to ensure that transgender Non-Discriminatory and gender non-conforming youth are safe and supported at School Environments off-site schools.

9 Inability to Access Inform transgender and gender non-conforming youth about Supportive Community supportive local and national resources and programs and Services assist youth in accessing these services.

3 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Acknowledgements

This guide is dedicated to Kira Bellah, a beautiful, brave, generous, smart, and passionate young woman whose life was tragically cut short at the age of 25 due to complications related to diabetes. While in foster care, Kira spent many years living in boys’ group homes where she faced resistance from staff to her being her true self. Her experience in care motivated her to join the California Youth Connection in 1999, where, for the next ten years, she advocated for foster care reform. Much of Kira’s advocacy work focused on lesbian, gay, bisexual, and transgender youth. From 2004 to 2006, she co-facilitated numerous trainings as a youth trainer with a project that worked to improve care and outcomes for LGBT youth in California’s foster care. She also created a digital story about her experience as a transgender youth in foster care and her ideas for change. Kira’s story is part of a compilation of digital stories called “Breaking the Silence,” that has been used to train thousands of system workers throughout the country.

This guide would not be possible without the assistance of many former and current staff members and interns from the National Center for Lesbian Rights (NCLR) and the Sylvia Rivera Law Project (SRLP), including: Dean Spade, of SRLP, who was a key partner in the initial development of this guide and contributed greatly to the writing during the early stages of the project; Joshua Delgado, Cathy Sakimura, Cara Sherman, Ming Wong, Melanie Rowen, and Shannon Minter of NCLR, and Elana Redfield and Gabriel Arkles, both of SRLP, who provided careful review and feedback at critical points throughout the writing process; Liz Seaton, of NCLR, who served as the editor of this publication and Meghan Hennessey, also of NCLR, who interviewed youth across the country and provided them a comfortable space to share their stories; and the lawyers, health care providers, and other advocates who shared what they had learned working with transgender and gender non-conforming youth in order to help educate others. Most importantly, our deepest gratitude goes out to all of the transgender and gender non-conforming youth who generously shared their experiences and recommendations for inclusion in this guide. Their insights, courage, and honesty were invaluable.

Generous support for this guide was provided in part by: Anonymous, Arcus Foundation, Astraea Lesbian Foundation for Justice, Columbia Foundation, Evelyn & Walter Haas, Jr. Fund, Ford Foundation, Gill Foundation, Global Fund for Women, Johnson Family Foundation, Kicking Assets Fund of the Tides Foundation, Levi Strauss Foundation, New Prospect Foundation, Open Society Institute, Overbrook Foundation, Queer Youth Fund, Rainbow Endowment, and Underdog Fund of the Tides Foundation.

4 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

INTRODUCTION

5 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Introduction

When I was in a group home, I lost points because I didn’t have long hair or wear dresses. Even my mannerisms got me into trouble. The staff would tell me I wasn’t ‘talking like a lady’ or that I was being ‘too gentlemanly’ when I opened doors for girls. They wouldn’t let me be me because to them, I was outside of the gender boundaries they were comfortable with.1

—Captain, A gender non-conforming youth

At any given time, there are more than 100,000 youth living in group homes, or confined to either detention facilities or other secure facilities across the United States. Each of these young people arrives at a group care facility with a unique set of life experiences and needs. Understanding and supporting these youth, keeping them safe, and meeting their individual needs can be challenging. This guide is designed to help group care facilities better understand, support, and meet the needs of transgender and gender non-conforming youth.

A Note on Terminology

A transgender youth has a gender identity (his or her internal, deeply felt sense of being male or female) that is different from his or her assigned birth sex. For example, a transgender girl is a girl whose assigned birth sex was male but who understands herself to be female. A transgender boy is a boy whose assigned birth sex was female but who understands himself to be male. Gender non- conforming youth express their gender in ways that do not conform with gender stereotypes.

Why Read a Guide for Serving Transgender and Gender Non-Conforming Youth in Group Care Facilities?

Many group care facilities currently serving transgender and gender non-conforming youth are unaware of best practices for this population. Emerging research indicates that substantial numbers of transgender and gender non-conforming youth are in state custody.3 In the first study to examine this issue, Ceres Policy Research found that substantial numbers—as many as 13 percent— of youth in detention facilities are lesbian, gay, bisexual, transgender, questioning (LGBTQ), or are gender non-conforming.4 Some facility staff acknowledge, respect, and support the transgender and gender non-conforming youth in their care, but many others have misconceptions about transgender identity. Unsure how to respond to these youth, they may inadvertently subject them to discriminatory and sometimes harmful situations, even if they have good intentions. The result is that transgender and gender non-conforming youth in group care facilities are regularly denied fair and respectful treatment and often face serious emotional, physical, and sexual abuse.

Group care facilities have the same responsibility to ensure safety and appropriate treatment for transgender and gender non-conforming youth as they do for other youth. Inappropriate 6 treatment of transgender youth can expose facilities and staff to legal liability. Transgender youth who have been prohibited from dressing in gender-appropriate clothing, denied health care, placed in isolation, forced to shower with youth of a different gender identity, or left unprotected from physical and sexual abuse have brought successful legal cases against group care facility administrators and staff.5 In these cases, courts found facilities in violation of these youths’ rights and some facilities were required to pay significant monetary settlements in addition to agreeing to develop appropriate policies and training for staff members. Facilities can help avoid this liability if they adopt and implement appropriate policy and practice guidelines.

Implementing best practices for serving transgender and gender non-conforming youth in group care facilities is easy. As more youth are coming out as transgender and gender non-conforming, all group care facilities need to know how to work effectively with them. The good news is that, with a few changes in policy and daily practice, facilities can meet their obligations and increase safety and respect for transgender and gender non-conforming youth. These changes will likely benefit all youth in the facility, not just transgender and gender non-conforming youth.

Using this Guide to Better Support and Protect Transgender and Gender Non-Conforming Youth

I came in to the detention center dressed as I always did, and they ripped the weave out of my hair, broke off my nails, wiped my makeup off, stripped me of my undergarments, and made me wear male undergarments and clothes.2

—MARIAH, A TRANSGENDER YOUNG WOMAN

This guide is specifically designed to assist group care facility administration and staff, juvenile justice and child welfare agencies, and anyone else invested in making group care facilities safer and more responsive to the needs of transgender and gender non-conforming youth. This guide uses the term “group care facility” to refer to homes, facilities, or institutions that house youth in state custody and receive public funds. This term also includes non-secure facilities such as group homes, temporary shelters, camps, or ranches; and locked facilities, such as detention facilities, long-term correctional facilities, treatment facilities, or psychiatric institutions.

This guide is divided into five chapters. Chapter One addresses common misconceptions about transgender people and explores some specific health care needs of transgender youth. Chapter Two examines the stigma, rejection, and harassment that many transgender and gender non- conforming youth face and how this affects their development and behavior. Chapter Three highlights the legal rights of transgender and gender non-conforming youth in group care facilities and the legal responsibility of facilities.

The last two chapters provide recommendations to help group care facilities develop sound practices for serving transgender and gender non-conforming youth and meet their legal 7 responsibilities. These recommendations are based on social science and legal research as well as interviews with transgender and gender non-conforming youth who have lived in group care facilities. Chapter Four uses a practical problem-solving approach: identifying nine common problems transgender and gender non-conforming youth face in group care facilities, and outlining strategies and best practices to prevent or address each of these problems. Chapter Five provides recommendations for facility administrators related to leadership development, policy and practice guidelines, and staff trainings and evaluations.

In one of my group homes, they told me that I couldn’t be transgender. They wouldn’t let me carry a purse or wear girl clothes because they said the other kids would be embarrassed. So I used to take my girl clothes with me and change outside as soon as I got off the property.6

—MIMI, A TRANSGENDER YOUNG WOMAN

Endnotes

1 NCLR, personal interview with transgender youth (May 24, 2006) (on file with author).

2 NCLR, personal interview with transgender youth (Feb. 28, 2003) (on file with author).

3 Angela Irvine, Ceres Policy Research, Youth Hype Drug and Alcohol Use Survey: Summary of Findings Related to LGBQ, Latino, and Foster Youth in Santa Cruz, CA (2008) (on file with author); Angela Irvine, Ceres Policy Research, The Inappropriate Use of Secure Detention for Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Youth (2009), presented at the Columbia University Gender on the Frontiers Symposium (April 10, 2009) (available on file with authors) [hereinafter Inappropriate Use of Secure Detention]. Results of the 2009 Ceres Policy Research study will appear in 19 Colum. J. Gender & L. (forthcoming 2011).

4 Inappropriate Use of Secure Detention, supra note 3.

5 See e.g. R.G. v. Koller, 415 F. Supp.2d 1129, 1157 (D. Haw. 2006); Rodriguez v. Johnson, No. 06CV00214 (S.D.N.Y. filed Jan. 11, 2006); Doe v. Bell, 754 N.Y.S.2d 846, 853-56 (N.Y. Sup. Ct. 2003). For further discussion of these cases, see Chapter 3.

6 NCLR, personal interview with transgender youth (May 8, 2006) (on file with author). 8 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

CHAPTER ONE: UNDERSTANDING TRANSGENDER AND GENDER Non-conforming YOUTH

9 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Chapter ONE: Understanding Transgender and GendeR Non-conforming Youth

To work effectively with transgender and gender non-conforming youth, group care facility staff must rely on sound research and medical knowledge—not misinformation or bias—in order to gain an accurate understanding of these youth. This chapter addresses common misconceptions about transgender people and explores some of the specific health care needs of transgender youth.

Understanding Gender Identity and Gender Expression

Gender identity or core gender refers to a person’s internal, deeply felt sense of being male or female—one’s psychological identification as masculine or feminine. There is consensus among health professions that a person’s gender identity is such a deep-seated, inherent aspect of human identity that efforts to change a person’s core gender identity are ineffective and likely to cause significant harm.1 Every person has a gender identity that develops in early childhood and is usually firmly established by age three or four.2

For most people, their gender identity corresponds with their assigned birth sex and physical body characteristics. For transgender people, this is not the case. Accordingly, a transgender girl is a young person whose assigned birth sex was male but who understands herself to be female and desires to live her life as a girl, and later as a woman. A transgender boy is a young person whose assigned birth sex was female but who understands himself to be male and desires to live his life as a boy, and later as a man. Transgender people may begin to understand or publicly express their core gender at different points during their lives—as children or youth, or when they are middle- aged, or even elderly. Some children self-identify as transgender as young as three or four.3 Many transgender people have medical treatments to change their physical bodies in order to live more easily in the gender that matches their core self. The term transition is often used to describe both the process and time period when a transgender person starts publicly living in line with his or her core gender.

Although gender identity is established at a young age, this does not mean that every person’s gender identity is fixed as exclusively male or exclusively female because some people have a gender identity that is fluid. In addition, there are many people whosegender expression—their gender-related appearance, characteristics, and behaviors—crosses genders or has aspects of both masculinity and femininity. The term gender non-conforming can be used to describe people whose gender expression falls outside of stereotypical assumptions about how men and women are “supposed” to appear or behave.

Not All Gender Non-conforming People Are Gay, Lesbian, or Bisexual

Some people may assume that a gender non-conforming person must be gay, lesbian, or bisexual. That assumption is often wrong. The fact that a person is gender non-conforming does not tell us anything about that person’s sexual orientation. There are heterosexual people who are gender 10 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth non-conforming, and there are gay, lesbian, and bisexual people who are gender conforming. But regardless of their sexual orientation, people who are visibly gender non-conforming often experience harassment and are often prevented from expressing their core gender.

Being Transgender is Not the Same as Being Gay or Lesbian

Sexual orientation and gender identity are not the same. A person’s gender identity refers to that person’s core gender. In contrast, sexual orientation refers to a person’s emotional, romantic, and sexual attraction to people of the same sex (lesbian and gay people), people of a different sex (heterosexual people), or both (bisexual people).4 People who are transgender, like all people, have both a gender identity and a sexual orientation. There are transgender people who identify as lesbian, gay, or bisexual, and there are transgender people who identify as heterosexual.

Additional terms and definitions can be found in Appendix A.

Gender Non-conforming Behavior Does Not Reflect Underlying Pathology and Transgender and Gender Non-conforming Youth Are Not Any More Likely to Be Sexually Predatory Than Other Youth

There is no inherent connection between gender non-conformity and mental illness. Numerous studies over the last twenty years have found that “the … incidence of reported psychiatric problems [for transgender people undergoing treatment] is similar to that seen in the general population.”5 Similarly, there is no evidence that transgender individuals have any underlying psychopathology that causes or influences their transgender identity. While some transgender people experience depression and anxiety, these issues are often alleviated once a transgender person is able to live and be accepted in their core gender.

Research also confirms that there is no inherent connection between an individual’s sexual orientation or gender non-conformity and the likelihood that he or she will behave in sexually predatory ways. Studies using a variety of psychological measures indicate that people who are not heterosexual are no more likely “to possess any psychological characteristics that would make them less capable of controlling their sexual urges, refraining from the abuse of power, obeying rules and laws, interacting effectively with others, or exercising good judgment in handling authority.”6

Safe and Effective Medical Treatments Can Help Transgender People Live in Line with Their Core Gender

Many transgender young people experience high levels of distress because their body does not match their core gender, resulting in depression, anxiety, and low self-esteem.7 For some young people, this level of distress may be so intense that they meet the diagnostic criteria for a treatable medical condition called Gender Identity Disorder or GID.8

The World Professional Association for Transgender Health (WPATH) is a professional association of health care professionals who specialize in transgender health care.9 For several decades,

11 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

WPATH has issued internationally accepted protocols for the diagnosis and treatment of youth and adults with GID called “The Standards of Care for the Treatment of Gender Identity Disorders” (“WPATH Standards of Care”).10 Treatment for GID is focused on supporting a person’s understanding of his or her gender and includes a combination of individual and family counseling and medical treatments, such as hormone and surgeries that change a person’s body to match his or her core gender identification.11 These treatments are sometimes referred to as sex-reassignment or transition. Transition is medically necessary for many transgender people and leads to improved mental health, alleviated feelings of self-hatred and shame, success in employment and education, and reduced risk of drug or alcohol abuse and suicide attempts.12

What Medical Professionals Have to Say About Transgender Health Care

Medical experts agree that transition-related treatments for transgender youth and adults are safe, effective, and, for many, medically necessary.13 Both the American Medical Association (AMA)14 and the American Psychological Association (APA)15 have adopted public statements recognizing the necessity of transition-related medical care and calling for improved access to these treatments. Both groups also reject the misconception that these treatments are “cosmetic” or “experimental,” and recognize transition-related medical care as effective, therapeutic, and a “medical necessity … for appropriately evaluated individuals.”16

In addition, the APA recognizes the necessity of providing transition-related care for transgender people in institutional settings and calls on institutions–including foster care and juvenile justice facilities–to provide such care.17 Similarly, the National Commission on Correctional Health Care (NCCHC) has adopted a position statement that provides guidance to health professionals in juvenile justice facilities, prisons, and jails about their responsibility to ensure the physical and mental health and well-being of transgender people in their custody.18 According to NCCHC the proper approach to transgender medical management is to follow the WPATH Standards of Care.19

Transgender Youth Are Not “Acting Out” or Trying to Get Attention When They Express Their Core Gender

Group care facility staff should understand that when transgender youth express their gender identities, they are expressing a fundamental aspect of their identity, not trying to break rules or cause problems. Medical research confirms the importance of allowing transgender youth to express their core gender. According to the WPATH Standards of Care and experts in the field, professionals should support transgender youth in expressing their gender through wearing clothing and using names and pronouns associated with the youth’s core gender identity.20 In 2008, the American Psychological Association adopted a policy statement supporting, among other 12 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth things, “efforts to provide safe and secure…foster care environments and juvenile justice programs that promote an understanding and acceptance of self and in which all youths, including youth of all gender identities, may be free from discrimination, harassment, violence, and abuse.”21

Meeting the Health Care Needs of Transgender Youth

Therapeutic interventions and daily interactions with transgender youth should focus on reducing the distress these youth experience due to the difference between their gender identity and their bodies, as well as the trauma that many of these youth experience due to societal discrimination and violence based on their gender expression. Some transgender youth with GID may also need medical treatment, such as supportive counseling and hormone therapy, to allow them to express their gender identity and to help reduce their feelings of anxiety and discomfort about their bodies.

Transgender youth do not need to wait until age eighteen to begin to medically transition

For transgender youth, the start of puberty can be very traumatic. Many youth should begin hormone treatment before they complete puberty in order to stop their bodies from irreversibly changing in ways that further conflict with their internal core gender. According to the WPATH Standards of Care, once a transgender young person approaches puberty, his or her medical care providers should assess whether the young person is an appropriate candidate to begin medical treatment that will enable him or her to delay the onset of puberty, and/or physically transition through the use of prescription hormone treatments.22 Doctors and mental health professionals who are experts in gender development agree that early hormonal intervention is very important for youth who have been diagnosed with GID because it reduces their risk of suicide and social isolation, lessens their need for future medical interventions, and greatly improves their overall mental health.23

As people with gender identity disorder are recognized and diagnosed at younger ages than ever before, this presents a crucial opportunity for early medical intervention during puberty. The chance to prevent the development of gender-inappropriate secondary sexual characteristics that create such significant obstacles to future gender reassignment is profoundly important. Such early treatment provides transgender patients greater psychological benefits, greater protection from current and future interpersonal violence, and often minimizes the need for future surgeries to correct the damage done by a gender-inappropriate puberty.24

—Dr. Nick Gorton, Primary Care Provider, Lyon-Martin Health Services, San Francisco, CA

13 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Transgender youth who do not receive appropriate treatment are at risk of serious negative health consequences

Medical experts agree that preventing transgender youth from expressing their gender identity or punishing them for doing so increases the distress they experience; undermines their emotional stability; and interferes with their care, treatment, and rehabilitation.25 When a transgender youth does not have access to knowledgeable medical professionals for support and treatment, the youth may attempt to treat themselves by buying and using hormones of unknown quality from an underground market. Youth who use hormones without medical supervision are at risk of developing serious medical conditions, including contracting HIV from using dirty needles for injection, and other life threatening complications from inappropriate dosages or poor quality hormones.26 Many youth who turn to the street to get hormones engage in criminalized behavior, such as prostitution, in exchange for the hormones or in order to pay for them.27 In addition to these serious negative health and social consequences, transgender youth who do not receive appropriate treatment for GID are at high risk for clinical depression, suicide attempts, and problems with relationships, school, and work.28

By examining research and medical understandings about transgender people and exploring their specific health care needs, group care facility staff will improve their understanding of transgender identity and be better prepared to meet the needs of the transgender and gender non-conforming youth in their care.

What Does It Mean to Have an Intersex Condition?

An estimated one in 2,000 babies is born with a sexual or reproductive anatomy and/ or chromosome pattern that does not seem to fit typical definitions of male or female, and the medical conditions causing these variations are sometimes grouped by doctors under the terms “intersex” or Differences of Sex Development (“DSD”).29 Because some youth with gender non-conforming identities or appearances may have an intersex condition, staff also need to understand these conditions and the needs of these youth. Some young people who have an intersex condition may experience harassment and/ or mistreatment because of their gender expression. Group care facilities should take steps to ensure that these youth are safe. In addition to ensuring that youth who have an intersex condition are not harassed based on their gender differences, facilities also need to meet these youths’ specific medical and privacy needs. This includes providing access to doctors and mental health providers who are familiar with the young person’s specific intersex condition as well as ensuring that the youth has sufficient privacy for changing clothing, showering, and using restrooms.30

14 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

Endnotes

1 Gianna E. Israel & Donald E. Tarver II, Transgender Care: Recommended Guidelines, Practical Information, and Personal Accounts 134-5 (Temple University Press 1997); Gerald P. Mallon, Practice with Transgendered Children, in Social Services with Transgendered Youth 49, 55-6 (Gerald P. Mallon, ed., 1999).

2 Gerald P. Mallon & Teresa DeCrescenzo, Transgender Children and Youth: A Child Welfare Practice Perspective, 85 Child Welfare 215, 218 (2006); Shannan Wilber, Caitlin Ryan, & Jody Marksamer, Child Welfare League of America Best Practice Guidelines: Serving LGBT Youth in Out-of-Home Care 2 (CWLA 2006).

3 Stephanie Brill & Rachel Pepper, The Transgender Child: A Handbook for Families and Professionals 16-17 (Cleis Press Inc. 2008).

4 American Psychological Association, Answers to Your Questions about Transgender Individuals and Gender Identity 1-2 (2006), available at http://www.APA.org/Topics/Gender3.pdf.

5 Collier M. Cole, Michael O’Boyle, Lee E. Emory, & Walter J. Meyer III, Comorbidity of Gender Dysphoria and other Major Psychiatric Diagnoses, 26 Archives of Sexual Behavior 13, 21 (1997) (citing three studies with similar findings completed over the span of 13 years); George R. Brown, Transvestism and Gender Identity Disorder in Adults, in Treatments of Psychiatric Disorders, Third Edition, 2034-35 (Glen O. Gabbard, M.D. ed., 2007).

6 Gregory M. Herek, Facts About Homosexuality and Child Molestation, http://Psychology.UCDavis.edu/Rainbow/ html/Facts_Molestation.html (last visited June 12, 2009); Linda Goldman, Coming Out, Coming In: Nurturing the Well-Being and Inclusion of Gay Youth in Mainstream Society 42-3 (Routledge 2008); Nathaniel McConaghy, Paedophelia: A Review of the Evidence, 32 Austl. & N.Z. J. Psychiatry 252, 259-60 (1998); Carol Jenny et al., Are Children at Risk for Sexual Abuse by Homosexuals?, 94 Pediatrics 41, 43-4 (1994).

7 Israel & Tarver, supra note 1, at 134-5; American Medical Association, “Resolution 122: Removing Financial Barriers to Care for Transgender Patients” (2008) [hereinafter AMA Resolution 122].

8 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 576, 581 (4th ed., text revision 2000) (diagnostic criteria for GID include a persistent discomfort with one’s assigned sex and with one’s primary and secondary sex characteristics, which causes intense emotional pain and suffering) [hereinafter APA, DSM-IV-TR]. At the time of this publication, the APA was considering a change in terminology from Gender Identity Disorder to Gender Incongruence for inclusion in the fifth edition of the DSM which will be published in 2012.

9 WPATH (www.WPATH.org) is a professional organization devoted to the understanding and treatment of gender identity disorders, and is actively involved in supporting, educating, and advocating on behalf of individuals with gender identity disorder. The organization’s membership includes approximately 350 licensed professionals in the disciplines of medicine, psychiatry, nursing, psychology, sociology, social work, counseling, and law, from twenty countries, including the United States. WPATH was formerly known as the Harry Benjamin International Gender Dysphoria Association, Inc. (HBIGDA).

10 Walter Meyer III et al., The Harry Benjamin International Gender Dysphoria Association’s Standards of Care for Gender Identity Disorders (6th ed. 2001) [hereinafter Standards of Care]

11 Standards of Care, supra note 10, at 1, 11, 13, 18.

12 See AMA Resolution 122, supra note 7, at 2, n. 7; American Psychological Association, “Policy Statement: Transgender, Gender Identity, & Gender Expression Non-Discrimination,” 1, 3 (adopted Aug. 2008), available at http://www.APA.org/PI/LGBC/Policy/Transgender.html [hereinafter APA Transgender Policy Statement]; World Professional Association for Transgender Health, “WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A.,” 2 (2008); Z. Rakic, et al., The Outcome Of Sex Reassignment Surgery In Belgrade: 32 Patients Of Both Sexes, 25 Archives of Sexual Behavior 515-25 (1996).

13 See generally Standards of Care, supra note 10; Walter O. Bockting & Eli Coleman, A Comprehensive Approach to the Treatment of Gender Dysphoria, in Gender Dysphoria: Interdisciplinary Approaches in Clinical Management 131 (W.O. Bockting & E. Coleman eds., 1992); APA Transgender Policy Statement, supra note 12, at 3; AMA Resolution 122, supra note 7, at 2, n. 7.

14 AMA Resolution 122, supra note 7.

15 APA Transgender Policy Statement, supra note 12.

15 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

16 APA Transgender Policy Statement, supra note 12, at 3; AMA Resolution 122, supra note 7, at 1.

17 APA Transgender Policy Statement, supra note 12, at 3.

18 See National Commission on Correctional Health Care, Position Statement, “Transgender Health Care in Correctional Settings,” (adopted Oct. 18, 2009), available at http://www.ncchc.org/Resources/Statements/ Transgender.html.

19 Id. at 1.

20 Standards of Care, supra note 10, at 9, 12; see also Teresa DeCrescenzo & Gerald P. Mallon, Serving Transgender Youth: The Role of the Child Welfare System 19 (Child Welfare League of America 2000); Brill & Pepper, supra note 3, at 94.

21 APA Transgender Policy Statement, supra note 12, at 3.

22 Standards of Care, supra note 10, at 10.

23 23 Peggy Cohen-Kettenis & Stephanie Van Goozen, Sex Reassignment of Adolescent Transsexuals: A Follow- Up Study, 36 Am. Acad. of Child and Adolescent Psychiatry 263 (1997); Yolanda Smith, et al., Sex Reassignment: Outcomes And Predictors of Treatment for Adolescent And Adult Transsexuals, 35 Psychological Medicine 89 (2005), available at http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=retrieve&db=pubmed&dopt=abstract&li st_uids=15842032&query_hl=16.

24 SRLP, personal interview with Dr. Nick Gorton (July 17, 2006).

25 Israel & Tarver, supra note 1, at 132-41; Brill & Pepper, supra note 3, at 74-5; Standards of Care, supra note ­­10, at 9; Mallon, supra note 1, at 51.

26 Mallon & DeCrescenzo, supra note 2, at 224-225; Wilber et al., supra note 2, at 58.

27 Id. See also Rebecca Klein, Group Work Practice with Transgendered Male to Female Sex Workers, in Social Services with Transgendered Youth, 95, 96-9 (Gerald P. Mallon, ed., 1999).

28 APA, DSM-IV-TR, supra note 8, at 578; Israel & Tarver, supra note 1, at 132-3.

29 See Advocates for Informed Choice: FAQ, http://aiclegal.org/faq/ (last visited, Mar. 5, 2010). These conditions include androgen insensitivity syndrome, some forms of congenital adrenal hyperplasia, Klinefelter’s syndrome, Turner’s syndrome, hypospadias, and many others.

30 For more information about intersex conditions and accepted clinical standards of care, visit Accord Alliance, http://www.AccordAlliance.org/.

16 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

CHAPTER TWO: The Challenges of Living with a Stigmatized Identity

17 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Chapter TWO: The Challenges of Living with a Stigmatized Identity

Many transgender and gender non-conforming youth face rejection, harassment, and physical abuse at the hands of their families, communities, and schools due to bias against their gender identity or expression. Without the support of their families, these youth are at risk for depression, suicide, substance abuse, truancy, homelessness, and HIV infection.1 In addition, because of the harassment and abuse that transgender and gender non-conforming youth experience, they are more likely to enter the dependency and delinquency systems and spend part of their teenage years residing in group care facilities.2

Transgender and Gender Non-Conforming Youth Often Face Rejection by Their Families

Most parents expect their children to exhibit “typical” male or female behavior and interests from a very early age. When a child strays too far from what is considered socially acceptable behavior for a boy or a girl, some parents become upset, embarrassed, and concerned. These parents may try to prevent their child from expressing characteristics outside of traditional gender roles, through verbal means (for example, by telling their child that “boys don’t play with dolls” or that “girls must wear dresses”), and in some cases, through physical abuse or forcing their child to leave home.3 Some parents of gender non-conforming children have sought out treatment to try to “cure” their child’s gender non-conformity.4 Attempts to change a young person’s core gender are not only ineffective, but can cause intense, lasting psychological harm and alienate children from their families.5 These attempts often contribute to the child’s involvement in state care.6

Recent studies completed by the Family Acceptance Project7 have found that many parents and family members who initially reject their child can become more supportive if given a chance to learn about the issue and to understand the negative impact their rejection has on their child.8 Unfortunately, resources to help families become more accepting are not widely available, and few families have access to the support they need to understand and accept their transgender or gender non-conforming child. This leads to high levels of family rejection.

While I was in detention, I asked my grandma if I could come back to live with her and she said ‘if you aren’t going to change and like boys and stop acting like one, you can’t come back here.’ I told her I understood it was hurting her but that I couldn’t change for her.9

—Jordan, A TRANSGENDER YOUNG MAN

18 CHAPTER TWO: The Challenges of Living With a Stigmatized Identity

Transgender and Gender Non-Conforming Youth Often Experience Violence, Harassment, and Mistreatment At School, Interfering with School Success

In addition to the typical challenges faced by all adolescents in school, those who are transgender and gender non-conforming also often face name-calling, bullying, harassment, and assaults by fellow students—and even teachers—because of their gender expression.10 According to studies:

• Almost 80 percent of transgender students nationwide report feeling unsafe at school because of their gender expression.11

• Nearly half of transgender students in a nationwide survey report being physically harassed at school because of their gender expression, and one-third report being physically assaulted.12

• A California study found that 27 percent of students surveyed report harassment because they were not “masculine enough” or “feminine enough;” for students who identified as LGBT this percentage increased to 40 percent.13

• Fifty-three percent of California students report that their school is unsafe for “guys who aren’t as masculine as other guys” and 34 percent report that their school is unsafe for “girls who aren’t as feminine as other girls.”14

School Harassment Leads to Poor Grades, Depression, and Low Self-Esteem

Experiencing bias, harassment, and violence has a profound negative effect on students’ self-esteem, mental health, and overall likelihood of success at school, and increases their likelihood of alcohol and drug use.15 In a California study, for example, students who were harassed based on their actual or perceived sexual orientation—which is often related to a student’s gender expression—were more than three times as likely to carry a weapon to school, to seriously consider suicide, or to miss at least one day of school in the last 30 days because they felt unsafe, when compared to students who did not experience this type of harassment.16 In addition, the study found that students who were harassed were more than twice as likely to report depression, to use methamphetamines or inhalants, and to binge drink. They were also more likely to have low grades (C’s or below), to be victims of violence, to smoke cigarettes, to drink alcohol, or to use marijuana.17 Another study found that students who frequently faced harassment because of their sexual orientation or gender expression had grade point averages almost half a grade lower than students experiencing less frequent harassment.18

19 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Transgender and Gender Non-Conforming Students Drop Out of School or Are Expelled Because of Hostility to Their Gender

In addition to gender-based harassment and violence described above, transgender and gender non-conforming youth often face additional barriers to school success because teachers or school administrators:

• Refuse to allow students to wear clothing that matches their gender identity,

• Refuse to recognize and use a student’s chosen name and pronoun,

• Deny transgender and gender non-conforming students access to school activities, and

• Fail to provide transgender or gender non-conforming students access to safe and appropriate restrooms and/or locker rooms.

Because of these policies or practices, transgender students who go to school expressing themselves in accordance with their core gender may be disciplined or even expelled for infractions such as violating school dress codes or using the “wrong” bathroom.19 As a result, some transgender youth simply stop going to school, further increasing the likelihood of juvenile court intervention.

Transgender and Gender Non-Conforming Youth Are at High Risk for Homelessness

As a result of family rejection or abuse, a disproportionate number of transgender and gender non- conforming youth are homeless.20 Studies indicate LGBT youth comprise between 20 to 40 percent of all homeless youth.21 A San Diego study of LGBT homeless youth found that approximately four percent of surveyed youth identified themselves as transgender girls.22 Once on the street, LGBT youth often have nowhere to turn for help or protection. Studies have shown that when homeless LGBT youth try to access homeless youth services, they experience discrimination, as well as assaults by peers.23 Transgender youth face additional hurdles because many homeless shelters and other programs that assist youth are segregated by gender and have little understanding of transgender youth and their needs.24 As a result, many of these young people end up sleeping on the streets without access to the social programs connected to shelters that could provide them with food, medical care, and support.

Transgender and Gender Non-Conforming Youth Who Are Homeless Are at High Risk of Entering the Juvenile Delinquency System

For a variety of reasons, homeless transgender and gender non-conforming youth, like other youth who are homeless, are at a much greater risk of entering the delinquency system than youth who have stable homes.25 For example, transgender and gender non-conforming youth who are homeless may have little choice but to engage in activities that are criminalized in order to

20 CHAPTER TWO: The Challenges of Living With a Stigmatized Identity survive while living on the street.26 In addition, living on the street puts these youth at high risk of exploitation by adults who may manipulate vulnerable youth into participating in criminalized activities.27

For some homeless transgender youth, sex work may be their only option for income and may be the only way that they can access hormones or other forms of medical care.28 Even when transgender and gender non-conforming homeless youth are not engaging in activities that are criminalized, they face risk of arrest. According to a 2005 Amnesty International report, police regularly profile transgender and gender non-conforming youth as criminals, and selectively enforce laws relating to minor “quality of life” offenses, such as loitering, public drunkenness, public urination, and littering.29 Transgender and gender non-conforming youth may also be arrested for simply sleeping on the streets, which is in itself a crime in many places.

Developing an understanding of the stigma, rejection, and harassment that transgender and gender non-conforming youth commonly face and how it can negatively affect their psychosocial development and behavior can help group care staff to better meet these young person’s needs and ensure their safety.

Endnotes

1 Gerald P. Mallon & Teresa DeCrescenzo, Transgender Children and Youth: A Child Welfare Practice Perspective, 85 Child Welfare 215, 218 (2006); Shannan Wilber, Caitlin Ryan, & Jody Marksamer, Child Welfare League of America Best Practice Guidelines: Serving LGBT Youth in Out-of-Home Care, at 2 (2006); Caitlyn Ryan & Rafael M. Diaz, Family Responses as a Source of Risk and Resiliency for LGBT Youth, presentation at the pre-conference Institute on LGBTQ Youth, Child Welfare League of America 2005 National Conference, Washington, D.C. (2005); Caitlin Ryan et al., Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Adults, 123 Pediatrics 346, 349-51 (2009) [hereinafter Family Rejection as a Predictor].

2 Katayoon Majd, Jody Marksamer, & Carolyn Reyes, Hidden Injustice: Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts, at 69-78 (Equity Project 2009) [hereinafter Hidden Injustice]; Ryan & Diaz, supra note 1.

3 Teresa DeCrescenzo & Gerald P. Mallon, Serving Transgender Youth: The Role of the Child Welfare System 19 (Child Welfare League of America 2000).

4 Mallon & DeCrescenzo, supra note 1, at 221 (2006); Dylan Scholinski, The Last Time I Wore a Dress (Putnam 1997).

5 Mallon & DeCrescenzo, supra note 1, at 229; Gianna E. Israel & Donald E. Tarver II, Transgender Care: Recommended Guidelines, Practical Information, and Personal Accounts 134-5 (Temple University Press 1997); Gerald P. Mallon, Practice with Transgendered Children, in Social Services with Transgendered Youth 49, 55-6 (Gerald P. Mallon, ed., 1999).

6 Family Rejection as a Predictor; supra note 1 at 350; Ryan & Diaz, supra note 1; Wilber et al., supra note 1, at 15.

7 The Family Acceptance Project studies the impact of family acceptance and rejection on the health, mental health, and well-being of lesbian, gay, bisexual, transgender, and gender non-conforming youth. For more information about the Family Acceptance Project, visit: http://FamilyProject.SFSU.edu.

8 Caitlin Ryan, Families of Lesbian, Gay and Bisexual Adolescents, 34 Current Problems in Pediatric and Adolescent Health Care 369, 371-72 (2004); Ryan & Diaz, supra note 1.

9 NCLR, personal interview with transgender youth (May 8, 2006) (on file with author).

10 Gay, Lesbian and Straight Education Network, The 2007 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools 25-26, 29-32 (2008), available at http:// 21 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

www.glsen.org/Binary-Data/GLSEN_ATTACHMENTS/File/000/001/1290-1.pdf [hereinafter GLSEN 2007 National School Climate Survey]; Advocates for Children of New York, In Harms Way: A Survey of Lesbian, Gay, Bisexual, and Transgender Students Who Speak About Harassment and Discrimination in New York City Schools 4 (2005), available at http://www.AdvocatesForChildren.org/Pubs/lgbt_Report.pdf; Human Rights Watch, Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual and Transgender Students in U.S. Schools 80- 86 (2001).

11 Gay, Lesbian and Straight Education Network, The 2003 National School Climate Survey: The School-related Experiences of Our Nation’s Lesbian, Gay, Bisexual and Transgender Youth 26 (2004), available at http://www. glsen.org/Binary-Data/GLSEN_ATTACHMENTS/File/300-3.PDF

12 Gay, Lesbian and Straight Education Network, Harsh Realities: The Experiences of Transgender Youth in Our Nation’s Schools 18-19 (2009), available at http://www.glsen.org/Binary-Data/GLSEN_ATTACHMENTS/ File/000/001/1375-1.pdf. [hereinafter Harsh Realities].

13 California Safe Schools Coalition, Safe Place to Learn: Consequences of Harassment Based on Actual or Perceived Sexual Orientation and Gender Non-Conformity and Steps for Making Schools Safer 15 (2004), available at http:// www.casafeSchools.org/SafePlacetoLearnLow.pdf [hereinafter Safe Place to Learn].

14 Id. at 16.

15 GLSEN 2007 National School Climate Survey, supra note 10, at 83-94; Harsh Realities, supra note 12, at 25-29.

16 Safe Place to Learn, supra note 13, at 8-11.

17 Id.

18 GLSEN 2007 National School Climate Survey, supra note 10, at 84, 86.

19 GSA Network, Transgender Law Center, & National Center for Lesbian Rights, Beyond the Binary: A Tool Kit for Gender Identity Activism in Schools, 1-2 (2004).

20 Heather Berberet, Putting the Pieces Together for Queer Youth: A Model of Integrated Assessment of Need and Program Planning, 85 Child Welfare Journal 361, 373 (2006) (showing, in one survey, that 39 percent of LGBT Youth ages 12-24 living out of home had been forced to leave home due to sexual orientation or gender identity).

21 Nicholas Ray, Lesbian, Gay, Bisexual and Transgender Youth: An Epidemic of Homelessness 1, 11-14 (National Gay and Lesbian Task Force Policy Institute and National Coalition for the Homeless 2006), available at http://www. TheTaskForce.org/Reports_and_Research/Homeless_Youth; Rob Woronoff et. al., Out of the Margins: A Report on Regional Listening Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth in Care 34-35 (Child Welfare League of America 2006).

22 Heather Berberet, Living in the Shadows: An Assessment of Housing Needs Among San Diego’s LGBTQ Youth Living Outside the Home, presentation at the American Psychological Association annual meeting, Honolulu, HI. (2004).

23 Ray, supra note 21, at 83-5; National Alliance to End Homelessness, et al., National Recommended Best Practices for Serving LGBT Homeless Youth 2 (2009).

24 Id.

25 Berberet, supra note 20, at 373; Barbara Fedders, Coming Out for Kids: Recognizing, Respecting, and Representing LGBTQ Youth, 6 Nev. L.J. 774, 796 (2006); Hidden Injustice, supra note 2, at 71-73.

26 Berberet, supra note 20, at 374; Hidden Injustice, supra note 2, at 72-73; Rebecca Klein, Group Work Practice with Transgendered Male to Female Sex Workers, in Social Services With Transgendered Youth, 95, 98 (Gerald P. Mallon, ed., 1999).

27 B.N. Cochran, et al., Challenges Faced by Homeless Sexual Minorities: Comparison of Gay, Lesbian, Bisexual, and Transgender Homeless Adolescents with Their Heterosexual Counterparts, 92 American Journal of Public Health 774, 774--75 (2002); Klein, supra note 26, at 98-100.

28 Ray, supra note 21, at 55; Wilber et al., supra note 1, at 58.

29 Amnesty International, Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual, and Transgender People in the U.S. 33 (Sept. 2005).

22 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

CHAPTER THREE: Group Care Facilities’ Legal Responsibility to Treat Transgender and Gender Non-conforming Youth Fairly and Keep Them Safe

23 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Chapter THREE: Group Care Facilities’ Legal Responsibility to Treat Transgender and Gender Non-conforming Youth Fairly and Keep Them Safe

Under the U.S. Constitution, federal and state statutes and regulations, as well as agency policies, group care facilities have legal responsibilities to uphold the rights of all youth in their care. Group care facilities need to understand these laws in order to develop and implement legally sound policies and practices for the care of transgender and gender non-conforming youth. This chapter highlights group care facilities’ legal responsibility to treat transgender and gender non-conforming youth fairly and uphold their legal rights to safety, freedom from isolation, and access to necessary medical care.

Case Spotlight: R.G. v. Koller

In 2005, a 17-year-old transgender girl, an 18-year-old lesbian, and an 18-year-old boy perceived to be gay filed a lawsuit in federal district court challenging the failure of Hawaii Youth Correctional Facility (HYCF) staff to protect them from relentless physical, emotional, and sexual abuse by other youth.5 In 2006, the court granted the youths’ motion for a preliminary injunction, finding they would likely prevail at trial in showing the facility violated their constitutional rights.6 Specifically, the court found that the defendants were deliberately indifferent to the health and safety of the plaintiffs by failing to have (1) policies and staff training necessary to protect LGBT youth; (2) adequate staffing and supervision; (3) a functioning grievance system; and (4) a classification system to protect vulnerable youth. The court also found that HYCF’s practice of isolating LGBT youth, as a means to protect them from abuse, violated HYCF’s legal obligations to the youth. The court explained: “Consistently placing juvenile wards in isolation, not to impose discipline for violating rules, but simply to segregate LGBT wards from their abusers, cannot be viewed in any reasonable light as advancing a legitimate nonpunitive governmental objective.”7 The case eventually settled and HYCF agreed to pay the plaintiffs and their attorneys $625,000, hire a court-appointed consultant to train all HYCF staff, and adopt official policies and procedures that protect LGBT youth from harm.

Group Care Facilities Have a Legal Responsibility to Keep Transgender and Gender Non-Conforming Youth Safe from Emotional, Physical, and Sexual Abuse

Like all youth in state custody, transgender and gender non-conforming youth have a right to be safe in the facilities in which they are living. Because young people in group care facilities are in the custody of the state, facilities have a legal responsibility to protect them from physical,

24 Chapter Three: Group Care Facilities’ Legal Responsibility to Treat Transgender and Gender Non-Conforming Youth Fairly and Keep Them Safe emotional, and sexual abuse at the hands of other youth and facility staff.1 For example, if a staff member is aware that a transgender or gender non-conforming youth is being subjected to harassment or violence, he or she must respond with appropriate actions to stop the harassment and violence.2 Facility staff should never ignore gender-related harassment or abuse, repeatedly move a transgender or gender non-conforming youth from placement to placement in response to abuse, or tell youth that they should expect to be harassed because they are openly gender non- conforming. In addition, detention and correctional facilities must have a well-defined classification system that provides for the safety of all vulnerable youth, including transgender youth.3

Non-secure group care facilities also have a responsibility to protect youth in their care from abuse outside of the facility.4 For example, if a transgender or gender non-conforming youth is experiencing harassment and discrimination at school, group care facilities have a legal obligation to ensure that the school addresses the harassment promptly and appropriately.

Group Care Facilities are Prohibited from Using Isolation to Protect Transgender and Gender Non-Conforming Youth from Abuse

All youth in group care facilities have a right to be free from unreasonably restrictive conditions of confinement, including isolation.8 Facilities may face liability if:

• They place transgender or gender non-conforming youth in isolation, either as punishment for expressing their gender identity or based on the unfounded notion that transgender youth somehow pose a danger to other youth; or

• They place transgender or gender non-conforming youth in segregation or isolation to protect them from their abusers.

When transgender or gender non-conforming youth are at risk of violence in a group care facility, the law requires a more effective and less stigmatizing response than simply isolating the youth.9 More specifically, group care facilities have a legal obligation to address the root of the problem and take appropriate steps to stop the harassment and abuse.

Group Care Facilities Must Treat Transgender and Gender Non-Conforming Youth Equally and Without Discrimination

All youth in state custody have a constitutional right to equal treatment under the law. This means that child welfare and juvenile justice professionals must treat transgender and gender non- conforming youth equally when determining placements, delivering services, and responding to complaints of harassment or abuse. Specifically:

• Facilities should not refuse to accept a youth for placement because the youth is transgender or gender non-conforming.

• Facility staff should respond appropriately to complaints of gender-based harassment or abuse, following the facility’s adopted procedures for handling harassment or violence. 25 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

• Facilities should provide services to transgender and gender non-conforming youth on an equal basis with other youth, and in a non-discriminatory manner. For example, a facility should not require transgender youth to wear distinguishing clothing, prohibit transgender or gender non-conforming youth from participating in programs, or punish these youth more harshly for violating facility rules.

Group Care Facilities Have a Legal Responsibility to Provide Transgender Youth with Adequate Medical and Mental Health Care

All youth in group care facilities have a right to receive adequate physical and mental health care, including transgender-related health care.10 A facility must provide transgender youth with access to medical providers with experience in evaluating and treating youth with Gender Identity Disorder.11 If a facility ignores the instructions of a transgender youth’s treating physician or otherwise does not provide the youth with necessary health care, this may constitute a violation of the youth’s right to adequate health care and place a facility at risk of liability.12

For more information about appropriate medical care for transgender youth, see Chapter 1.

Case Spotlight: Rodriguez v. Johnson

Before Ms. Rodriguez—a young transgender woman—was sent to a secure facility in New York State, she had been taking medically prescribed hormone treatments for four years. When she arrived at the facility, rather than continuing this medically necessary care, the facility refused to fill her prescription and stopped all transgender related medical care. Without her hormone treatment, Ms. Rodriguez experienced nausea, headaches, masculinization, and severe emotional distress, which increased through the duration of her incarceration. In 2006, after she was released from the facility, Ms. Rodriguez filed a lawsuit against officials of the New York State Office of Children and Family Services (OCFS), alleging violations of her rights based on the facility’s failure to provide her with adequate medical care.13 Before the court heard the case, the parties reached a settlement which included monetary damages for Ms. Rodriguez and an agreement by OCFS to work toward implementing system-wide changes to ensure the safety and appropriate treatment of transgender youth.14 In 2008, OCFS adopted a comprehensive policy and practice guide for serving transgender youth, as well as lesbian, gay, and bisexual youth.

Group Care Facilities Must Allow Transgender and Gender Non-conforming Youth to Express Their Gender Identity

All youth have a constitutional right to freedom of speech and freedom of expression, which includes a right to be open about their sexual orientation,15 and express their core gender through their clothing and hairstyle.16 Facility staff should not require youth to hide their gender identity 26 Chapter Three: Group Care Facilities’ Legal Responsibility to Treat Transgender and Gender Non-Conforming Youth Fairly and Keep Them Safe in order to receive services; or refuse to allow transgender or gender non-conforming youth to express their gender through their clothing, hairstyle, or other accessories. If necessary, facilities must make an exception to their dress codes to allow transgender youth to wear clothing that fits with their gender identity.17

Case Spotlight: Doe v. Bell

In 2003, a New York court found that a boy’s group home was required to make an exception in its dress code policy and allow the plaintiff, a transgender girl, to wear skirts and dresses.18 The court was particularly concerned with preventing the significant emotional distress the plaintiff experienced when she was prohibited from wearing feminine attire. The court explained: “The evidence before the Court establishes that…Jean Doe experiences significant emotional distress if denied the right to wear…feminine clothing. Indeed, the treatment she has received for her GID calls for her to wear feminine clothing… Granting her an exemption from the dress policy avoids this psychological distress.”19

Group Care Facilities are Prohibited from Intimidating or Coercing Youth into Adopting Religious Practices or Requiring Youth to Participate in Religious Programming

Transgender and gender non-conforming youth have the same rights as other young people to have their religious beliefs respected while in state custody.20 Facility staff members are prohibited from proselytizing or otherwise intimidating or coercing youth into adopting any particular religious practices or beliefs.21 In addition, transgender and gender non-conforming youth in group care should not be forced to hide their identities because of religious objections of facility staff, or be required to participate in religious activities that condemn same-sex attraction or being transgender. The beliefs or values of staff members—even if religiously based—do not override the rights of young people in state care.

I was not supported when I came out as transgender to the workers at my group home. Their religious beliefs got in the way and they weren’t shy about letting me know they didn’t approve of me. While they told me I was free to identify as I pleased, they said I would have to go to their church, wear only boys’ clothes, and they would not let me talk freely about who I was because it wasn’t part of their beliefs. I was often punished just because I didn’t conform to how they wanted me to be. One time, I was grounded for two weeks for wearing eyeliner to school.22

—KIRA, A TRANSGENDER YOUNG WOMAN 27 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Group Care Facilities Must Not Treat Transgender and Gender Non-Conforming Youth as “Sex Offenders”

The law requires group care facilities to provide adequate due process protections before classifying a youth as a “sex offender,” such as a hearing, an evaluation by a qualified mental health professional, and a chance for the youth to appeal. Facilities should never treat transgender and gender non-conforming youth as sex offenders, house them with youth accused of sex offenses, or send them to sex offender treatment programs solely on account of their gender identity or expression. These practices are both discriminatory and extremely harmful to the youth, and can expose a facility to liability.23

28 Chapter Three: Group Care Facilities’ Legal Responsibility to Treat Transgender and Gender Non-Conforming Youth Fairly and Keep Them Safe

Endnotes

1 See R.G. v. Koller, 415 F. Supp.2d 1129, 1157 (D. Haw. 2006) (finding facility violated LGBT plaintiffs’ due process rights by allowing pervasive verbal, physical, and sexual abuse to persist); Alexander S. v. Boyd, 876 F. Supp. 773, 782 (D.S.C. 1995) (noting state’s child detention policy requires protecting the emotional, mental, and physical welfare of children in custody), aff’d in part and rev’d in part on other grounds, 113 F.3d 1373 (4th Cir. 1997); Hernandez ex rel, Hernandez v. Texas Department of Protective and Regulatory Services, 380 F 3d 872, 880 (5th Cir. 2004) (explaining based on “special relationship” between foster children and the state, foster children have clearly established right to personal security and safe living arrangements); B.H. v. Johnson, 715 F. Supp. 1387, 1395 (N.D. Ill. 1989) (explaining children in state custody also have substantive due process rights to protect their emotional well-being).

2 See, e.g., R.G., 415 F. Supp.2d at 1156 (finding placing vulnerable transgender girl in unit with aggressive boys amounted to deliberate indifference); A.M. v. Luzerne, 372 F.3d 572, 580-81 (3rd Cir. 2004) (finding sufficient evidence individuals were deliberately indifferent to the substantial risk of harm to thirteen-year old boy with mental illness who was placed in general population).

3 Appropriate classification is particularly important for the physical and emotional safety of transgender youth. In R.G., the facility originally placed the transgender plaintiff in the girls’ unit. Because of physical plant repairs, and over the medical staff’s objections, the facility transferred her to the general boys’ unit where she endured physical and sexual assaults. R.G., 415 F.Supp.2d at 1144. The defendants’ own experts submitted declarations stating that in their expert opinion, they believed that male to female transgender youth, like the plaintiff, were “better off … with the girls than anywhere else at the [facility] and that this placement kept them physically and psychologically safe.” Id. at 1145; see also Alexander S., 876 F. Supp. at 787 (discussing how facilities must have system for screening and separating aggressive juveniles from vulnerable juveniles).

4 See Camp v. Gregory, 67 F.3d 1286, 1294 (7th Cir. 1995).

5 See complaint at 6, R.G. v. Koller, No. 05-566 JMS/LEK (D. Haw. filed Sept. 1, 2005).

6 R.G., 415 F.Supp.2d 1129.

7 R.G., 415 F.Supp.2d at 1155-56.

8 Juvenile detention or correctional facilities should not place youth in conditions that are unreasonably restrictive or amount to punishment, or that stigmatize or humiliate youth as part of their treatment. With the understanding that some restrictions of liberty may be constitutional, a court will look at whether a particular restriction is “reasonably related” to a legitimate governmental interest to determine if there is a violation. If it is not, it may be inferred that the purpose of the restriction is punishment. Bell v. Wolfish, 441 U.S. 520, 539 (1979); see also Milonas v. Williams, 691 F.2d 931, 942 n.10 (10th Cir. 1982) (“Any institutional rules that amount to punishment of those involuntarily confined … are violative of the due process clause per se.”);R.G. , 415 F.Supp.2d at 1154 (“After examining expert opinions and case law regarding the use of isolation on children, the court concludes that the defendants’ use of isolation was not within the range of acceptable professional practices and constitutes punishment in violation of the plaintiffs’ Due Process Rights.”).

9 R.G., 415 F.Supp.2d at 1155-56 (“The likely perception by teenagers that isolation is imposed as punishment for being LGBT only compounds the harm.”).

10 See Youngberg v. Romeo, 457 U.S. 307 (1982); Jackson v. Johnson, 118 F.Supp.2d 278, 289 (N.D.N.Y. 2000) (intentional delay in provision or denial of medical care may demonstrate claim of deliberate indifference); Alexander S., 876 F.Supp. at 788 (D.S.C. 1995) (stating that incarcerated youth have right to adequate healthcare); K.H. ex rel. Murphy v. Morgan, 914 F.2d at 851 (explaining that the Constitution requires state officials to take steps to prevent children in state institutions from deteriorating physically or psychologically).

11 Child welfare and juvenile justice professionals must provide some form of appropriate treatment for transgender youth diagnosed with Gender Identity Disorder (GID). Even under the more restrictive minimally adequate medical care standard applicable to adult prisoners, courts have held that GID constitutes a “serious medical need.” Therefore, deliberately denying access to transgender-related health care for prisoners amounts to cruel and unusual punishment in violation of the Eighth Amendment of the U.S. Constitution. See, e.g., Phillips v. Michigan Dep’t. of Corr., 731 F.Supp. 792 (W.D. Mich. 1990) (holding transgender inmate had “serious medical need” and ordering correctional officials to provide her with estrogen therapy);Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding that “[t]here is no reason to treat [GID] differently from any other psychiatric disorder”); Kosilek v. Malone, 221 F.Supp.2d 156 (Mass. Dist. Ct. 2001).

29 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

12 See complaint at 2–3, 6, Rodriguez v. Johnson, No. 06CV00214 (S.D.N.Y. filed Jan. 11, 2006) (on file with author).

13 Id.

14 Settlement Agreement, Rodriguez v. Johnson, No. 06CV00214 (S.D.N.Y. settled Nov. 13, 2006) (on file with author).

15 See Henkle v. Gregory, 50 F. Supp. 2d 1067 (D. Nev. 2001) (allowing claims under First Amendment based on demands by school officials that student keep his sexual orientation to himself).

16 See, e.g., Doe v. Yunits, 2000 WL 33162199, at *4, *6-7 (Mass. Super. 2000), aff’d sub nom. Doe v. Brockton Sch. Comm., 2000 WL 33342399 (Mass. App. Ct. 2000) (holding transgender girl has First Amendment right to wear clothing consistent with her gender identity).

17 See Doe v. Bell, 754 N.Y.S.2d 846, 853-56 (N.Y. Sup. Ct. 2003) (recognizing foster care facility’s obligations to act in non-discriminatory manner and provide transgender girl with reasonable accommodation to dress code to allow her to wear skirts and dresses).

18 Id.

19 Id.

20 See Canell v. Lightner, 143 F.3d 1210, 1214 (9th Cir. 1998) (noting that practice of condoning or failing to prevent known proselytizing or religious indoctrination by prison staff would violate the Establishment Clause if plaintiff could make requisite factual showing).

21 See R.G., 415 F.Supp.2d at 1160-61 (expressing concern facility staff members promoted anti-LGBT religious teachings to LGBT youth).

22 NCLR, personal interview with transgender youth (Apr. 12, 2006) (on file with author).

23 In the adult context, courts have found the classification of an inmate as a “sex offender” has such stigmatizing consequences that unless the inmate has a sexual offense history, additional requirements must be met before this classification can take place.See Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (“We can hardly conceive of a state’s action bearing more ‘stigmatizing consequences’ than the labeling of a prison inmate as a sex offender.”). Youth are entitled to greater protections than adult inmates, and branding a juvenile with a sex offender label clearly would have the same, if not an even greater, stigmatizing effect.

30 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

CHAPTER FOUR: Best Practices for Working with Transgender and Gender Non-conforming Youth

31 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Chapter FOUR: Best Practices for Working with Transgender and Gender Non-conforming Youth

When transgender or gender non-conforming youth arrive at group care facilities, staff members are often unsure of how to provide these youth with the respectful and supportive services they need, and may unwittingly subject them to situations that are harmful or violate their legal rights. This chapter explores nine common problems transgender and gender non-conforming youth face in group care facilities and provides easy-to-implement approaches to address and prevent each of these problems. In addition, it identifies specific best practices that will help facility staff members to respond to the safety, programmatic, and health care needs of transgender and gender non- conforming youth in an appropriate and effective manner. Facility administrators may also find this chapter helpful for developing comprehensive policy and practice guidelines for serving transgender and gender non-conforming youth in their facility.

At my current group home, the staff understand and work with me. When I came here from juvenile hall and I didn’t have the right clothes, they made sure that I got some. Here I can get my hair done how I want it to be done. They even helped me change my name at school and they have my new name listed on the board at the house. Staff said they can take us to Gay Prom or the Pride parade if we want. I don’t feel so alone here. Here I feel normal.1

—MIMI, A TRANSGENDER YOUNG WOMAN

Acknowledging, Respecting, and Supporting a Youth’s Gender Identity and Expression

Problem: Failure to respect and support a youth’s gender identity or expression

Transgender and gender non-conforming youth in group care facilities often face resistance from staff when they express their core gender through their clothing, mannerisms, or accessories, or when they ask staff members to call them by a different name and pronoun than what is noted in their file. When a facility prohibits a transgender youth from expressing his or her gender, calls a youth by the wrong name and pronoun, or confiscates a youth’s clothing items, this can cause a youth significant distress, making it difficult for him or her to benefit from programs, and may compel the youth to run away.

Solution: Acknowledge, respect, and support transgender and gender non-conforming youth by referring to them with their preferred name and pronoun and allowing them to express their core gender through clothing, hairstyles, and mannerisms.

32 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

The key to providing appropriate services to transgender and gender non-conforming youth in group care facilities is to acknowledge, respect, and support a youth’s gender identity and expression. Transgender youth, like all people, communicate their gender identity through their clothing, hairstyles, mannerisms, and name and pronoun—all of which are expressions of a core aspect of themselves. Respect and support of gender identity and expression are essential for transgender and gender non-conforming youth to develop into healthy adults.

Best Practice: Refer to Youth by Their Preferred Name and Pronoun

All group care facility staff members should call transgender youth by the name and pronoun that the youth asks them to use, even if this is different from what is listed in the youth’s file. When staff members address transgender youth by their preferred name and pronoun, it demonstrates the facility’s commitment to making transgender youth feel accepted and understood. In addition, when adults in positions of authority respect and support transgender youth in this way, they set a positive example for the other youth in the facility. This encourages youth to respect their transgender peers, which helps to create a safer environment.

• If a transgender youth identifies as a girl, staff members should refer to her using the pronoun “she” and the name she uses to identify herself rather than “he” and the name she was given at birth, unless the youth requests otherwise.

• If a transgender youth identifies as a boy, staff members should refer to him using the pronoun “he” and the name he uses to identify himself, rather than the name he was given at birth, unless the youth requests otherwise.

• Staff should respect that some youth may not identify as male or female and may prefer using pronouns other than “he” or “she.”2

• Staff should actively encourage other youth to refer to transgender youth by their preferred name and pronoun.

• Staff should never call a transgender youth “he/she” or “it.”

• While formal written documents about a transgender youth may need to include a reference to the youth’s legal name, these documents should use the youth’s preferred name and pronoun throughout.

• If a facility makes identification documents for youth, the documents should include a youth’s preferred name even if that is not the youth’s legal name.

Best Practice: Allow Youth to Express Their Gender Identity through Clothing, Hairstyle, and Accessories

Group care facilities should allow transgender and gender non-conforming youth to dress, accessorize, and otherwise physically present themselves in a manner that matches the

youth’s gender identity. Staff of group care facilities should not question, ridicule or punish 33 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

transgender or gender non-conforming youth for expressing their gender identity or for expressing their gender in a non-stereotypical manner.

• Group care facilities should allow transgender girls to wear the same kinds of clothing and accessories that non-transgender girls in the facility or agency are allowed to wear and should allow transgender boys to wear the same kinds of clothing and accessories that non-transgender boys are allowed to wear. Where possible, facilities should consider adopting gender-neutral rules for clothing and grooming.

• Staff members should not force youth to wear clothing or other items associated with their birth sex.

• Group care facilities should provide youth with or allow youth to buy clothing, including bras, shorts, and underwear, that match the youth’s gender identity.

• Transgender and gender non-conforming youth should be permitted to express their gender identity through their mannerisms and behaviors. Facility staff should not require youth to conform their behaviors, interests, or mannerisms to gender stereotypes.

• Staff members should not insist that transgender girls have short or male haircuts or that transgender boys have long or feminine haircuts. Instead, facilities should permit these youth to wear and style their hair in accordance with their core gender.

Best Practice: Treat Information about a Youth’s Gender Identity as Confidential to Ensure Privacy

Staff should respect the privacy of transgender and gender non-conforming youth by treating information about a youth’s gender identity as confidential. While this information may be relevant for specific reasons, such as when staff members are developing and implementing a youth’s case plan, making decisions about placement, or providing health or mental health services, information about a youth’s gender identity is uniquely sensitive and should be treated as such. Because transgender youth still face misunderstanding and stigmatization from their peers and, sometimes, from adult caregivers, it is essential that group care facilities acknowledge, respect, and support a transgender youth’s need for privacy and confidentiality in order to prevent unnecessary stigmatization, harassment, discrimination, and violence.

• All staff members working with youth should understand the legal requirements in their jurisdiction regarding confidentiality and disclosure laws for system-involved youth. In general, information regarding a youth under the jurisdiction of the juvenile court—in both the child welfare and juvenile justice systems—is confidential; this includes information about a youth’s gender identity.

• Facility staff should only share information about a youth’s transgender status with outside agencies in situations where disclosure is required by law or necessary to achieve a specific benefit for the youth. Disclosure should not occur without first talking with the youth and obtaining his or her consent. 34 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

Making Appropriate Individualized Placement and Classification Decisions for Transgender Youth

Problem: Gender inappropriate placements

Many transgender youth experience emotional distress and are at risk of abuse when placed in facilities according to their assigned birth sex. Because most group care facilities are segregated by sex, almost all transgender and gender non-conforming youth in group care are living in facilities that house either boys or girls, or where boys and girls are housed on separate units or in separate buildings. When facilities encounter transgender youth, most often they place these youth according to their assigned birth sex rather than their gender identity, without considering other more appropriate options. Placing transgender youth with youth of the same assigned birth sex without doing an individualized analysis of the transgender youth’s gender identity and related needs in this regard, can cause serious harm to the youth’s well-being, create unnecessary safety risks, and may violate non-discrimination laws. In addition, once improperly placed, youth are frequently required to conform to gender norms that are inappropriate for them, which increase their levels of stress and discomfort.

Solution: Provide individualized placement and classification assessments for transgender youth that recognize the youth’s gender identity and ensures emotional and physical safety.

Group care facilities should approach placement and classification decisions for transgender youth by focusing on how the facility can best protect and support a transgender youth’s emotional and physical well-being, rather than assigning transgender youth to the boys or girls units strictly according to their assigned birth sex.

Best Practice: Make Placement and Classification Decisions for Transgender and Gender Non-conforming Youth Based on an Individualized Assessment

Group care facilities should always complete an individualized assessment prior to placing or classifying a transgender youth. The first step in this process is to acknowledge and respect the gender identity of the youth. While staff should look to the facility’s medical staff and administrators for placement recommendations that will best protect a youth from harm, staff should also solicit input from the youth and prioritize the youth’s evaluation of his or her safety. Staff should also consider recommendations from a youth’s mental health provider regarding appropriate housing or classification for the youth and how best to meet the youth’s privacy needs. Throughout the process, staff members should keep in mind that their overarching responsibility is to determine what placement will best support a transgender youth’s emotional and physical well-being. In recognition of the importance of appropriately placing and classifying transgender youth, some group care facilities have established specialized committees made up of intake and medical staff, administrators, and individuals with expertise on transgender youth to help determine appropriate placements for transgender youth.

35 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

• In most cases, it will be appropriate for group care facilities to house a transgender youth according to his or her gender identity, not the youth’s birth sex, and if necessary, make accommodations to ensure privacy by providing a single room for sleeping.

• Another option is for a facility to place a transgender youth in a mixed-gender unit or program. This type of placement may reduce a transgender youth’s vulnerability to violence and harassment and may eliminate other difficulties associated with gender- segregated placements.

• In some cases, a transgender youth may be emotionally and physically safer in a unit with youth of their assigned birth sex. This is often the case for transgender boys because of the high level of violence in some boys’ facilities and the risk of physical and sexual assault that a transgender boy could face if the other boys find out he was not born male. In these situations, it is appropriate for a group care facility to place a transgender youth according to his or her birth sex, but it is essential that the youth’s core gender is acknowledged and respected by the staff and youth in such a placement.

When transgender youth are placed in facilities or units that do not match their gender identity—by court order or after a determination that such placement is safer for the youth—it is vital that the facility understands the youth’s safety risks and their legal responsibility to keep the youth emotionally and physically safe and respect the youth’s gender identity.

For nearly eight years the practice at [the Hawaii Youth Correctional Facility (HYCF)] was to house all male-to-female transgender wards with the other girls rather than with the boys … It is my belief that any male-to-female transgender youth at HYCF should be housed with the other girls. Such a placement increases the likelihood of keeping the child physically safe … As an Adolescent Medicine and Pediatric Physician who is concerned about the development of youth, I am concerned about the effects of being placed based on anatomy rather than gender identity. There is significant psychological harm to one who identifies as male or female and who is then told by the ‘system,’ that he or she is, in fact, the other gender. Such a practice goes against the prevailing recommendations of pediatrics, psychology, social workers, and other youth-serving professionals that individuals should be treated in accordance with their identified gender.3

—Dr. Robert Bidwell, Pediatrician, Hawaii Youth Correctional Facility

36 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

Protecting Transgender and Gender Non-Conforming Youth from Physical and Emotional Abuse

Problem: Verbal harassment, threats, violence, and isolation

For transgender and gender non-conforming youth, group care facilities are often scary, unsafe, and in some instances, completely unlivable situations. Name-calling, ridicule, and overt hostility are regularly an accepted part of facility culture. Left unchecked, these behaviors and attitudes escalate and can lead to even more serious and harmful harassment and violence—at the hands of other youth as well as facility staff.

Unfortunately, when transgender and gender non-conforming youth inform staff of harassment or violence, too often they receive little or no help. Some facilities have responded to complaints of abuse by moving the victimized youth to another, often more restrictive facility or by isolating the youth, rather than addressing the hostile environment that fostered the abuse or appropriately handling the harasser. Isolating or segregating transgender and gender non-conforming youth reinforces the notion that these youth are bad or at fault for the harassment directed at them. Further, youth in locked facilities who are isolated often cannot access education, training, recreation, employment, and other support services that are available to youth in the general population.

Solution: Appropriately respond to harassment, provide diversity trainings for youth in the facility, and institute practices that create a supportive and respectful environment for transgender and gender non-conforming youth.

I endured…verbal harassment nearly every day. When we were in the common area watching television, the boys would touch and rub my legs without my permission…They would say things like, ‘why don’t you touch this?’ and threateningly say ‘I am going to touch you.’ On several occasions, they even masturbated in front of me. Other times they would come up from behind, grab my waist and rub up against my buttocks. [Staff] were always present when these things were happening, but usually ignored it or failed to pay attention. In some instances [staff] heard what was being said and laughed or encouraged the boys’ conduct in some other way.4

–Cyryna, a transgender young woman who was incarcerated in a boys’ facility

No matter where a facility houses a transgender or gender non-conforming youth, it is vital that the facility understands the youth’s safety risks and the staff’s legal responsibility to keep youth emotionally and physically safe. Facilities should work to create a climate of non-violence and respect for all youth that will allow these institutions to safely incorporate transgender and gender non-conforming youth into their general programs.

37 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Best Practice: Promptly and Appropriately Respond to All Gender-Based Incidents of Harassment and Abuse

Group care facilities should not permit disrespect or intolerance of any kind among youth or staff and should immediately respond to such incidents. If a staff member sees that a transgender or gender non-conforming youth is being subjected to harassment or violence at the hands of other youth or staff, the staff member must take appropriate actions to stop the incident and then address the underlying issue.

• Staff members should promptly intervene in all incidents of verbal and physical harassment or demeaning behaviors that target transgender or gender non-conforming youth, explaining that the conduct is not tolerated in that facility.

• Staff members should report repeated or serious incidents to administrators who should investigate promptly and respond as necessary according to established procedures for addressing harassment and abuse in the facility.

• Staff should never ignore gender-related abuse or tell youth that they should expect to be harassed because they are gender non-conforming. Similarly, it is inappropriate to suggest to youth that they are inviting harassment or violence by dressing or behaving in a manner inconsistent with their birth sex.

By responding quickly and appropriately to these incidents, staff members reinforce the principle that every youth is entitled to respect. This can help prevent verbal harassment from escalating into physical or sexual violence.

Best Practice: Provide a System for Reporting Gender-Based Harassment or Abuse and Promptly and Appropriately Respond to All Verbal or Written Complaints

Group care facilities should have a mechanism for residents to report threats and incidents of verbal, physical, and sexual abuse. This reporting system should be confidential, private, and easily accessible. In addition, facilities should explain to all youth how to report abuse and how complaints are handled.

• Staff and administrators should complete proper and thorough investigations of all complaints of gender-based violence or threats as required under facility policy and should never minimize or ignore reports of abuse. If the complaint is substantiated, staff should respond to the aggressor appropriately. The type of response should depend on the severity of the incident and whether the aggressor has engaged in repeated incidents of harassment or violence against this youth or other transgender or gender non-conforming youth, and should be similar in seriousness to actions used in response to other incidents of harassment or violence.

38 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

• Group care facilities should take prompt disciplinary action against any staff member who engages in harassing, abusive, or discriminatory behavior toward a transgender or gender non-conforming youth or who fails to respond appropriately to an incident of abuse that he or she witnessed or was informed about.

Best Practice: Foster a Climate of Respect to Protect Transgender and Gender Non-conforming Youth from Harassment or Abuse, Without Resorting to Isolation

Although group care facilities have a legal responsibility to protect transgender and gender non-conforming youth from abuse, simply isolating a transgender or gender non-conforming youth or moving the youth to a more secure unit in response to a youth’s complaint of harassment or assault is not an appropriate or legally sound approach. Instead, facility staff members need to address the harassing behaviors of the aggressor or aggressors and if necessary, segregate or move these youth to another unit or facility. Overall, facilities should look to create a climate of non-violence and respect for all residents in order to prevent harassment and abuse and allow these institutions to keep transgender and gender non- conforming youth safe in their general programs.

• Group care facilities should adopt and enforce policies that prohibit discrimination and harassment based on race, gender, religion, disability, national origin, sexual orientation, gender identity, and other differences. For further discussion of policy development, see Chapter 5.

• All staff members should model and communicate the message that everyone is entitled to respect and dignity and that disrespect and intolerance of any kind is not permitted.

• During orientation and at other appropriate times, youth should be informed about the facility’s anti-harassment policy, including what types of behaviors are prohibited, what the consequences are for violating the policy, and what they can do if they are harassed or abused by staff members or other youth.

• Staff members should closely supervise youth at all times and maximize opportunities for positive youth/staff interaction.

• Group care facilities should provide a range of supportive and programmatic services that meet the needs of individual youth and keep them engaged in meaningful activities.

39 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Best Practice: Educate Youth about Differences and the Harms of Harassment

Group care facilities should educate youth about diversity, respecting differences, and understanding the harmful effects of harassing others. Using educational programs that teach youth about these topics can help residents to understand that tolerance and acceptance is key to group living. These programs can be incorporated into school-based instruction in facilities that have their own school programs or they can be integrated into general group discussions or meetings in facilities without in-house schools. Some examples of programming that can foster a safe and respectful environment for all youth include:

• Creating a video for youth to watch during orientation on the diverse population of young people the facility serves and the expectation that they treat other youth with respect.

• Showing age-appropriate movies or videos where young people with different backgrounds talk about their experiences of harassment and discrimination and how it has affected them.

• Developing activities, educational programs, and discussions that celebrate the history, achievements, and struggles of a community that is commemorated during a particular month (e.g., Black History Month, Asian-American History Month, Women’s History Month, American Indian/Native Alaskan Heritage Month, LGBT History Month, Hispanic Heritage Month, etc.).

• Having books, movies, and magazines in facility common areas that include positive images of young people of different backgrounds and that foster acceptance and understanding of different communities and identities.

Supporting Transgender and Gender Non-Conforming Youth Rather Than Sexualizing Their Gender Identity or Expression

Problem: Sexualizing Non-conforming Gender Identity or Expression

By mischaracterizing gender non-conforming expressions as sexual in nature and therefore as “inappropriate sexual behavior,” some group care facilities have prevented transgender and gender non-conforming youth from expressing their core gender or have tried to change a youth’s gender identity as part of treatment goals. A case plan that prohibits a youth from expressing his or her gender identity or punishes a youth for doing so will likely increase the distress the youth experiences, undermine the youth’s emotional stability, and interfere with the youth’s care, treatment, and rehabilitation. It may also violate the youth’s legal rights.

Solution: Do not sexualize gender non-conforming behaviors or attempt to change a youth’s gender identity or expression as part of treatment.

40 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Best Practice: Educate Youth about Differences and the Harms of Harassment

Group care facilities should educate youth about diversity, respecting differences, and understanding the harmful effects of harassing others. Using educational programs that teach youth about these topics can help residents to understand that tolerance and acceptance is key to group living. These programs can be incorporated into school-based instruction in facilities that have their own school programs or they can be integrated into general group discussions or meetings in facilities without in-house schools. Some examples of programming that can foster a safe and respectful environment for all youth include:

• Creating a video for youth to watch during orientation on the diverse population of young people the facility serves and the expectation that they treat other youth with respect.

• Showing age-appropriate movies or videos where young people with different backgrounds talk about their experiences of harassment and discrimination and how it has affected them.

• Developing activities, educational programs, and discussions that celebrate the history, achievements, and struggles of a community that is commemorated during a particular month (e.g., Black History Month, Asian-American History Month, Women’s History Month, American Indian/Native Alaskan Heritage Month, LGBT History Month, Hispanic Heritage Month, etc.).

• Having books, movies, and magazines in facility common areas that include positive images of young people of different backgrounds and that foster acceptance and understanding of different communities and identities.

Supporting Transgender and Gender Non-Conforming Youth Rather Than Sexualizing Their Gender Identity or Expression

Problem: Sexualizing Non-conforming Gender Identity or Expression

By mischaracterizing gender non-conforming expressions as sexual in nature and therefore as “inappropriate sexual behavior,” some group care facilities have prevented transgender and gender non-conforming youth from expressing their core gender or have tried to change a youth’s gender identity as part of treatment goals. A case plan that prohibits a youth from expressing his or her gender identity or punishes a youth for doing so will likely increase the distress the youth experiences, undermine the youth’s emotional stability, and interfere with the youth’s care, treatment, and rehabilitation. It may also violate the youth’s legal rights.

Solution: Do not sexualize gender non-conforming behaviors or attempt to change a youth’s gender identity or expression as part of treatment.

40 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

Facility staff should understand that a youth who expresses his or her gender identity is not engaged in sexual misconduct. For example, when a transgender girl behaves in a feminine manner or wears feminine clothing, this is an expression of her core gender, and staff should not prevent her from doing so by characterizing it as “inappropriate sexual behavior.” The same is true of a transgender boy who dresses or behaves in a masculine manner.

Best Practice: Accept a Youth’s Gender Identity, Rather Than Attempting to Change it or Punishing a Youth for His or Her Gender Expression

Facilities should not try to change a youth’s gender identity or expression because one or more staff members views a youth’s gender expression as “inappropriate sexual behavior.” Facility policies and practices, rather than the personal views of individual staff members, should determine what kind of care youth receive.

• Facility staff should never punish transgender and gender non-conforming youth for expressing their core gender or tell youth they must wait until they are no longer at the facility to dress or behave in gender non-conforming ways.

• Group care facilities should never include as part of case plans or treatment goals that transgender or gender non-conforming youth should change their gender identity or must conform to gender stereotypes.

• When a youth’s treatment plan or goals are developed by outside contractors, group care facilities should carefully review the youth’s file to ensure that the youth’s gender expression is not labeled “inappropriate sexual behavior.”

Ensuring Transgender and Gender Non-Conforming Youth Are Not Labeled “Sexually Abusive” Because of their Non-Conforming Gender Identity or Expression

Problem: Inappropriate Labeling as Sexual Predators

Some facilities have treated transgender or gender non-conforming youth as if they were a sexual threat to other youth and segregated them or inappropriately labeled these young people as “sex offenders”—even though the youth had not engaged in any acts that could be categorized as sexually abusive or predatory. This unfair punishment and stigmatization can be severely traumatizing and may require these youth to carry a sex offender label with them for the rest of their lives.

Solution: Do not label or treat transgender and gender non-conforming youth as “sexually abusive” merely because of their gender identity or expression.

Being transgender or gender non-conforming does not make a person a sexual predator. Transgender and gender non-conforming youth are no more likely to have psychological

41 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

characteristics that would make them less capable of controlling their sexual urges than gender conforming youth. In fact, studies indicate that transgender youth are at higher risk of being sexually abused in group care facilities.5

Best Practice: Do Not Place Transgender and Gender Non-conforming Youth in “Sex-Offender” Treatment Programs

Transgender and gender non-conforming youth as a group do not present a danger to other youth because of their gender difference or their sexual orientation.

• Facilities should not isolate or segregate these youth based on the misconception that transgender and gender non-conforming youth are sexual predators.

• Unless required to do so by a court, facilities should not classify or label transgender or gender non-conforming youth as sex offenders.

• Similarly, unless required to do so by a court, facilities should not require transgender and gender non-conforming youth to participate in programs focused on rehabilitating youth who engage in sexually abusive behaviors.

Protecting the Privacy, Dignity, and Safety of Transgender and Gender Non-Conforming Youth in Bathrooms, Showers, and During Searches

Problem: Lack of privacy and safety in bathrooms, showers, and during searches.

Transgender and gender non-conforming youth are at risk of harassment and assault when using a bathroom, shower, or in other situations where they are required to undress in front of others with a different gender identity. This risk is heightened in group care facilities that provide little or no privacy for changing clothes and showering, such as when facilities require all youth housed in a particular unit to shower in each others’ presence. In addition to physical risks, for some youth this is so emotionally traumatic that the youth avoids using the bathroom or shower altogether, which can cause severe discomfort and medical and hygiene problems.

In some secure facilities, transgender and gender non-conforming youth have been repeatedly strip-searched for non-legitimate reasons, such as to humiliate the youth or to show other staff members the youth’s body. Often these strip searches have occurred in front of other youth, adding to the humiliation and exposing the youth to risk of further abuse.

Solution: Ensure the privacy, safety, and dignity of transgender and gender non-conforming youth in bathrooms, showers, when changing clothes, and during physical searches.

Facilities must ensure privacy, safety, and dignity for transgender and gender non-conforming youth in all situations involving nudity, including physical searches. Transgender youth should not be required to use the bathroom, shower, or undress in front of youth with a different gender identity.

42 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

I refused to use the group shower with the 13 boys in my unit because I was afraid they would assault me. [The facility] wouldn’t let me use it by myself so I just didn’t shower until the judge ordered them to let me shower alone.6

–MARIAH, a transgender young woman who was detained in a boy’s detention facility

Best Practice: Provide Transgender and Gender Non-conforming Youth with Safe Access to Bathrooms

In order to protect transgender youth from physical and emotional harm, respect their core gender, and avoid liability, all group care facilities must provide transgender youth with safe access to bathrooms. Facilities should never force transgender youth to use multi-user bathrooms that do not match their core gender.

• Generally, group care facilities should allow transgender youth to use the bathroom that matches their gender identity, without any restrictions.

• If a transgender or gender non-conforming youth feels vulnerable to abuse or harassment in either a girls’ or boys’ bathroom, or if a transgender youth is housed in a single-sex facility that does not correspond with the youth’s gender identity, the facility should permit the youth to access a single-user bathroom, if available, or allow the youth to use the multi-user bathroom in private. However, facilities should not require a transgender youth to use a single-user bathroom if he or she does not wish to do so.

• If necessary to ensure privacy and safety, a transgender or gender non-conforming youth should be permitted to use a bathroom that is usually reserved for staff.

Best Practice: Provide Transgender and Gender Non-conforming Youth with Privacy and Safety in Shower Facilities

To avoid subjecting a transgender youth to unnecessary risk of physical and emotional harm, group care staff should work with the youth to determine the best solution for showering consistent with his or her gender identity and in keeping with safety concerns. Group care facilities should never force transgender youth to use shower facilities that would require them to undress in front of other youth. Appropriate solutions include:

• Allowing a transgender youth to use a single-user shower facility.

• Installing privacy barriers in multi-user showers to create private showering spaces.

• Permitting a transgender youth to use the shower at a different time than other youth.

• Permitting a transgender youth to use a shower otherwise reserved for staff. 43 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Best Practice: Conduct Strip Searches of Transgender and Gender Non-conforming Youth in a Respectful and Dignified Manner

While there can be legitimate security-related reasons for staff in secure facilities to strip search youth in certain situations, facilities must conduct these searches in a manner that affords the greatest degree of privacy, safety, and dignity. Strip searches of youth should only be conducted if there is a reasonable suspicion that the youth may be concealing contraband, and then only after approval of a supervisor. Even when conducted in the most respectful manner possible, strip searches are extremely unpleasant and humiliating experiences. Because their bodies do not match their core gender, transgender youth experience higher levels of discomfort than other youth when required to undress in front of others, and they are at high risk of exploitation during strip searches.

• Searches of transgender youth should always be conducted in private, out of sight of other youth and staff members who are not necessary for the search.

• Transgender youth should be able to choose the gender of the person conducting the search and should have the option of having a second staff member present or of having a nurse or other health professional conduct or be present for the search.

• Staff should receive training on appropriate methods for conducting respectful searches of transgender youth.

• Searches should never be conducted for non-legitimate purposes, such as to examine a youth’s genitalia, to punish, demean, or humiliate a youth, or for the amusement of staff members.

Provide Appropriate and Adequate Health Care for Transgender Youth

Problem: Unmet transgender-related health care needs.

Transgender and gender non-conforming youth in group care facilities are often denied supportive counseling, appropriate evaluations, and other medically necessary transgender-related treatments. In some cases, facilities have even refused to fill prescriptions from a transgender youth’s treating physician. Transgender youth who are denied appropriate treatment are at risk for serious negative health and social consequences, including depression, suicide attempts, and self-treatment (using street hormones and engaging in other medically unsupervised activities for gender transition). In addition, when a facility fails to meet a transgender youth’s medical needs, abruptly stops a transgender youth’s hormone treatment, or refuses to provide the youth with other medically necessary care, the facility is at risk of liability for violating the youth’s right to adequate medical care.

Solution: Provide transgender and gender non-conforming youth with access to health care providers who are knowledgeable about the medical needs of transgender youth and ensure these youth receive the recommended transgender-related care.

Group care facilities have a legal responsibility to provide adequate medical and mental health care to all youth in their custody. Many transgender and gender non-conforming youth have specific 44 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth medical and mental health care needs because their bodies do not match their gender identity. It is essential that group care facilities are capable of identifying when a transgender or gender non-conforming youth may be in need of health services and are knowledgeable about how to help these youth get access to the care they need. While it is not a staff member’s responsibility to determine what type of treatment a youth may need, if a youth says they are transgender, is distressed about their gender, or has a prior gender identity disorder (GID) diagnosis, the group care facility should arrange an evaluation with a mental health provider with appropriate expertise in this area. If a transgender or gender non-conforming youth requests it, facilities should also provide supportive counseling either on-site or with local providers.

Best Practice: Ensure That Transgender Youth Receive Recommended Medical Treatments

Transgender youth have highly individualized healthcare needs; what specific medical treatments an individual youth needs, and when they need it, is a decision that can only be made by the youth, the youth’s family, and his or her medical providers.

• Group care facilities should provide transgender youth with access to medical providers who have specialized training and competence in the diagnosis and treatment of gender identity disorders as well as expertise in adolescent development. These providers can conduct individualized assessments to determine whether hormone treatment or other forms of care are medically necessary for a particular youth.

• Once a youth has undergone an assessment, group care facilities should make arrangements for the youth to receive the recommended transition-related treatments. Living consistently with one’s gender identity is a recognized form of therapeutic treatment and requires facilities to refer to youth by their preferred names and allow them to express their gender through clothing and hairstyle.

• When necessary, staff members should assist a youth in getting consent for treatment from the custodial agency or the court.

Best Practice: Ensure That Existing Transgender-Related Treatment Continues After a Youth Arrives at a Facility

Some transgender youth arrive at a group care facility already undergoing transgender-related medical treatments. For these youth, group care facilities should look to the youth’s treating clinicians for treatment planning and should never abruptly cut off hormone treatment because facility medical staff are unfamiliar with transgender medical care. In order to ensure a youth’s treatment is not interrupted:

• Non-secure facilities should continue to bring the youth to his or her health care appointments and assist the youth in getting and taking his or her prescription medications.

45 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

• When secure facilities have their own medical staff, a medical staff member should consult with the youth’s previous clinicians and continue to provide the youth with all transition-related treatments that are medically necessary. If a secure facility does not have medical staff, or if the staff is not experienced in transgender care, the facility should contract with the youth’s prior clinicians or other medical providers who have appropriate knowledge and experience.

For more information about transgender-related medical care, see Chapter 1.

Supporting Transgender and Gender Non-Conforming Youth in Off-Site Educational Programs

Problem: Barriers to a safe and non-discriminatory school environment.

Transgender and gender non-conforming youth often face harassment, abuse, and discrimination at school. Many transgender youth are unable to access safe bathrooms or are disciplined for wearing clothing or accessories that match their core gender. When teachers do not acknowledge, respect, and support a youth’s gender identity or if they do not promptly and appropriately respond to harassment and abuse, transgender and gender non-conforming youth are at high risk of dropping out, getting kicked out, or receiving poor grades.

Solution: Work with school administration to ensure that transgender and gender non-conforming youth are safe and supported when attending off-site schools.

When transgender and gender non-conforming youth attend off-site schools, group care facilities have a legal responsibility to respond to any problems these youth experience while at school by working with school administration to ensure safety and support.

Best Practice: Appropriately respond when transgender and gender non-conforming youth attending off-site schools experience harassment or abuse

It is essential for transgender and gender non-conforming youth in group care to be able to complete their education in a safe, respectful, and non-discriminatory environment.

• Facility staff members should be familiar with local school non-discrimination laws and policies and the process for making complaints of harassment.

• In order to help prevent potential school problems, group care facilities should meet with a school to discuss the school’s responsibility to provide an education free from discrimination and a safe learning environment for all students, prior to enrolling a transgender or gender non-conforming youth.

• Staff should regularly and proactively ask transgender and gender non-conforming youth if they are facing harassment at school; are unable to access appropriate bathrooms, locker rooms, or physical education classes; or are experiencing other issues that are interfering with their schooling, and then assist youth who are having problems by advocating with school officials until the situation is resolved. 46 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

• Staff should work with the school to ensure that youth are able to dress and groom in accordance with their gender identity.

• If necessary, staff should assist youth with negotiating with the school about the use of gender-segregated facilities, such as restrooms, locker rooms or showers, ensuring that a transgender youth does not have to use facilities that do not match his or her gender identity.

• Transgender and gender non-conforming youth should be able to participate in physical education classes according to their gender identity. As gym classes and sports teams are often segregated by sex, youth may need assistance from facility staff in negotiating their ability to participate.

Connecting Transgender and Gender Non-Conforming Youth to Supportive Resources, Programs, and Services

Problem: Inability to access supportive community services.

Many transgender and gender non-conforming youth in group care facilities are unable to access supportive services and programs because facilities cut off connections to their networks of support when they enter the facility or fail to introduce them to locally available supportive services or programs. Transgender and gender non-conforming youth may become depressed and isolated if they are unable to access resources and programs to help provide them with support, guidance, and validation.

Solution: Inform transgender and gender non-conforming youth about supportive local and national resources and programs and assist youth in accessing these services.

Many cities have support groups, social programs, and health care centers for transgender people. Transgender young people can get valuable information, support, and guidance by accessing these services. In addition, these services help transgender youth form strong positive community connections which contributes to their healthy adolescent development.

Best Practice: Help Transgender and Gender Non-conforming Youth Access Supportive Programs in the Community, or Bring These Services to the Youth

Group care facilities should be knowledgeable about local transgender support services and resources and help youth in their care to access these services.

• Facility staff should ensure that the transgender and gender non-conforming youth are aware of local transgender resources and have the necessary transportation and support so they can participate. In secure facilities, this might require bringing these services and programs to the youth.

47 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

• Facility staff should be familiar with local non-discrimination laws and help a youth reach a legal advocacy organization if the youth is subject to discrimination outside the facility. Transgender youth may also need legal help or advice to get their name legally changed.

See Appendix B for a list of resources for transgender and gender non-conforming youth.

By following the easy-to-implement approaches and best practices described above, group care facilities will be able to address and prevent many of the common problems transgender and gender non-conforming youth face. In addition, facility staff will be better prepared to respond to the safety, programmatic, and health care needs of transgender and gender non-conforming youth in a manner that is respectful, effective, and legally sound.

Endnotes

1 NCLR, personal interview with transgender youth (May 8, 2006) (on file with author).

2 Some examples of alternate pronouns that are gender neutral and preferred by some gender non-conforming youth include: “ze” instead of “he” or “she” and “hir” instead of “his” or “her,” or “they” and “their” used in reference to one person.

3 Declaration of Robert J. Bidwell at ¶¶ 36, 37, 51, & 52, R.G. v. Koller, 415 F.Supp.2d 1129 (D. Haw. 2006) (No. 05- 566).

4 Testimony of Cyryna Pasion, an 18-year-old transgender girl who was sexually harassed and assaulted, and continuously threatened with rape by other wards while incarcerated at the Hawai’i Youth Correctional Facility. National Prison Rape Elimination Commission Hearing, written transcription of oral testimony, at 9-10 (June 1, 2006), available at http://www.nprec.us/Docs/Boston_SurvivorTestimony_Pasion.pdf.

5 National Prison Rape Elimination Commission, Report at 148 (June 2009), available at http://www.ncjrs.gov/ pdffiles1/226680.pdf.

6 NCLR, personal interview with transgender youth (Feb 28, 2003) (on file with author). 48 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

CHAPTER FIVE: Best Practices for Administrators for Changing Culture, Adopting Practice Guidelines and Policies, and Training and Evaluating Staff

49 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Chapter FIVE: Best Practices for Administrators for Changing Culture, Adopting Practice Guidelines and Policies, and Training and Evaluating Staff

I felt comfortable in my group home because they allowed me the freedom to go through the process of discovering my identity, and never told me I was wrong, or forced me to be somebody I wasn’t. We were always taught that hate was wrong, in whatever form it came in. When my beliefs came into conflict with staff members, they didn’t push their own agenda. Both the staff and the youth went through diversity training. I was allowed to wear what I felt comfortable in, without questions. When I changed my name, everyone called me by my new name and used the correct pronouns.1 — Kevin, a transgender young man

Administrators can take several steps to ensure the health, welfare, and safety of transgender and gender non-conforming youth in their group care facilities. This chapter provides specific guidance to facility administrators to assist them in providing leadership, developing and implementing policy and practice guidelines, and instituting staff training and evaluation.

Providing Leadership

First, to ensure that transgender and gender non-conforming youth receive appropriate care and treatment, administrators need to provide leadership at their facility on this issue. Administrators should clearly articulate what they expect from staff members and hold staff accountable when transgender or gender non-conforming youth face discrimination or are mistreated. Clear administrative leadership is essential in order to create a culture in which the worth and dignity of every person is respected. Administrators must ensure that all facility staff members—from the director to the line staff—model values of acceptance, fairness, and respect when working with transgender and gender non-conforming youth.

To lead the way in creating and reinforcing this culture, administrators should take these concrete steps, thus modeling the expected approach themselves.

• Call transgender youth by their preferred names and pronouns, and require other staff to do the same.

• Require staff to respond immediately and adequately to all harassment and abuse.

50 CHAPTER FIVE: Best Practices for Administrators for Changing Culture, Adopting Practice Guidelines and Policies, and Training and Evaluating Staff

• Use staff meetings and other communication mechanisms to convey to staff the expectation that they are to treat all youth, including transgender and gender non- conforming youth, respectfully and in a fair and non-discriminatory manner.

• Display posters that inform youth the facility is a “hate-free space” and task staff with acquiring LGBT supportive books, magazines, and videos that can be placed in common areas of the facility, such as reading rooms or libraries.

• Regularly engage in dialogues with facility staff and youth about respecting differences and understanding the harms of harassment and bias.

Developing, Adopting, and Posting Written Non-discrimination Policies and Practice Guidelines

To make facility rules and expectations clear, administrators of group care facilities should develop and implement non-discrimination policies and comprehensive practice guidelines that incorporate the best practices detailed in the previous chapter. Policies tell staff what the rules are, and practice guidelines help to reinforce these policies.

Non-discrimination policies

Group care facilities, and the child welfare and juvenile justice departments that oversee these facilities, should adopt written policies that prohibit harassment and discrimination on the basis of actual or perceived sexual orientation and gender identity, as well as race, ethnicity, gender,

A Sample Non-discrimination and Harassment Policy Might Read:

“It shall be the policy of the ABC Group Care Facility to maintain and promote a safe environment for all youth in the facility’s care. All ABC staff, volunteers, and contract providers are prohibited from engaging in any form of discrimination against or harassment of youth on the basis of actual or perceived race, ethnicity, immigration status, national origin, sex, disability, sexual orientation, gender identity, and gender expression. ABC is committed to providing a healthy and accepting setting for all youth placed in its facilities by training staff and educating youth to respect each other. Any discrimination against or harassment of youth, including by other youth, will not be tolerated. The provision of services to lesbian, gay, bisexual, transgender, and gender non-conforming youth in facility programs shall be free of institutional and personal bias and shall be based on the attached practice guidelines and procedures. ABC staff shall recognize and address the individual needs of each youth and shall apply ABC policies and practices fairly to all youth in our facilities. If you have experienced harassment or discrimination in violation of this policy, please file a grievance according to facility policy. All grievances will be reviewed and investigated immediately.”

51 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

religion, disability, and other differences. These policies should apply to all employees, volunteers, and contractors who have contact with youth in the facility. Non-discrimination policies should contain written procedures for filing grievances based on violations of the policy, and these procedures should explain how complaints will be investigated and resolved. Facilities should also post their non-discrimination policy in locations where both the staff and youth in the facility can see it and provide youth and staff with copies during orientation. By informing all staff and youth of facility policies, and by providing a clear avenue for youth to file grievances, administrators convey that this is a serious concern and create a specific feedback mechanism for determining whether problems are occurring.

Practice Guidelines

In order to further assist staff members in serving transgender and gender non-conforming youth and to provide guidance on what it means to not discriminate under the facility’s policy, administrators should also adopt practice guidelines and procedures for the care of transgender and gender non-conforming youth. Written practice guidelines clarify what is the established and expected facility protocol for handling specific situations that arise when working with transgender and gender non-conforming youth. Administrators can use the best practice recommendations described in the previous chapter as a foundation for creating practice guidelines for this population. Facilities should include copies of these practice guidelines in all written handbooks and orientation materials they give to youth entering the facility. They should also include these documents in all handbooks and orientation materials given to new employees, contractors, and volunteers.

See Appendix C for a model policy and practice guidelines for serving youth who are transgender and gender non-conforming (as well as youth who are lesbian, gay, or bisexual).

Providing Training to Staff

Training is an essential step to ensure that staff members understand the requirements of the new policy and guidelines and have the tools to put the guidelines into everyday practice. All staff members and administrators of group care facilities should receive training about transgender and gender non-conforming youth during orientation and as part of continuing education. Administrators should work with facility training staff to obtain or develop a training curriculum that, at a minimum, covers the following topics: 1) the goals and requirements of the facility’s non- discrimination policy and practice guidelines regarding transgender and gender non-conforming youth; 2) how to serve transgender and gender non-conforming youth in a respectful, fair, and non-discriminatory manner; and 3) how to recognize, prevent, and respond to harassment and violence against these youth. These trainings should be taught by professional trainers with expertise in issues affecting transgender and gender non-conforming youth, preferably in the state care context. Administrators also should work with trainers to incorporate transgender issues into general trainings for staff members. Trainers can do this by using transgender and gender non-

52 CHAPTER FIVE: Best Practices for Administrators for Changing Culture, Adopting Practice Guidelines and Policies, and Training and Evaluating Staff conforming youth as examples in training scenarios or by including concerns facing transgender and gender non-conforming youth in trainings that cover youth safety, substance abuse, or other facility policies.

Including Adherence to Transgender Policies and Practices in Staff Evaluation Procedures

Administrators should include a way to measure how well staff members follow the facility’s adopted policies and practice guidelines in staff evaluation procedures in order to hold staff members accountable. Facilities should inform staff members that this will be part of their evaluation process and that administrators will take into account their adherence to these policies when making determinations related to promotion, disciplinary action, and termination. Staff members who are not treating transgender and gender non-conforming youth appropriately should receive additional training, increased supervision, and any other actions necessary to ensure future compliance with the policy.

Conclusion

Through the leadership of administrators, the development and implementation of policy and practice guidelines, and the provision of training and evaluation, group care facilities can greatly improve outcomes for transgender and gender non-conforming youth. At a minimum, transgender and gender non-conforming youth must be safe and treated in a non-discriminatory manner. Ideally, however, these steps will help group care facilities to establish an institutional culture where all youth are treated with dignity and respect, with a focus on helping youth to grow into healthy and independent adults. Ultimately, that is what all young people need.

53 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Endnotes

1 NCLR, personal interview with transgender youth (May 3, 2006) (on file with author).

54 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

APPENDICES

55 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Appendix A: Common Terms and Definitions

This glossary provides an overview of some common terms used by many transgender and gender non-conforming people and their allies. It is meant to be a general guide. It would be impossible to create a glossary that included every potential word people might use to describe themselves, especially since these terms are always evolving. For that reason, you should refer to any person using the terms and pronouns they prefer.

Androgynous: having or displaying characteristics, feelings, or behaviors that are both feminine and masculine.

Assigned birth sex: the sex, male or female, originally noted on an individual’s birth certificate. May also be referred to as “birth sex.”

Bisexual: a person who is emotionally, romantically, and sexually attracted to both men and women.

Butch: a term some individuals use to describe their masculine gender identity or expression.

Coming out: the process of disclosing one’s sexual orientation or gender identity to others. Coming out is not a discrete event but a lifelong process.

Femme: a term some individuals use to describe their feminine gender identity or expression.

FTM: a person who transitions from female to male, meaning a person who was assigned female at birth, but identifies and lives as a male. Also known as a “transgender man” or “transgender boy.”

Gay: a person whose emotional, romantic, and sexual attractions are primarily for individuals of the same sex, typically in reference to men. In some contexts, it is still used as a general term for gay men and lesbians.

Gender expression: a person’s expression of their gender identity, including their characteristics and behaviors such as appearance, dress, mannerisms, speech patterns, and social interactions.

Gender identity: a person’s internal, deeply felt sense of being male or female, or something other or in-between. Everyone has a gender identity.

Gender Identity Disorder (GID): a diagnosable medical condition in which an individual has a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the opposite sex, as well as a persistent discomfort about one’s assigned birth sex or a sense of inappropriateness in the gender role of that sex. To be diagnosed, the individual must be evidencing clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Gender non-conforming: having or being perceived to have gender characteristics and/or behaviors that do not conform to traditional or societal expectations. Gender non-conforming people may or may not identify as LGBT.

56 APPENDICES

Gender roles: social and cultural beliefs about appropriate male or female behavior.

Genderqueer: a term of self-identification for people who do not identify with the restrictive and binary terms that have traditionally described gender identity (for instance, male or female only).

Hormone Therapy (also Hormone Replacement Therapy, HRT, Hormonal Sex Reassignment): administration of hormones to affect the development of secondary sex characteristics that are consistent with one’s gender identity.

Intersex: a term used to refer to an individual born with a reproductive or sexual anatomy that does not conform exclusively to male or female norms in terms of physiological sex (this may include variations of genetics, genital or reproductive structures, or hormones). According to the Intersex Society of North America (ISNA)—an organization that advocates and educates about intersex concerns—about one in every 2,000 children are born intersex.

LGBT: common acronym for lesbian, gay, bisexual, and transgender—persons who despite their differences, are often discriminated against in similar ways. Sometimes written to include Q for questioning and/or queer, I for intersex, A for ally, and/or TS for two-spirit. May also be written as GLBT.

Lesbian: a woman whose emotional, romantic, and sexual attractions are primarily for other women.

MTF: a person who transitions from male to female, meaning a person who was assigned male at birth, but identifies and lives as a female. Also known as a “transgender woman” or “transgender girl.”

Non-discrimination policy: a written policy that explicitly includes sexual orientation and gender identity and that prohibits anti-LGBT harassment and discrimination.

Preferred name: the name an individual prefers to be called. If you are unsure what name to use, ask to clarify what name the individual uses.

Preferred pronoun: the gender pronoun that an individual prefers. If you are unsure what pronoun to use, ask to clarify what pronoun the individual uses.

Queer: a historically derogatory term for a gay man, lesbian, or gender non-conforming person. The term has been widely reclaimed, especially by LGBT youth, as a positive social and political identity. It is sometimes used as an inclusive, or umbrella, term for all LGBT people. Queer is also used as a term of self-identification by people who do not identify with more restrictive, binary terms. Some LGBT community members still find this term offensive.

Questioning: an active process in which a person explores their own sexual orientation and/or gender identity and questions the cultural assumptions that they are heterosexual and/or gender conforming. Many LGBT people go through this process before “coming out.” Not all people who question their identities end up self-identifying as LGBT.

57 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Self-identification: one’s own identification of one’s gender identity or LGB sexual orientation. Increasingly, LGBT youth are self-identifying during pre-adolescence or early adolescence.

Sex reassignment: medical procedures that change one’s body to make it conform to one’s gender identity. Contrary to popular belief, there is not one surgery but rather various procedures that a person might undergo, depending on their own medical needs determined with a health care provider.

Sexual orientation: a term describing a person’s emotional, romantic, and sexual attraction, whether it is for members of the same sex or a different sex. More appropriate than “sexual preference.”

Stud: a term that some masculine women use to describe themselves in regards to their sexual orientation and gender identity. Most prevalent in urban youth-of-color communities. Also known as “ag” or “aggressive.”

Transgender: a term that can be used to describe people whose gender expression is non- conforming and/or whose gender identity is different from their assigned sex at birth.

Transition: the time period when a transgender person starts living as the gender they identify as. Often includes a change in style of dress, selection of new name, a request that people use the correct pronoun, and possibly hormone therapy and/or surgery.

Transphobia: fear of, hatred of, aversion to, or discrimination against transgender people or people who are gender non-conforming.

Transsexual: a term for someone whose gender identity is different from their assigned birth sex. Often transsexual people undergo medical treatments to change their physical body to match their innate sense of their gender identity through hormone treatments and/or surgery. Many transsexual people refer to themselves as transgender.

Two-Spirit: an English term that emerged in 1990, out of the third annual inter-tribal Native American/First Nations gay and lesbian conference to describe Native Americans who fulfill one of many mixed gender roles found traditionally among Native Americans and Canadian First Nations indigenous groups. The mixed gender roles encompassed by the term historically included wearing the clothing and performing the work associated with both men and women.

58 APPENDICES

Appendix B: List of Resources

Support Organizations for Transgender and Gender Non-Conforming Youth

Advocates for Youth www.AdvocatesForYouth.org Advocates for Youth is the only organization that works both in the United States and internationally with a sole focus on adolescent reproductive and sexual health, providing information and peer support to transgender youth. Their website includes listings of resources and articles.

CenterLink www.lgbtcenters.org The National Association of LGBT Community Centers’ website allows users to search for LGBT community centers in your city or state. Centers are the primary point of contact for people coming out and seeking LGBT health services, community information and referrals.

FIERCE! www.Fiercenyc.org FIERCE! is a community organizing project for Transgender, Lesbian, Gay, Bisexual, Two Spirit, Queer, and Questioning (TLGBTSQQ) youth of color in New York City.

Gay, Lesbian and Straight Education Network (GLSEN) www.glsen.org GLSEN, the Gay, Lesbian and Straight Education Network, is the leading national education organization focused on ensuring safe schools for all students. GLSEN envisions a world in which every child learns to respect and accept all people, regardless of sexual orientation or gender identity/expression.

Gay-Straight Alliance Network (GSA Network) www.gsanetwork.org GSA Network is a youth-led organization that empowers youth to fight homophobia and transphobia in schools through Gay-Straight Alliances. GSA Network advocates on behalf of transgender and gender non-conforming youth through lobbying, policy advocacy, education programs, and grassroots organizing.

National Youth Advocacy Coalition www.nyacyouth.org The National Youth Advocacy Coalition is a capacity-building organization that advocates for and with LGBTQ young people in an effort to end discrimination against these youth and to ensure their physical and emotional well-being.

OutProud www.OutProud.org OutProud, the National Coalition for Gay, Lesbian, Bisexual & Transgender Youth, serves the needs of these youth by providing advocacy, information, resources and support.

Survivor Project www.SurvivorProject.org The Survivor Project is an organization that is dedicated to addressing the needs of trans and intersex survivors of sexual assault, rape, or domestic violence through caring action, education, and expanding access to resources. Their website includes educational resources, tips for services providers, and survivors’ stories.

Youth Guardian Services www.Youth-Guard.org Youth Guardian Services is a youth-run organization that provides support services on the Internet to LGBTQ and ally youth.

59 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Support Organizations for Families

Family Acceptance Project FamilyProject.sfsu.edu The Family Acceptance Project (FAP) is a community research, intervention, education and policy initiative that studies how family acceptance and rejection affects the health, mental health and well-being of their LGBT children. FAP is developing evidence-based interventions to help ethnically diverse families decrease rejection and increase support of LGBT children and adolescents, decreasing health and mental health risks and promoting their well- being. FAP develops educational materials and resources for families and providers to help families support their LGBT children, and publishes research on LGBT young people and families.

Parents, Families & Friends of Lesbians and Gays (PFLAG) - TNET www.pflag.org The purpose of this special affiliate of PFLAG is to promote the health and well-being of transgender persons, their families and friends through: support, to cope with an adverse society; education, to enlighten an ill-informed public; and advocacy, to end discrimination and to secure equal civil rights. PFLAG-TNET focuses on support for transgender people and their parents, families, and friends; education on transgender facts and issues; and advocacy for equal rights for the transgender community at local and national levels.

Helplines

GLBT National Help Center www.GLBTNationalHelpCenter.org The GLBT National Help Center is dedicated to meeting the needs of this community and those questioning their sexual orientation or gender identity. The hotline offers free and confidential peer-counseling, information and local resources for cities and towns throughout the United States. The hotline offers counsel to callers of all ages about coming out issues, relationship concerns, HIV/AIDS anxiety, safer-sex information and more.

The Trevor Project www.TheTrevorProject.org The Trevor Project operates the only nationwide, around-the-clock crisis and suicide prevention helpline for lesbian, gay, bisexual, transgender and questioning youth. The Trevor Helpline can be reached at 866.4.U.TREVOR

Transgender Health Care Resources

Gay and Lesbian Medical Association www.glmA.org Gay and Lesbian Medical Association (GLMA) works to ensure equality in health care for lesbian, gay, bisexual and transgender (LGBT) individuals and health care professionals. GLMA provides information for transgender people on accessing quality health care and hosts a referral network of GLMA members and LGBT-friendly clinicians across the country.

Gender Identity Research and Education Society www.gires.org.uk The aim of this United Kingdom website is to inform a wide public of the issues surrounding gender identity and transsexualism. It is also a resource for gender variant people and their families, the medical and other professionals that provide their care, health authorities, members of Parliament and other policy makers.

National Coalition for Lesbian, Gay, Bisexual and Transgender Health www.lgbthealth.net/stage The National Coalition for Lesbian, Gay, Bisexual and Transgender Health is committed to improving the health and well-being of lesbian, gay, bisexual and transgender individuals and communities through public education, coalition building, and advocacy that focuses on research, policy, education and training.

60 APPENDICES

Trans-Health.com www.Trans-Health.com Trans-Health is a trans community electronic journal on trans health issues. Trans-Health is a volunteer-run website providing information on health and fitness for trans people.

TransGenderCare www.TransGenderCare.com TransGenderCare contains a large archive of health information that Dr. Carl Bushong and associates of the Tampa Stress Center have written and compiled from years of providing medical, psychological, and general health services to the transgender community.

Transgender Health Channel www.lgbthealthChannel.com/Transgender/Index.shtml This website provides an overview of transgender health issues and includes information on health care guidelines and Gender Identity Disorder. The website’s content is developed and monitored by physicians.

Vancouver Coastal Health: Transgender Health Program www.vch.ca/TransHealth The Transgender Health Program oversees the development of guidelines for care, with program staff and contracted specialists assisting with review of best practice research and standards developed by other transgender health programs. In addition, this website provides materials for transgender youth and their families explaining transgender medical care and what to expect.

World Professional Association for Transgender Health (WPATH) www.WPATH.org WPATH is an international, interdisciplinary organization of professionals from fields of psychiatry, endocrinology, surgery, law, psychology, sociology, and counseling. WPATH publishes the internationally recognized Standards of Care for Gender Identity Disorders, an evolving consensus on best practice in the provision of medical treatments for individuals with Gender Identity Disorder (GID).

Legal and Advocacy Organizations

Advocates for Informed Choice www.aiclegal.org AIC promotes the civil rights of children born with variations of sex anatomy. AIC is the first organization in the country to undertake a coordinated strategy of legal advocacy for the rights of children with intersex conditions or DSDs (disorders of sex development).

American Civil Liberties Union (ACLU) – Lesbian, Gay, Bisexual, and Transgender Project www.aclu.org/lgbt-Rights The ACLU’s LGBT Project fights discrimination and moves public opinion through the courts, legislatures and public education across the following issue areas: relationships, youth and schools, parenting, gender identity and expression, and discrimination in employment and housing.

Equity Project www.EquityProject.org The Equity Project is an initiative to ensure that lesbian, gay, bisexual and transgender (LGBT) youth in juvenile delinquency courts are treated with dignity, respect, and fairness. The Equity Project examines issues that impact LGBT youth during the entire delinquency process, ranging from arrest through post-disposition.

Gay & Lesbian Advocates & Defenders’ Transgender Rights Project www.glad.org Through the Transgender Rights Project (TRP), Gay and Lesbian Advocates and Defenders puts litigation, legislative, and educational assets to work in a focused way to establish clear legal protections for the transgender community.

61 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Lambda Legal www.LambdaLegal.org Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

National Center for Lesbian Rights www.nclrights.org NCLR is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. NCLR’s Youth Project offers training, resources, and technical assistance to attorneys and advocates who represent LGBTQ youth. NCLR provides free legal information to LGBTQ youth and their families through their toll-free helpline.

Sylvia Rivera Law Project www.srlp.org The Sylvia Rivera Law Project (SRLP) works to guarantee that all people are free to self-determine their gender identity and expression, regardless of income or race, and without facing harassment, discrimination, or violence. SRLP is a collective organization founded on the understanding that gender self-determination is inextricably intertwined with racial, social and economic justice.

The National Center for Transgender Equality www.TransEquality.org The National Center for Transgender Equality (NCTE) is a social justice organization dedicated to advancing the equality of transgender people through advocacy, collaboration and empowerment.

The National Gay and Lesbian Task Force www.TheTaskForce.org/Issues/Transgender The mission of the National Gay and Lesbian Task Force is to build the grassroots power of the LGBT community by training activists, equipping state and local organizations with the skills needed to organize broad-based campaigns to defeat anti-LGBT referenda and advance pro-LGBT legislation, and building the organizational capacity of the movement.

Peter Cicchino Youth Project www.UrbanJustice.org The Peter Cicchino Youth Project assists LGBT young people in New York City with benefits, housing, discrimination, and healthcare issues. Call 1-800-LGBT-LAW to make an appointment or attend a clinic at the Center or Streetworks. Services are administered in English.

The Transgender Law and Policy Institute www.TransgenderLaw.org The TLPI brings experts and advocates together to work on law and policy initiatives designed to advance transgender equality. The TLPI provides legal, medical, and social science resources to attorneys and others advocating on behalf of transgender individuals. The TLPI makes freely available litigation, legislative, and education advocacy materials for use by other advocates for transgender people.

The Transgender Law Center www.TransgenderLawCenter.org TLC is a civil rights organization that utilizes direct legal services, public policy advocacy, and educational opportunities to advance the rights and safety of transgender youth and adults. TLC connects transgender people and their families to culturally competent legal services, increases acceptance and enforcement of laws and policies that support California’s transgender communities, and works to change laws and systems that fail to incorporate the needs and experiences of transgender people. TLC’s services are provided in California.

Transgender Legal Defense and Education Fund www.TransgenderLegal.org TLDEF is committed to ending discrimination based upon gender identity and expression and to achieving equality for transgender people through public education, test-case litigation, direct legal services, community organizing and public policy efforts. TLDEF’s services are provided in New York. 62 APPENDICES

Additional Resources for Group Care Facilities

Hidden Injustice: Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts Legal Services for Children, National Juvenile Defender Center, National Center for Lesbian Rights, 2009. Hidden Injustice represents the first effort to examine the experiences of LGBT youth in juvenile courts across the country. The report is based on information collected from 414 surveys and 65 interviews with juvenile justice professionals, including judges, defense attorneys, prosecutors, probation officers, detention staff, and other juvenile justice advocates; focus groups and interviews of 55 youth who possess relevant firsthand experience; and an extensive review of relevant social science and legal research findings. The report contains extensive recommendations directed towards judges, defense attorneys, prosecutors, probation officers, detention facility administrators, policy makers, and advocates. In addition, the report makes eleven core recommendations to enhance the overall capacity of the system to work effectively with LGBT youth. Download full publication: www.EquityProject.org To order (free of charge): Order online at http://www.nclrights.org/HiddenInjustice

Locked Up & Out: Lesbian, Gay, Bisexual, & Transgender Youth in Louisiana’s Juvenile Justice System Juvenile Justice Project of Louisiana, Wesley Ware, 2010. Locked Up & Out shares the experiences of LGBT youth in Louisiana’s juvenile justice system, particularly in long- term secure confinement. The report discusses the path LGBT youth often take into the juvenile justice system, including various risk-factors that may indicate LGBT youth are disproportionately represented in secure care. Once inside Louisiana’s youth prisons, LGBT youth often face psychological abuse, sexual abuse, isolation, increased barriers to their early release, and other harmful conditions. The report provides recommendations for Louisiana’s juvenile justice system, including trainings and policy reform. While focused on the stories of LGBT youth in Louisiana, the report is relevant throughout the country. Download full publication: http://jjpl.org To order (free of charge): Contact JJPL’s LGBT and HIV/AIDS Project – 504-522-5437 ext. 292.

Supportive Families, Healthy Children: Helping Families with Lesbian, Gay, Bisexual & Transgender Children Family Acceptance Project, San Francisco State University, Caitlin Ryan, 2009. This is the first of several basic educational materials to share findings from the Family Acceptance Project to help families support their LGBT children. This first version is written in English, Spanish and Chinese at a 10th grade reading level. Download publications: http://FamilyProject.sfsu.edu/Publications To order: Contact FAP at [email protected] for information on ordering publications in bulk.

Opening Doors for LGBTQ Youth in Foster Care: A Guide for Lawyers and Judges American Bar Association, Laver & Khoury, 2008. This guide aims to increase the legal community’s awareness of LGBTQ youth in foster care and the issues they face. It provides tools for lawyers and judges to aid their advocacy and decision-making on behalf of LGBTQ youth. Special attention is given to helping lawyers and judges understand the unique needs and risk factors of LGBTQ youth, forming positive attitudes and beliefs about LGBTQ youth, developing strong attorney-client relationships, and using effective advocacy strategies. To order: Call the ABA Service Center at 800.285.2221. Or go to the ABA web-store at http://www.ababooks.org (ISBN: 978-1-60442-073-9, ABA CATALOG #: 5490444) Website: http://www.abanet.org/Child/lgbtq.shtml

CWLA Best Practice Guidelines: Serving LGBT Youth in Out-of-Home Care Child Welfare League of America, Wilber, Ryan, & Marksamer, 2006. This easy-to-use resource contains the first-ever set of comprehensive professional guidelines for how child welfare and juvenile justice professionals can best serve LGBT youth in state care. The Best Practice Guidelines developed out of recommendations from the Model Standards Project, a collaboration between Legal Services for Children and the National Center for Lesbian Rights. Download full publication, executive summary, and Power Point presentation: www.nclrights.org/Youth_Pubs To order: Order online at http://www.cwla.org/Pubs or call CWLA at 1-800-407-6273.

63 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Out of the Margins: A Report on Regional Listening Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender and Questioning Youth in Care Child Welfare League of America and Lambda Legal, Woronoff, Estrada & Sommer, 2006. The CWLA/Lambda Regional Listening Forums provided an opportunity for LGBTQ youth in care, and the adults who work with and care for them, to share their experiences­ and work together to identify strategies for bringing about lasting change within the child welfare system. Out of the Margins consolidates the responses of the more than 500 youth and adult participants from 22 states who attended the Forums and offered personal stories of actual experiences and concrete solutions for building the capacity of the child welfare system to better meet the needs of LGBTQ young people. Download full publication: www.cwla.org/Programs/Culture/OutoftheMargins.pdf To order (free of charge): Order online at http://www.LambdaLegal.org/Our-Work/Issues/Youth/Out-of- Home-Care/YOHC-Publications-Order-Form.html or call Lambda Legal at 212-809-8585.

Getting Down to Basics: Tools to Support LGBTQ Youth in Care Child Welfare League of America and Lambda Legal Defense & Education Fund, 2006. This tool kit offers practical information on helping to ensure that LGBTQ youth in care receive the support and services they deserve. Consisting of 18 colorful pull-outs, it serves as an ideal starting point for administrators and practitioners unfamiliar with LGBTQ youth in out-of-home care issues. Specific target audiences include: caseworkers; attorneys, guardians ad litem, and advocates; congregate care providers; juvenile justice professionals; faith-based providers; LGBTQ youth; and families supporting LGBTQ youth. Sub-topics include (but are not limited to): working with transgender youth; working with homeless LGBTQ youth; LGBTQ youth risk data; recommendations for training and education; combating misguided efforts to ban lesbian and gay adults as foster and adoptive parents; and basic facts about being LGBTQ. Download full publication: http://www.LambdaLegal.org/Take-Action/Tool-Kits To order (free of charge): Order online at http://www.LambdaLegal.org/Issues/Youth-In-Out-of-Home-Care/ YOHC-Publications-Order-Form.html or call Lambda Legal at 212-809-8585.

Breaking the Silence: Lesbian, Gay, Bisexual, Transgender, and Queer Foster Youth Tell Their Stories - DVD and Resource CD National Center for Lesbian Rights, 2006. The Breaking the Silence DVD, produced in collaboration with the Y.O.U.T.H. Training Project and the Center for Digital Storytelling, contains ten short digital stories that were written and directed by LGBTQ youth who have spent time in state custody. Each of these digital stories is designed to stand on its own. For specific suggestions on how to use the DVD for training or other purposes, refer to the Introduction and User’s Guide and the DVD Viewing and Discussion Guide provided on the CD.

A supplemental bonus CD contains a comprehensive collection of more than 25 resources produced by organizations that are nationally respected for their expertise in supporting LGBTQ out-of-home youth. These tools provide additional background and support for trainers and advocates as well as guidance to administrators and managers on how to transform agencies to be safe and non-discriminatory. To order (free of charge): Order online at www.nclrights.org/Youth_bts

64 APPENDICES

Appendix C: DRAFT Model Policy & Practice Guidelines for Providing Non-Discriminatory Services to LGBT and Gender Non-conforming Youth in Group Care Facilities

Purpose

In accordance with state and federal laws, each youth under the jurisdiction of [insert the name of your facility] has the right to live in an environment free of harassment and discrimination. [insert the name of your facility] is committed to providing a healthy and accepting setting for all youth placed in its care by training and evaluating staff, instituting policies, and educating youth to respect each other. [Insert the name of your facility] does not tolerate discrimination or harassment by employees, volunteers, contract providers, or youth.

The purpose of these policy and practice guidelines is to establish operational practices that reinforce our commitment to respect the dignity of LGBT and gender non-conforming youth, create a safe environment for all members of the [insert the name of your facility] community, and ensure that all youth have equal access to all available services, placement, care, treatment, and benefits provided by [insert the name of your facility].

Policy

• It shall be the policy of [insert the name of your facility] to maintain and promote a facility that provides the highest quality of services to youth regardless of their actual or perceived race, ethnicity, sex, immigration status, disability, national origin, sexual orientation, or gender identity or expression.

• LGBT youth confined at [insert the name of your facility] shall receive fair and equal treatment, without bias and in a professional and confidential manner based on principles of sound professional practice.

• Employees, volunteers, and contractors that offer services to youth confined at [insert the name of your facility] shall not discriminate against or harass any youth in their care based on a youth’s actual or perceived sexual orientation, gender identity or expression, or other protected categories.

• [Insert the name of your facility] employees shall protect youth from discrimination, physical and sexual harassment or assault, and verbal harassment by other youth, based on a youth’s actual or perceived sexual orientation, gender identity or expression, or other protected categories.

• [Insert the name of your facility] will take all reasonable steps within its control to meet the diverse needs of all confined youth and provide an environment in which all individuals are treated with respect and dignity, regardless of sexual orientation, gender identity or expression, or other protected categories. 65 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Practice Guidelines for Providing Services to LGBT Youth

General Facility Operations

• All youth need to feel safe in their surroundings in order to fully benefit from facility programming. [Insert the name of your facility] shall establish and maintain a culture where the dignity of every youth is respected and all youth feel safe. Employees shall create opportunities for dialogue with youth and staff about all forms of diversity to increase tolerance and respect.

• [Insert the name of your facility] will promote the positive adolescent development of all youth in its care. Actions that support positive adolescent development include: modeling desired behavior such as demonstrating respect for all youth; reinforcing respect for differences amongst youth, encouraging the development of healthy self-esteem in youth, and helping youth manage the stigma sometimes associated with difference.

• Employees should model positive behavior when interacting with LGBT youth and remind all youth that anti-LGBT threats of violence, actual violence, or disrespectful or suggestive comments or gestures, will not be tolerated.

• [Insert the name of your facility] intends to provide a safe and non-discriminatory environment where youth can learn and grow. Employees of [insert the name of your facility] shall not prohibit or discourage communication or interaction between youth of the same sex that is not also prohibited or discouraged between youth of different sexes. Expressions of romantic or emotional attraction between youth of the same sex that do not include sexual activity are not prohibited and shall not result in punishment.

• [Insert the name of your facility] shall include LGBT-affirming books, magazines, movies, and other materials in [insert the name of your facility] library. All youth shall be made aware of these materials and shall have access to them when requested. Where possible, employees shall display materials, such as “safe zone” or “hate-free zone” posters that convey to youth that the facility maintains an LGBT–friendly environment. [Insert the name of your facility] shall ensure that employees are made aware of local LGBT resources and reach out to the LGBT community to find organizations the facility can contract with to provide supportive services to LGBT youth.

• [Insert the name of your facility] shall provide LGBT youth with access to educational, rehabilitative, recreational, and other programming on the same bases as other youth. Youth shall not be denied qualification for or access to programming based on sexual orientation or gender identity or expression.

Confidentiality

• Employees shall not disclose a youth’s sexual orientation or gender identity to other youth at the facility or to outside parties, individuals, or agencies, such as health care or social service providers or a youth’s family and friends, without the youth’s permission,

66 unless such disclosure is necessary to comply with state or federal law. APPENDICES

• Any disclosure of confidential information related to a youth’s LGBT identity shall be limited to information necessary to achieve the specific beneficial purpose of the disclosure.

• This confidentiality restriction does not prevent individuals working at [insert the name of your facility] from discussing a youth’s needs or services with other staff members or when resolving a grievance.

Intake

• Staff should be aware that LGBT youth are in various stages of awareness and comfort with their sexual orientation and gender identity. Youth intake interviewers shall sensitively inquire about fears the youth may have of being harassed in the facility, but intake workers should not directly ask youth if they are LGBT. 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 non-judgmental fashion and determine if the youth has particular concerns or needs related to being LGBT.

Youth Placement

• Placement decisions for LGBT youth shall occur as soon as possible after intake. All classification and placement decisions for youth in [insert the name of your facility] shall be individualized, based on good juvenile systems practices, and shall prioritize the youth’s physical and emotional well-being.

• Youth shall not be prohibited from having a roommate based on a youth’s actual or perceived sexual orientation. If a youth is fearful of rooming with a particular youth, he or she will be provided a different roommate or a single room, if available. This assignment will be made in accordance with classification procedures and facility safety and security needs.

• [If facility is a locked facility include this clause.] LGBT youth shall not be placed in isolation or segregation as a means of keeping them safe from discrimination, harassment, or abuse. LGBT youth shall not be treated or classified as sex offenders unless required by a court.

• Transgender youth shall not automatically be housed according to their birth sex. [Insert the name of your facility] staff shall make housing decisions for transgender youth based on the youth’s individualized needs and should prioritize the youth’s emotional and physical safety taking into account the youth’s perception of where he or she will be most secure, as well as any recommendations from the youth’s health care provider. Generally, it is most appropriate to house transgender youth based on their gender identity. If necessary to ensure their privacy and safety, transgender youth shall be provided a single room, if available.

67 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Names and Language

• Employees, volunteers, and contractors, when working with youth at [insert the name of your facility] shall use respectful language and terminology that does not further stereotypes about LGBT people.

• Employees, volunteers, and contractors of [insert the name of your facility], in the course of their work, shall not refer to youth by using derogatory language in a manner that conveys bias towards or hatred of LGBT people. In particular, employees of [insert the name of your facility] shall not imply to or tell LGBT youth that they are abnormal, deviant, or sinful, or that they can or should change their sexual orientation or gender identity.

• Transgender youth shall be referred to by their preferred name and the pronoun that reflects the youth’s gender identity, even if their name has not been legally changed. All written documentation about a transgender youth shall use the youth’s preferred name as well note the youth’s legal name recognized by the court.

Clothing and Gender Presentation

• Youth shall be allowed to dress and present themselves in a manner consistent with their gender identity. [Insert the name of your facility] shall allow youth to purchase or shall provide youth with clothing, including undergarments, appropriate for the youth’s gender identity and gender presentation.

• Grooming rules and restrictions, including rules regarding hair, make-up, shaving, etc., shall be the same in male and female units. Transgender girls shall not be required to have a male haircut, or to wear masculine clothing. Transgender boys shall not be required to maintain a female hairstyle, to wear make-up, or to wear feminine clothing.

Bathrooms and Showers

• Consistent with the facility’s reasonable and necessary security policies, [insert the name of your facility] shall provide transgender youth with safety and privacy when using the shower and bathroom and when dressing and undressing. Transgender youth shall not be required to shower or undress in front of other youth and shall be permitted to use the bathroom that is consistent with their gender identity. Where available, transgender youth shall have access to single-occupancy bathrooms and showers. Such accommodation shall be provided in a sensitive manner.

Medical and Mental Health Care

• If the youth requests assessment or treatment, [insert the name of your facility] shall provide transgender youth with access to medical and mental health care providers who are knowledgeable about the health care needs of transgender youth. [Insert the name of 68 APPENDICES

your facility] will provide all recommended transgender-related treatments in accordance with the medical and mental health assessments performed by the youth’s health care provider and will provide transportation for the youth to receive such treatments, if necessary.

• If prior to arriving at the facility a transgender youth has been receiving transgender- related medical care, such as hormone therapy or supportive counseling, [insert the name of your facility] medical staff shall consult with the youth’s medical providers and shall continue to provide the youth with all transgender-related treatments that are medically necessary according to the youth’s provider and accepted professional standards. Hormone therapy shall continue at current levels pending this consultation.

• In accordance with accepted health care practices which recognize that attempting to change a person’s sexual orientation or gender identity is harmful, [insert the name of your facility] shall not employ or contract with mental health providers who attempt to change a youth’s sexual orientation or gender identity.

• LGBT youth shall not participate in sex offender treatment or counseling unless required to do so by a court. All sex offender treatment shall not discriminate based on sexual orientation and gender identity and shall not criminalize or pathologize LGBT identity.

Search Issues [for locked facilities only]

• LGBT youth shall not be physically searched in a 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, if such search is required. [Insert the name of your facility] shall accommodate this request when possible and consistent with maintaining the security of the facility.

Procedures

Training of Employees, Volunteers, & Contractors

• In order for employees, volunteers, and contractors to have the awareness and capacity to effectively work with LGBT youth in this facility, all facility administrators, employees, volunteers, and contractors are required to attend training on working with LGBT youth. This training should teach participants: 1) the goals and requirements of the Non- discrimination Policy and Practice Guidelines Regarding LGBT Youth; 2) how to work with LGBT youth in a respectful and non-discriminatory manner; and 3) how to recognize, prevent, and respond to harassment against LGBT youth.

• All employees and administrators of [insert the name of your facility] shall receive training about LGBT youth during their orientation and as part of their continuing education requirements. These trainings shall be taught by a qualified trainer with expertise in working with LGBT youth. 69 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

• All new facility administrators, employees, volunteers, and contractors shall receive a copy of the Policy and Practice Guidelines with their orientation materials. Current administrators, employees, volunteers, and contractors shall receive a copy of the Policy and Practice Guidelines before it is to go into effect.

Policy Dissemination to Youth

• At the time of intake, [insert the name of your facility] staff shall verbally inform all youth about the facility’s Policy and Practice Guidelines, including the youth’s rights and responsibilities under this policy and the procedures for reporting violations. Each youth shall receive a copy of the Policy and Practice Guidelines [and all other policies related to grievance procedures] during intake. Additional copies of the policy shall also be provided to youth when requested.

Responsibilities of Employees and Contractors to Respond to and Report Harassment

• Employees of [insert the name of your facility] shall promptly and appropriately intervene when a youth physically, verbally, or sexually abuses or harasses another youth based on the youth’s actual or perceived sexual orientation or gender identity.

• All employees and contractors shall be required to report all incidents in violation of this policy in accordance with facility operating procedures. Failure to report an incident may result in disciplinary or other consequences.

• [Insert the name of your facility] employees have an obligation to report conduct by other employees and contractors that may be in violation of this policy to the other individual’s supervisor and the [insert the name of your facility] administration.

Reporting Procedures for Youth

• Youth shall be able to report violations of this policy following established facility grievance procedures. Grievance procedures shall protect confidentially of youth and contain other measures to prevent retaliation.

Enforcement

• Supervisory and management staff shall treat all reports of violations of this policy seriously. The [insert the name of your facility] administration shall promptly and effectively respond to grievances filed by youth and shall take swift action according to established procedures when employees or contractors report violations.

Scope

• This policy shall apply to all employees and volunteers of [insert the name of your facility], to employees or representatives of any agency providing services on behalf of

70 APPENDICES

youth at [insert the name of your facility], including but not limited to the Department of Health, Department of Education, their contractors, volunteers, and any other relevant agencies or departments which have contact with youth confined at [insert the name of your facility].

Definitions

For purposes of the policy and practice guidelines, the following definitions apply:

Bisexual A person who is emotionally, romantically, and sexually attracted to both males and females.

Contractor Any person who is employed directly by an agency or organization that has a contract or Memorandum of Understanding with the [insert the name of your facility].

Discrimination Any act, policy, or practice that, regardless of intent, has the effect of subjecting any youth to differential treatment as a result of that youth’s actual or perceived sexual orientation or gender identity.

Gay A person who primarily is emotionally, romantically, and sexually attracted to individuals of the same sex, typically in reference to boys or men.

Gender Expression The manner in which a person expresses his or her gender through clothing, appearance, behavior, speech, etc. Gender expression is a separate concept from sexual orientation and gender identity.

Gender Identity A person’s internal, deeply felt sense of being male or female, regardless of the person’s sex at birth.

Gender Identity Disorder (GID) A diagnosable medical condition for individuals who are experiencing high levels of distress because they have a strong and persistent desire to be a different sex and a persistent discomfort with their birth sex. According to accepted professional standards, treatments, such as supportive counseling, hormone therapy, and sex reassignment surgery are medically necessary for many youth or adults who have GID.

Harassment Includes, but is not limited to, name-calling; disrespectful gestures, jokes, or comments; inappropriate touching; threats of physical or emotional acts or negative consequences (including religious condemnation); physical abuse; sexual abuse, including unwanted sex acts, touching, pantomime, and threats; and emotional abuse, such as shunning or isolation. Attempting to change a youth’s sexual orientation or gender identity is also a form of harassment.

71 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Lesbian A girl or woman who primarily is emotionally, romantically, and sexually attracted to girls or women.

Sexual Orientation A person’s emotional, romantic, and sexual attraction, to individuals of the same sex or of a different sex.

Transgender A person whose gender identity (their understanding of themselves as male or female) does not correspond with their birth sex. A transgender girl is a girl whose birth sex was male but who understands herself to be female. A transgender boy is a boy whose birth sex was female but who understands himself to be male.

Youth Any person committed to the custody and care of [insert the name of your facility], any person who is subject to supervision by [insert the name of your facility], or any person who is in the custody of the state who receives services from the [insert the name of your facility].

Severability

The provisions of the Policy and Practice Guidelines shall be severable. If any provision or portion of this policy or its application to any person or circumstance is held invalid, the remainder of this policy or the application of the provision to other persons or circumstances is not affected.

72 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

BIOGRAPHIES

Report AUTHOR:

Jody Marksamer

Jody Marksamer joined the National Center for Lesbian Rights in 2003 as an Equal Justice Works Fellow, and currently is a staff attorney and the Youth Project Director. He also coordinates the Equity Project, a collaborative project between NCLR, Legal Services for Children, and the National Juvenile Defender Center, working to ensure fairness and respect for LGBT youth in juvenile courts. Jody regularly presents at national conferences on legal and policy issues affecting LGBT youth in the child welfare and juvenile justice systems. Much of his work focuses on transgender youth, and he has served as a consultant on this topic for numerous child welfare and juvenile justice agencies.

Contributing Writers

Dean Spade

In 2002, Dean Spade founded the Sylvia Rivera Law Project, where he worked as a staff attorney until 2006. He continues to stay involved with SRLP as a collective member. Dean is currently an assistant professor at Seattle University School of Law. Prior to joining the faculty at Seattle University, Dean was a Williams Institute Law Teaching Fellow at the University of California, Los Angeles Law School, teaching classes related to sexual orientation and gender identity law. He has authored numerous articles and publications on transgender and poverty issues, and lectures internationally on this topic.

Gabriel Arkles

In 2004, Gabriel Arkles joined the Sylvia Rivera Law Project, where he worked as a staff attorney through 2010. He continues his involvement with SRLP as a collective member. Gabriel recently joined the faculty of New York University School of Law as acting assistant professor. He has written extensively on gender identity issues.

73 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

Facility staff should understand that a youth who expresses his or her gender identity is not engaged in sexual misconduct. For example, when a transgender girl behaves in a feminine manner or wears feminine clothing, this is an expression of her core gender, and staff should not prevent her from doing so by characterizing it as “inappropriate sexual behavior.” The same is true of a transgender boy who dresses or behaves in a masculine manner.

Best Practice: Accept a Youth’s Gender Identity, Rather Than Attempting to Change it or Punishing a Youth for His or Her Gender Expression

Facilities should not try to change a youth’s gender identity or expression because one or more staff members views a youth’s gender expression as “inappropriate sexual behavior.” Facility policies and practices, rather than the personal views of individual staff members, should determine what kind of care youth receive.

• Facility staff should never punish transgender and gender non-conforming youth for expressing their core gender or tell youth they must wait until they are no longer at the facility to dress or behave in gender non-conforming ways.

• Group care facilities should never include as part of case plans or treatment goals that transgender or gender non-conforming youth should change their gender identity or must conform to gender stereotypes.

• When a youth’s treatment plan or goals are developed by outside contractors, group care facilities should carefully review the youth’s file to ensure that the youth’s gender expression is not labeled “inappropriate sexual behavior.”

Ensuring Transgender and Gender Non-Conforming Youth Are Not Labeled “Sexually Abusive” Because of their Non-Conforming Gender Identity or Expression

Problem: Inappropriate Labeling as Sexual Predators

Some facilities have treated transgender or gender non-conforming youth as if they were a sexual threat to other youth and segregated them or inappropriately labeled these young people as “sex offenders”—even though the youth had not engaged in any acts that could be categorized as sexually abusive or predatory. This unfair punishment and stigmatization can be severely traumatizing and may require these youth to carry a sex offender label with them for the rest of their lives.

Solution: Do not label or treat transgender and gender non-conforming youth as “sexually abusive” merely because of their gender identity or expression.

Being transgender or gender non-conforming does not make a person a sexual predator. Transgender and gender non-conforming youth are no more likely to have psychological

41 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

characteristics that would make them less capable of controlling their sexual urges than gender conforming youth. In fact, studies indicate that transgender youth are at higher risk of being sexually abused in group care facilities.5

Best Practice: Do Not Place Transgender and Gender Non-conforming Youth in “Sex-Offender” Treatment Programs

Transgender and gender non-conforming youth as a group do not present a danger to other youth because of their gender difference or their sexual orientation.

• Facilities should not isolate or segregate these youth based on the misconception that transgender and gender non-conforming youth are sexual predators.

• Unless required to do so by a court, facilities should not classify or label transgender or gender non-conforming youth as sex offenders.

• Similarly, unless required to do so by a court, facilities should not require transgender and gender non-conforming youth to participate in programs focused on rehabilitating youth who engage in sexually abusive behaviors.

Protecting the Privacy, Dignity, and Safety of Transgender and Gender Non-Conforming Youth in Bathrooms, Showers, and During Searches

Problem: Lack of privacy and safety in bathrooms, showers, and during searches.

Transgender and gender non-conforming youth are at risk of harassment and assault when using a bathroom, shower, or in other situations where they are required to undress in front of others with a different gender identity. This risk is heightened in group care facilities that provide little or no privacy for changing clothes and showering, such as when facilities require all youth housed in a particular unit to shower in each others’ presence. In addition to physical risks, for some youth this is so emotionally traumatic that the youth avoids using the bathroom or shower altogether, which can cause severe discomfort and medical and hygiene problems.

In some secure facilities, transgender and gender non-conforming youth have been repeatedly strip-searched for non-legitimate reasons, such as to humiliate the youth or to show other staff members the youth’s body. Often these strip searches have occurred in front of other youth, adding to the humiliation and exposing the youth to risk of further abuse.

Solution: Ensure the privacy, safety, and dignity of transgender and gender non-conforming youth in bathrooms, showers, when changing clothes, and during physical searches.

Facilities must ensure privacy, safety, and dignity for transgender and gender non-conforming youth in all situations involving nudity, including physical searches. Transgender youth should not be required to use the bathroom, shower, or undress in front of youth with a different gender identity.

42 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

I refused to use the group shower with the 13 boys in my unit because I was afraid they would assault me. [The facility] wouldn’t let me use it by myself so I just didn’t shower until the judge ordered them to let me shower alone.6

–MARIAH, a transgender young woman who was detained in a boy’s detention facility

Best Practice: Provide Transgender and Gender Non-conforming Youth with Safe Access to Bathrooms

In order to protect transgender youth from physical and emotional harm, respect their core gender, and avoid liability, all group care facilities must provide transgender youth with safe access to bathrooms. Facilities should never force transgender youth to use multi-user bathrooms that do not match their core gender.

• Generally, group care facilities should allow transgender youth to use the bathroom that matches their gender identity, without any restrictions.

• If a transgender or gender non-conforming youth feels vulnerable to abuse or harassment in either a girls’ or boys’ bathroom, or if a transgender youth is housed in a single-sex facility that does not correspond with the youth’s gender identity, the facility should permit the youth to access a single-user bathroom, if available, or allow the youth to use the multi-user bathroom in private. However, facilities should not require a transgender youth to use a single-user bathroom if he or she does not wish to do so.

• If necessary to ensure privacy and safety, a transgender or gender non-conforming youth should be permitted to use a bathroom that is usually reserved for staff.

Best Practice: Provide Transgender and Gender Non-conforming Youth with Privacy and Safety in Shower Facilities

To avoid subjecting a transgender youth to unnecessary risk of physical and emotional harm, group care staff should work with the youth to determine the best solution for showering consistent with his or her gender identity and in keeping with safety concerns. Group care facilities should never force transgender youth to use shower facilities that would require them to undress in front of other youth. Appropriate solutions include:

• Allowing a transgender youth to use a single-user shower facility.

• Installing privacy barriers in multi-user showers to create private showering spaces.

• Permitting a transgender youth to use the shower at a different time than other youth.

• Permitting a transgender youth to use a shower otherwise reserved for staff. 43 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Best Practice: Conduct Strip Searches of Transgender and Gender Non-conforming Youth in a Respectful and Dignified Manner

While there can be legitimate security-related reasons for staff in secure facilities to strip search youth in certain situations, facilities must conduct these searches in a manner that affords the greatest degree of privacy, safety, and dignity. Strip searches of youth should only be conducted if there is a reasonable suspicion that the youth may be concealing contraband, and then only after approval of a supervisor. Even when conducted in the most respectful manner possible, strip searches are extremely unpleasant and humiliating experiences. Because their bodies do not match their core gender, transgender youth experience higher levels of discomfort than other youth when required to undress in front of others, and they are at high risk of exploitation during strip searches.

• Searches of transgender youth should always be conducted in private, out of sight of other youth and staff members who are not necessary for the search.

• Transgender youth should be able to choose the gender of the person conducting the search and should have the option of having a second staff member present or of having a nurse or other health professional conduct or be present for the search.

• Staff should receive training on appropriate methods for conducting respectful searches of transgender youth.

• Searches should never be conducted for non-legitimate purposes, such as to examine a youth’s genitalia, to punish, demean, or humiliate a youth, or for the amusement of staff members.

Provide Appropriate and Adequate Health Care for Transgender Youth

Problem: Unmet transgender-related health care needs.

Transgender and gender non-conforming youth in group care facilities are often denied supportive counseling, appropriate evaluations, and other medically necessary transgender-related treatments. In some cases, facilities have even refused to fill prescriptions from a transgender youth’s treating physician. Transgender youth who are denied appropriate treatment are at risk for serious negative health and social consequences, including depression, suicide attempts, and self-treatment (using street hormones and engaging in other medically unsupervised activities for gender transition). In addition, when a facility fails to meet a transgender youth’s medical needs, abruptly stops a transgender youth’s hormone treatment, or refuses to provide the youth with other medically necessary care, the facility is at risk of liability for violating the youth’s right to adequate medical care.

Solution: Provide transgender and gender non-conforming youth with access to health care providers who are knowledgeable about the medical needs of transgender youth and ensure these youth receive the recommended transgender-related care.

Group care facilities have a legal responsibility to provide adequate medical and mental health care to all youth in their custody. Many transgender and gender non-conforming youth have specific 44 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth medical and mental health care needs because their bodies do not match their gender identity. It is essential that group care facilities are capable of identifying when a transgender or gender non-conforming youth may be in need of health services and are knowledgeable about how to help these youth get access to the care they need. While it is not a staff member’s responsibility to determine what type of treatment a youth may need, if a youth says they are transgender, is distressed about their gender, or has a prior gender identity disorder (GID) diagnosis, the group care facility should arrange an evaluation with a mental health provider with appropriate expertise in this area. If a transgender or gender non-conforming youth requests it, facilities should also provide supportive counseling either on-site or with local providers.

Best Practice: Ensure That Transgender Youth Receive Recommended Medical Treatments

Transgender youth have highly individualized healthcare needs; what specific medical treatments an individual youth needs, and when they need it, is a decision that can only be made by the youth, the youth’s family, and his or her medical providers.

• Group care facilities should provide transgender youth with access to medical providers who have specialized training and competence in the diagnosis and treatment of gender identity disorders as well as expertise in adolescent development. These providers can conduct individualized assessments to determine whether hormone treatment or other forms of care are medically necessary for a particular youth.

• Once a youth has undergone an assessment, group care facilities should make arrangements for the youth to receive the recommended transition-related treatments. Living consistently with one’s gender identity is a recognized form of therapeutic treatment and requires facilities to refer to youth by their preferred names and allow them to express their gender through clothing and hairstyle.

• When necessary, staff members should assist a youth in getting consent for treatment from the custodial agency or the court.

Best Practice: Ensure That Existing Transgender-Related Treatment Continues After a Youth Arrives at a Facility

Some transgender youth arrive at a group care facility already undergoing transgender-related medical treatments. For these youth, group care facilities should look to the youth’s treating clinicians for treatment planning and should never abruptly cut off hormone treatment because facility medical staff are unfamiliar with transgender medical care. In order to ensure a youth’s treatment is not interrupted:

• Non-secure facilities should continue to bring the youth to his or her health care appointments and assist the youth in getting and taking his or her prescription medications.

45 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

• When secure facilities have their own medical staff, a medical staff member should consult with the youth’s previous clinicians and continue to provide the youth with all transition-related treatments that are medically necessary. If a secure facility does not have medical staff, or if the staff is not experienced in transgender care, the facility should contract with the youth’s prior clinicians or other medical providers who have appropriate knowledge and experience.

For more information about transgender-related medical care, see Chapter 1.

Supporting Transgender and Gender Non-Conforming Youth in Off-Site Educational Programs

Problem: Barriers to a safe and non-discriminatory school environment.

Transgender and gender non-conforming youth often face harassment, abuse, and discrimination at school. Many transgender youth are unable to access safe bathrooms or are disciplined for wearing clothing or accessories that match their core gender. When teachers do not acknowledge, respect, and support a youth’s gender identity or if they do not promptly and appropriately respond to harassment and abuse, transgender and gender non-conforming youth are at high risk of dropping out, getting kicked out, or receiving poor grades.

Solution: Work with school administration to ensure that transgender and gender non-conforming youth are safe and supported when attending off-site schools.

When transgender and gender non-conforming youth attend off-site schools, group care facilities have a legal responsibility to respond to any problems these youth experience while at school by working with school administration to ensure safety and support.

Best Practice: Appropriately respond when transgender and gender non-conforming youth attending off-site schools experience harassment or abuse

It is essential for transgender and gender non-conforming youth in group care to be able to complete their education in a safe, respectful, and non-discriminatory environment.

• Facility staff members should be familiar with local school non-discrimination laws and policies and the process for making complaints of harassment.

• In order to help prevent potential school problems, group care facilities should meet with a school to discuss the school’s responsibility to provide an education free from discrimination and a safe learning environment for all students, prior to enrolling a transgender or gender non-conforming youth.

• Staff should regularly and proactively ask transgender and gender non-conforming youth if they are facing harassment at school; are unable to access appropriate bathrooms, locker rooms, or physical education classes; or are experiencing other issues that are interfering with their schooling, and then assist youth who are having problems by advocating with school officials until the situation is resolved. 46 Chapter FOUR: Best Practices for Working with Transgender and Gender Non-Conforming Youth

• Staff should work with the school to ensure that youth are able to dress and groom in accordance with their gender identity.

• If necessary, staff should assist youth with negotiating with the school about the use of gender-segregated facilities, such as restrooms, locker rooms or showers, ensuring that a transgender youth does not have to use facilities that do not match his or her gender identity.

• Transgender and gender non-conforming youth should be able to participate in physical education classes according to their gender identity. As gym classes and sports teams are often segregated by sex, youth may need assistance from facility staff in negotiating their ability to participate.

Connecting Transgender and Gender Non-Conforming Youth to Supportive Resources, Programs, and Services

Problem: Inability to access supportive community services.

Many transgender and gender non-conforming youth in group care facilities are unable to access supportive services and programs because facilities cut off connections to their networks of support when they enter the facility or fail to introduce them to locally available supportive services or programs. Transgender and gender non-conforming youth may become depressed and isolated if they are unable to access resources and programs to help provide them with support, guidance, and validation.

Solution: Inform transgender and gender non-conforming youth about supportive local and national resources and programs and assist youth in accessing these services.

Many cities have support groups, social programs, and health care centers for transgender people. Transgender young people can get valuable information, support, and guidance by accessing these services. In addition, these services help transgender youth form strong positive community connections which contributes to their healthy adolescent development.

Best Practice: Help Transgender and Gender Non-conforming Youth Access Supportive Programs in the Community, or Bring These Services to the Youth

Group care facilities should be knowledgeable about local transgender support services and resources and help youth in their care to access these services.

• Facility staff should ensure that the transgender and gender non-conforming youth are aware of local transgender resources and have the necessary transportation and support so they can participate. In secure facilities, this might require bringing these services and programs to the youth.

47 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

• Facility staff should be familiar with local non-discrimination laws and help a youth reach a legal advocacy organization if the youth is subject to discrimination outside the facility. Transgender youth may also need legal help or advice to get their name legally changed.

See Appendix B for a list of resources for transgender and gender non-conforming youth.

By following the easy-to-implement approaches and best practices described above, group care facilities will be able to address and prevent many of the common problems transgender and gender non-conforming youth face. In addition, facility staff will be better prepared to respond to the safety, programmatic, and health care needs of transgender and gender non-conforming youth in a manner that is respectful, effective, and legally sound.

Endnotes

1 NCLR, personal interview with transgender youth (May 8, 2006) (on file with author).

2 Some examples of alternate pronouns that are gender neutral and preferred by some gender non-conforming youth include: “ze” instead of “he” or “she” and “hir” instead of “his” or “her,” or “they” and “their” used in reference to one person.

3 Declaration of Robert J. Bidwell at ¶¶ 36, 37, 51, & 52, R.G. v. Koller, 415 F.Supp.2d 1129 (D. Haw. 2006) (No. 05- 566).

4 Testimony of Cyryna Pasion, an 18-year-old transgender girl who was sexually harassed and assaulted, and continuously threatened with rape by other wards while incarcerated at the Hawai’i Youth Correctional Facility. National Prison Rape Elimination Commission Hearing, written transcription of oral testimony, at 9-10 (June 1, 2006), available at http://www.nprec.us/Docs/Boston_SurvivorTestimony_Pasion.pdf.

5 National Prison Rape Elimination Commission, Report at 148 (June 2009), available at http://www.ncjrs.gov/ pdffiles1/226680.pdf.

6 NCLR, personal interview with transgender youth (Feb 28, 2003) (on file with author). 48 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

CHAPTER FIVE: Best Practices for Administrators for Changing Culture, Adopting Practice Guidelines and Policies, and Training and Evaluating Staff

49 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Chapter FIVE: Best Practices for Administrators for Changing Culture, Adopting Practice Guidelines and Policies, and Training and Evaluating Staff

I felt comfortable in my group home because they allowed me the freedom to go through the process of discovering my identity, and never told me I was wrong, or forced me to be somebody I wasn’t. We were always taught that hate was wrong, in whatever form it came in. When my beliefs came into conflict with staff members, they didn’t push their own agenda. Both the staff and the youth went through diversity training. I was allowed to wear what I felt comfortable in, without questions. When I changed my name, everyone called me by my new name and used the correct pronouns.1 — Kevin, a transgender young man

Administrators can take several steps to ensure the health, welfare, and safety of transgender and gender non-conforming youth in their group care facilities. This chapter provides specific guidance to facility administrators to assist them in providing leadership, developing and implementing policy and practice guidelines, and instituting staff training and evaluation.

Providing Leadership

First, to ensure that transgender and gender non-conforming youth receive appropriate care and treatment, administrators need to provide leadership at their facility on this issue. Administrators should clearly articulate what they expect from staff members and hold staff accountable when transgender or gender non-conforming youth face discrimination or are mistreated. Clear administrative leadership is essential in order to create a culture in which the worth and dignity of every person is respected. Administrators must ensure that all facility staff members—from the director to the line staff—model values of acceptance, fairness, and respect when working with transgender and gender non-conforming youth.

To lead the way in creating and reinforcing this culture, administrators should take these concrete steps, thus modeling the expected approach themselves.

• Call transgender youth by their preferred names and pronouns, and require other staff to do the same.

• Require staff to respond immediately and adequately to all harassment and abuse.

50 CHAPTER FIVE: Best Practices for Administrators for Changing Culture, Adopting Practice Guidelines and Policies, and Training and Evaluating Staff

• Use staff meetings and other communication mechanisms to convey to staff the expectation that they are to treat all youth, including transgender and gender non- conforming youth, respectfully and in a fair and non-discriminatory manner.

• Display posters that inform youth the facility is a “hate-free space” and task staff with acquiring LGBT supportive books, magazines, and videos that can be placed in common areas of the facility, such as reading rooms or libraries.

• Regularly engage in dialogues with facility staff and youth about respecting differences and understanding the harms of harassment and bias.

Developing, Adopting, and Posting Written Non-discrimination Policies and Practice Guidelines

To make facility rules and expectations clear, administrators of group care facilities should develop and implement non-discrimination policies and comprehensive practice guidelines that incorporate the best practices detailed in the previous chapter. Policies tell staff what the rules are, and practice guidelines help to reinforce these policies.

Non-discrimination policies

Group care facilities, and the child welfare and juvenile justice departments that oversee these facilities, should adopt written policies that prohibit harassment and discrimination on the basis of actual or perceived sexual orientation and gender identity, as well as race, ethnicity, gender,

A Sample Non-discrimination and Harassment Policy Might Read:

“It shall be the policy of the ABC Group Care Facility to maintain and promote a safe environment for all youth in the facility’s care. All ABC staff, volunteers, and contract providers are prohibited from engaging in any form of discrimination against or harassment of youth on the basis of actual or perceived race, ethnicity, immigration status, national origin, sex, disability, sexual orientation, gender identity, and gender expression. ABC is committed to providing a healthy and accepting setting for all youth placed in its facilities by training staff and educating youth to respect each other. Any discrimination against or harassment of youth, including by other youth, will not be tolerated. The provision of services to lesbian, gay, bisexual, transgender, and gender non-conforming youth in facility programs shall be free of institutional and personal bias and shall be based on the attached practice guidelines and procedures. ABC staff shall recognize and address the individual needs of each youth and shall apply ABC policies and practices fairly to all youth in our facilities. If you have experienced harassment or discrimination in violation of this policy, please file a grievance according to facility policy. All grievances will be reviewed and investigated immediately.”

51 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

religion, disability, and other differences. These policies should apply to all employees, volunteers, and contractors who have contact with youth in the facility. Non-discrimination policies should contain written procedures for filing grievances based on violations of the policy, and these procedures should explain how complaints will be investigated and resolved. Facilities should also post their non-discrimination policy in locations where both the staff and youth in the facility can see it and provide youth and staff with copies during orientation. By informing all staff and youth of facility policies, and by providing a clear avenue for youth to file grievances, administrators convey that this is a serious concern and create a specific feedback mechanism for determining whether problems are occurring.

Practice Guidelines

In order to further assist staff members in serving transgender and gender non-conforming youth and to provide guidance on what it means to not discriminate under the facility’s policy, administrators should also adopt practice guidelines and procedures for the care of transgender and gender non-conforming youth. Written practice guidelines clarify what is the established and expected facility protocol for handling specific situations that arise when working with transgender and gender non-conforming youth. Administrators can use the best practice recommendations described in the previous chapter as a foundation for creating practice guidelines for this population. Facilities should include copies of these practice guidelines in all written handbooks and orientation materials they give to youth entering the facility. They should also include these documents in all handbooks and orientation materials given to new employees, contractors, and volunteers.

See Appendix C for a model policy and practice guidelines for serving youth who are transgender and gender non-conforming (as well as youth who are lesbian, gay, or bisexual).

Providing Training to Staff

Training is an essential step to ensure that staff members understand the requirements of the new policy and guidelines and have the tools to put the guidelines into everyday practice. All staff members and administrators of group care facilities should receive training about transgender and gender non-conforming youth during orientation and as part of continuing education. Administrators should work with facility training staff to obtain or develop a training curriculum that, at a minimum, covers the following topics: 1) the goals and requirements of the facility’s non- discrimination policy and practice guidelines regarding transgender and gender non-conforming youth; 2) how to serve transgender and gender non-conforming youth in a respectful, fair, and non-discriminatory manner; and 3) how to recognize, prevent, and respond to harassment and violence against these youth. These trainings should be taught by professional trainers with expertise in issues affecting transgender and gender non-conforming youth, preferably in the state care context. Administrators also should work with trainers to incorporate transgender issues into general trainings for staff members. Trainers can do this by using transgender and gender non-

52 CHAPTER FIVE: Best Practices for Administrators for Changing Culture, Adopting Practice Guidelines and Policies, and Training and Evaluating Staff conforming youth as examples in training scenarios or by including concerns facing transgender and gender non-conforming youth in trainings that cover youth safety, substance abuse, or other facility policies.

Including Adherence to Transgender Policies and Practices in Staff Evaluation Procedures

Administrators should include a way to measure how well staff members follow the facility’s adopted policies and practice guidelines in staff evaluation procedures in order to hold staff members accountable. Facilities should inform staff members that this will be part of their evaluation process and that administrators will take into account their adherence to these policies when making determinations related to promotion, disciplinary action, and termination. Staff members who are not treating transgender and gender non-conforming youth appropriately should receive additional training, increased supervision, and any other actions necessary to ensure future compliance with the policy.

Conclusion

Through the leadership of administrators, the development and implementation of policy and practice guidelines, and the provision of training and evaluation, group care facilities can greatly improve outcomes for transgender and gender non-conforming youth. At a minimum, transgender and gender non-conforming youth must be safe and treated in a non-discriminatory manner. Ideally, however, these steps will help group care facilities to establish an institutional culture where all youth are treated with dignity and respect, with a focus on helping youth to grow into healthy and independent adults. Ultimately, that is what all young people need.

53 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Endnotes

1 NCLR, personal interview with transgender youth (May 3, 2006) (on file with author).

54 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

APPENDICES

55 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Appendix A: Common Terms and Definitions

This glossary provides an overview of some common terms used by many transgender and gender non-conforming people and their allies. It is meant to be a general guide. It would be impossible to create a glossary that included every potential word people might use to describe themselves, especially since these terms are always evolving. For that reason, you should refer to any person using the terms and pronouns they prefer.

Androgynous: having or displaying characteristics, feelings, or behaviors that are both feminine and masculine.

Assigned birth sex: the sex, male or female, originally noted on an individual’s birth certificate. May also be referred to as “birth sex.”

Bisexual: a person who is emotionally, romantically, and sexually attracted to both men and women.

Butch: a term some individuals use to describe their masculine gender identity or expression.

Coming out: the process of disclosing one’s sexual orientation or gender identity to others. Coming out is not a discrete event but a lifelong process.

Femme: a term some individuals use to describe their feminine gender identity or expression.

FTM: a person who transitions from female to male, meaning a person who was assigned female at birth, but identifies and lives as a male. Also known as a “transgender man” or “transgender boy.”

Gay: a person whose emotional, romantic, and sexual attractions are primarily for individuals of the same sex, typically in reference to men. In some contexts, it is still used as a general term for gay men and lesbians.

Gender expression: a person’s expression of their gender identity, including their characteristics and behaviors such as appearance, dress, mannerisms, speech patterns, and social interactions.

Gender identity: a person’s internal, deeply felt sense of being male or female, or something other or in-between. Everyone has a gender identity.

Gender Identity Disorder (GID): a diagnosable medical condition in which an individual has a strong and persistent cross-gender identification, which is the desire to be, or the insistence that one is, of the opposite sex, as well as a persistent discomfort about one’s assigned birth sex or a sense of inappropriateness in the gender role of that sex. To be diagnosed, the individual must be evidencing clinically significant distress or impairment in social, occupational, or other important areas of functioning.

Gender non-conforming: having or being perceived to have gender characteristics and/or behaviors that do not conform to traditional or societal expectations. Gender non-conforming people may or may not identify as LGBT.

56 APPENDICES

Gender roles: social and cultural beliefs about appropriate male or female behavior.

Genderqueer: a term of self-identification for people who do not identify with the restrictive and binary terms that have traditionally described gender identity (for instance, male or female only).

Hormone Therapy (also Hormone Replacement Therapy, HRT, Hormonal Sex Reassignment): administration of hormones to affect the development of secondary sex characteristics that are consistent with one’s gender identity.

Intersex: a term used to refer to an individual born with a reproductive or sexual anatomy that does not conform exclusively to male or female norms in terms of physiological sex (this may include variations of genetics, genital or reproductive structures, or hormones). According to the Intersex Society of North America (ISNA)—an organization that advocates and educates about intersex concerns—about one in every 2,000 children are born intersex.

LGBT: common acronym for lesbian, gay, bisexual, and transgender—persons who despite their differences, are often discriminated against in similar ways. Sometimes written to include Q for questioning and/or queer, I for intersex, A for ally, and/or TS for two-spirit. May also be written as GLBT.

Lesbian: a woman whose emotional, romantic, and sexual attractions are primarily for other women.

MTF: a person who transitions from male to female, meaning a person who was assigned male at birth, but identifies and lives as a female. Also known as a “transgender woman” or “transgender girl.”

Non-discrimination policy: a written policy that explicitly includes sexual orientation and gender identity and that prohibits anti-LGBT harassment and discrimination.

Preferred name: the name an individual prefers to be called. If you are unsure what name to use, ask to clarify what name the individual uses.

Preferred pronoun: the gender pronoun that an individual prefers. If you are unsure what pronoun to use, ask to clarify what pronoun the individual uses.

Queer: a historically derogatory term for a gay man, lesbian, or gender non-conforming person. The term has been widely reclaimed, especially by LGBT youth, as a positive social and political identity. It is sometimes used as an inclusive, or umbrella, term for all LGBT people. Queer is also used as a term of self-identification by people who do not identify with more restrictive, binary terms. Some LGBT community members still find this term offensive.

Questioning: an active process in which a person explores their own sexual orientation and/or gender identity and questions the cultural assumptions that they are heterosexual and/or gender conforming. Many LGBT people go through this process before “coming out.” Not all people who question their identities end up self-identifying as LGBT.

57 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Self-identification: one’s own identification of one’s gender identity or LGB sexual orientation. Increasingly, LGBT youth are self-identifying during pre-adolescence or early adolescence.

Sex reassignment: medical procedures that change one’s body to make it conform to one’s gender identity. Contrary to popular belief, there is not one surgery but rather various procedures that a person might undergo, depending on their own medical needs determined with a health care provider.

Sexual orientation: a term describing a person’s emotional, romantic, and sexual attraction, whether it is for members of the same sex or a different sex. More appropriate than “sexual preference.”

Stud: a term that some masculine women use to describe themselves in regards to their sexual orientation and gender identity. Most prevalent in urban youth-of-color communities. Also known as “ag” or “aggressive.”

Transgender: a term that can be used to describe people whose gender expression is non- conforming and/or whose gender identity is different from their assigned sex at birth.

Transition: the time period when a transgender person starts living as the gender they identify as. Often includes a change in style of dress, selection of new name, a request that people use the correct pronoun, and possibly hormone therapy and/or surgery.

Transphobia: fear of, hatred of, aversion to, or discrimination against transgender people or people who are gender non-conforming.

Transsexual: a term for someone whose gender identity is different from their assigned birth sex. Often transsexual people undergo medical treatments to change their physical body to match their innate sense of their gender identity through hormone treatments and/or surgery. Many transsexual people refer to themselves as transgender.

Two-Spirit: an English term that emerged in 1990, out of the third annual inter-tribal Native American/First Nations gay and lesbian conference to describe Native Americans who fulfill one of many mixed gender roles found traditionally among Native Americans and Canadian First Nations indigenous groups. The mixed gender roles encompassed by the term historically included wearing the clothing and performing the work associated with both men and women.

58 APPENDICES

Appendix B: List of Resources

Support Organizations for Transgender and Gender Non-Conforming Youth

Advocates for Youth www.AdvocatesForYouth.org Advocates for Youth is the only organization that works both in the United States and internationally with a sole focus on adolescent reproductive and sexual health, providing information and peer support to transgender youth. Their website includes listings of resources and articles.

CenterLink www.lgbtcenters.org The National Association of LGBT Community Centers’ website allows users to search for LGBT community centers in your city or state. Centers are the primary point of contact for people coming out and seeking LGBT health services, community information and referrals.

FIERCE! www.Fiercenyc.org FIERCE! is a community organizing project for Transgender, Lesbian, Gay, Bisexual, Two Spirit, Queer, and Questioning (TLGBTSQQ) youth of color in New York City.

Gay, Lesbian and Straight Education Network (GLSEN) www.glsen.org GLSEN, the Gay, Lesbian and Straight Education Network, is the leading national education organization focused on ensuring safe schools for all students. GLSEN envisions a world in which every child learns to respect and accept all people, regardless of sexual orientation or gender identity/expression.

Gay-Straight Alliance Network (GSA Network) www.gsanetwork.org GSA Network is a youth-led organization that empowers youth to fight homophobia and transphobia in schools through Gay-Straight Alliances. GSA Network advocates on behalf of transgender and gender non-conforming youth through lobbying, policy advocacy, education programs, and grassroots organizing.

National Youth Advocacy Coalition www.nyacyouth.org The National Youth Advocacy Coalition is a capacity-building organization that advocates for and with LGBTQ young people in an effort to end discrimination against these youth and to ensure their physical and emotional well-being.

OutProud www.OutProud.org OutProud, the National Coalition for Gay, Lesbian, Bisexual & Transgender Youth, serves the needs of these youth by providing advocacy, information, resources and support.

Survivor Project www.SurvivorProject.org The Survivor Project is an organization that is dedicated to addressing the needs of trans and intersex survivors of sexual assault, rape, or domestic violence through caring action, education, and expanding access to resources. Their website includes educational resources, tips for services providers, and survivors’ stories.

Youth Guardian Services www.Youth-Guard.org Youth Guardian Services is a youth-run organization that provides support services on the Internet to LGBTQ and ally youth.

59 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Support Organizations for Families

Family Acceptance Project FamilyProject.sfsu.edu The Family Acceptance Project (FAP) is a community research, intervention, education and policy initiative that studies how family acceptance and rejection affects the health, mental health and well-being of their LGBT children. FAP is developing evidence-based interventions to help ethnically diverse families decrease rejection and increase support of LGBT children and adolescents, decreasing health and mental health risks and promoting their well- being. FAP develops educational materials and resources for families and providers to help families support their LGBT children, and publishes research on LGBT young people and families.

Parents, Families & Friends of Lesbians and Gays (PFLAG) - TNET www.pflag.org The purpose of this special affiliate of PFLAG is to promote the health and well-being of transgender persons, their families and friends through: support, to cope with an adverse society; education, to enlighten an ill-informed public; and advocacy, to end discrimination and to secure equal civil rights. PFLAG-TNET focuses on support for transgender people and their parents, families, and friends; education on transgender facts and issues; and advocacy for equal rights for the transgender community at local and national levels.

Helplines

GLBT National Help Center www.GLBTNationalHelpCenter.org The GLBT National Help Center is dedicated to meeting the needs of this community and those questioning their sexual orientation or gender identity. The hotline offers free and confidential peer-counseling, information and local resources for cities and towns throughout the United States. The hotline offers counsel to callers of all ages about coming out issues, relationship concerns, HIV/AIDS anxiety, safer-sex information and more.

The Trevor Project www.TheTrevorProject.org The Trevor Project operates the only nationwide, around-the-clock crisis and suicide prevention helpline for lesbian, gay, bisexual, transgender and questioning youth. The Trevor Helpline can be reached at 866.4.U.TREVOR

Transgender Health Care Resources

Gay and Lesbian Medical Association www.glmA.org Gay and Lesbian Medical Association (GLMA) works to ensure equality in health care for lesbian, gay, bisexual and transgender (LGBT) individuals and health care professionals. GLMA provides information for transgender people on accessing quality health care and hosts a referral network of GLMA members and LGBT-friendly clinicians across the country.

Gender Identity Research and Education Society www.gires.org.uk The aim of this United Kingdom website is to inform a wide public of the issues surrounding gender identity and transsexualism. It is also a resource for gender variant people and their families, the medical and other professionals that provide their care, health authorities, members of Parliament and other policy makers.

National Coalition for Lesbian, Gay, Bisexual and Transgender Health www.lgbthealth.net/stage The National Coalition for Lesbian, Gay, Bisexual and Transgender Health is committed to improving the health and well-being of lesbian, gay, bisexual and transgender individuals and communities through public education, coalition building, and advocacy that focuses on research, policy, education and training.

60 APPENDICES

Trans-Health.com www.Trans-Health.com Trans-Health is a trans community electronic journal on trans health issues. Trans-Health is a volunteer-run website providing information on health and fitness for trans people.

TransGenderCare www.TransGenderCare.com TransGenderCare contains a large archive of health information that Dr. Carl Bushong and associates of the Tampa Stress Center have written and compiled from years of providing medical, psychological, and general health services to the transgender community.

Transgender Health Channel www.lgbthealthChannel.com/Transgender/Index.shtml This website provides an overview of transgender health issues and includes information on health care guidelines and Gender Identity Disorder. The website’s content is developed and monitored by physicians.

Vancouver Coastal Health: Transgender Health Program www.vch.ca/TransHealth The Transgender Health Program oversees the development of guidelines for care, with program staff and contracted specialists assisting with review of best practice research and standards developed by other transgender health programs. In addition, this website provides materials for transgender youth and their families explaining transgender medical care and what to expect.

World Professional Association for Transgender Health (WPATH) www.WPATH.org WPATH is an international, interdisciplinary organization of professionals from fields of psychiatry, endocrinology, surgery, law, psychology, sociology, and counseling. WPATH publishes the internationally recognized Standards of Care for Gender Identity Disorders, an evolving consensus on best practice in the provision of medical treatments for individuals with Gender Identity Disorder (GID).

Legal and Advocacy Organizations

Advocates for Informed Choice www.aiclegal.org AIC promotes the civil rights of children born with variations of sex anatomy. AIC is the first organization in the country to undertake a coordinated strategy of legal advocacy for the rights of children with intersex conditions or DSDs (disorders of sex development).

American Civil Liberties Union (ACLU) – Lesbian, Gay, Bisexual, and Transgender Project www.aclu.org/lgbt-Rights The ACLU’s LGBT Project fights discrimination and moves public opinion through the courts, legislatures and public education across the following issue areas: relationships, youth and schools, parenting, gender identity and expression, and discrimination in employment and housing.

Equity Project www.EquityProject.org The Equity Project is an initiative to ensure that lesbian, gay, bisexual and transgender (LGBT) youth in juvenile delinquency courts are treated with dignity, respect, and fairness. The Equity Project examines issues that impact LGBT youth during the entire delinquency process, ranging from arrest through post-disposition.

Gay & Lesbian Advocates & Defenders’ Transgender Rights Project www.glad.org Through the Transgender Rights Project (TRP), Gay and Lesbian Advocates and Defenders puts litigation, legislative, and educational assets to work in a focused way to establish clear legal protections for the transgender community.

61 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Lambda Legal www.LambdaLegal.org Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.

National Center for Lesbian Rights www.nclrights.org NCLR is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education. NCLR’s Youth Project offers training, resources, and technical assistance to attorneys and advocates who represent LGBTQ youth. NCLR provides free legal information to LGBTQ youth and their families through their toll-free helpline.

Sylvia Rivera Law Project www.srlp.org The Sylvia Rivera Law Project (SRLP) works to guarantee that all people are free to self-determine their gender identity and expression, regardless of income or race, and without facing harassment, discrimination, or violence. SRLP is a collective organization founded on the understanding that gender self-determination is inextricably intertwined with racial, social and economic justice.

The National Center for Transgender Equality www.TransEquality.org The National Center for Transgender Equality (NCTE) is a social justice organization dedicated to advancing the equality of transgender people through advocacy, collaboration and empowerment.

The National Gay and Lesbian Task Force www.TheTaskForce.org/Issues/Transgender The mission of the National Gay and Lesbian Task Force is to build the grassroots power of the LGBT community by training activists, equipping state and local organizations with the skills needed to organize broad-based campaigns to defeat anti-LGBT referenda and advance pro-LGBT legislation, and building the organizational capacity of the movement.

Peter Cicchino Youth Project www.UrbanJustice.org The Peter Cicchino Youth Project assists LGBT young people in New York City with benefits, housing, discrimination, and healthcare issues. Call 1-800-LGBT-LAW to make an appointment or attend a clinic at the Ali Forney Center or Streetworks. Services are administered in English.

The Transgender Law and Policy Institute www.TransgenderLaw.org The TLPI brings experts and advocates together to work on law and policy initiatives designed to advance transgender equality. The TLPI provides legal, medical, and social science resources to attorneys and others advocating on behalf of transgender individuals. The TLPI makes freely available litigation, legislative, and education advocacy materials for use by other advocates for transgender people.

The Transgender Law Center www.TransgenderLawCenter.org TLC is a civil rights organization that utilizes direct legal services, public policy advocacy, and educational opportunities to advance the rights and safety of transgender youth and adults. TLC connects transgender people and their families to culturally competent legal services, increases acceptance and enforcement of laws and policies that support California’s transgender communities, and works to change laws and systems that fail to incorporate the needs and experiences of transgender people. TLC’s services are provided in California.

Transgender Legal Defense and Education Fund www.TransgenderLegal.org TLDEF is committed to ending discrimination based upon gender identity and expression and to achieving equality for transgender people through public education, test-case litigation, direct legal services, community organizing and public policy efforts. TLDEF’s services are provided in New York. 62 APPENDICES

Additional Resources for Group Care Facilities

Hidden Injustice: Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts Legal Services for Children, National Juvenile Defender Center, National Center for Lesbian Rights, 2009. Hidden Injustice represents the first effort to examine the experiences of LGBT youth in juvenile courts across the country. The report is based on information collected from 414 surveys and 65 interviews with juvenile justice professionals, including judges, defense attorneys, prosecutors, probation officers, detention staff, and other juvenile justice advocates; focus groups and interviews of 55 youth who possess relevant firsthand experience; and an extensive review of relevant social science and legal research findings. The report contains extensive recommendations directed towards judges, defense attorneys, prosecutors, probation officers, detention facility administrators, policy makers, and advocates. In addition, the report makes eleven core recommendations to enhance the overall capacity of the system to work effectively with LGBT youth. Download full publication: www.EquityProject.org To order (free of charge): Order online at http://www.nclrights.org/HiddenInjustice

Locked Up & Out: Lesbian, Gay, Bisexual, & Transgender Youth in Louisiana’s Juvenile Justice System Juvenile Justice Project of Louisiana, Wesley Ware, 2010. Locked Up & Out shares the experiences of LGBT youth in Louisiana’s juvenile justice system, particularly in long- term secure confinement. The report discusses the path LGBT youth often take into the juvenile justice system, including various risk-factors that may indicate LGBT youth are disproportionately represented in secure care. Once inside Louisiana’s youth prisons, LGBT youth often face psychological abuse, sexual abuse, isolation, increased barriers to their early release, and other harmful conditions. The report provides recommendations for Louisiana’s juvenile justice system, including trainings and policy reform. While focused on the stories of LGBT youth in Louisiana, the report is relevant throughout the country. Download full publication: http://jjpl.org To order (free of charge): Contact JJPL’s LGBT and HIV/AIDS Project – 504-522-5437 ext. 292.

Supportive Families, Healthy Children: Helping Families with Lesbian, Gay, Bisexual & Transgender Children Family Acceptance Project, San Francisco State University, Caitlin Ryan, 2009. This is the first of several basic educational materials to share findings from the Family Acceptance Project to help families support their LGBT children. This first version is written in English, Spanish and Chinese at a 10th grade reading level. Download publications: http://FamilyProject.sfsu.edu/Publications To order: Contact FAP at [email protected] for information on ordering publications in bulk.

Opening Doors for LGBTQ Youth in Foster Care: A Guide for Lawyers and Judges American Bar Association, Laver & Khoury, 2008. This guide aims to increase the legal community’s awareness of LGBTQ youth in foster care and the issues they face. It provides tools for lawyers and judges to aid their advocacy and decision-making on behalf of LGBTQ youth. Special attention is given to helping lawyers and judges understand the unique needs and risk factors of LGBTQ youth, forming positive attitudes and beliefs about LGBTQ youth, developing strong attorney-client relationships, and using effective advocacy strategies. To order: Call the ABA Service Center at 800.285.2221. Or go to the ABA web-store at http://www.ababooks.org (ISBN: 978-1-60442-073-9, ABA CATALOG #: 5490444) Website: http://www.abanet.org/Child/lgbtq.shtml

CWLA Best Practice Guidelines: Serving LGBT Youth in Out-of-Home Care Child Welfare League of America, Wilber, Ryan, & Marksamer, 2006. This easy-to-use resource contains the first-ever set of comprehensive professional guidelines for how child welfare and juvenile justice professionals can best serve LGBT youth in state care. The Best Practice Guidelines developed out of recommendations from the Model Standards Project, a collaboration between Legal Services for Children and the National Center for Lesbian Rights. Download full publication, executive summary, and Power Point presentation: www.nclrights.org/Youth_Pubs To order: Order online at http://www.cwla.org/Pubs or call CWLA at 1-800-407-6273.

63 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Out of the Margins: A Report on Regional Listening Forums Highlighting the Experiences of Lesbian, Gay, Bisexual, Transgender and Questioning Youth in Care Child Welfare League of America and Lambda Legal, Woronoff, Estrada & Sommer, 2006. The CWLA/Lambda Regional Listening Forums provided an opportunity for LGBTQ youth in care, and the adults who work with and care for them, to share their experiences­ and work together to identify strategies for bringing about lasting change within the child welfare system. Out of the Margins consolidates the responses of the more than 500 youth and adult participants from 22 states who attended the Forums and offered personal stories of actual experiences and concrete solutions for building the capacity of the child welfare system to better meet the needs of LGBTQ young people. Download full publication: www.cwla.org/Programs/Culture/OutoftheMargins.pdf To order (free of charge): Order online at http://www.LambdaLegal.org/Our-Work/Issues/Youth/Out-of- Home-Care/YOHC-Publications-Order-Form.html or call Lambda Legal at 212-809-8585.

Getting Down to Basics: Tools to Support LGBTQ Youth in Care Child Welfare League of America and Lambda Legal Defense & Education Fund, 2006. This tool kit offers practical information on helping to ensure that LGBTQ youth in care receive the support and services they deserve. Consisting of 18 colorful pull-outs, it serves as an ideal starting point for administrators and practitioners unfamiliar with LGBTQ youth in out-of-home care issues. Specific target audiences include: caseworkers; attorneys, guardians ad litem, and advocates; congregate care providers; juvenile justice professionals; faith-based providers; LGBTQ youth; and families supporting LGBTQ youth. Sub-topics include (but are not limited to): working with transgender youth; working with homeless LGBTQ youth; LGBTQ youth risk data; recommendations for training and education; combating misguided efforts to ban lesbian and gay adults as foster and adoptive parents; and basic facts about being LGBTQ. Download full publication: http://www.LambdaLegal.org/Take-Action/Tool-Kits To order (free of charge): Order online at http://www.LambdaLegal.org/Issues/Youth-In-Out-of-Home-Care/ YOHC-Publications-Order-Form.html or call Lambda Legal at 212-809-8585.

Breaking the Silence: Lesbian, Gay, Bisexual, Transgender, and Queer Foster Youth Tell Their Stories - DVD and Resource CD National Center for Lesbian Rights, 2006. The Breaking the Silence DVD, produced in collaboration with the Y.O.U.T.H. Training Project and the Center for Digital Storytelling, contains ten short digital stories that were written and directed by LGBTQ youth who have spent time in state custody. Each of these digital stories is designed to stand on its own. For specific suggestions on how to use the DVD for training or other purposes, refer to the Introduction and User’s Guide and the DVD Viewing and Discussion Guide provided on the CD.

A supplemental bonus CD contains a comprehensive collection of more than 25 resources produced by organizations that are nationally respected for their expertise in supporting LGBTQ out-of-home youth. These tools provide additional background and support for trainers and advocates as well as guidance to administrators and managers on how to transform agencies to be safe and non-discriminatory. To order (free of charge): Order online at www.nclrights.org/Youth_bts

64 APPENDICES

Appendix C: DRAFT Model Policy & Practice Guidelines for Providing Non-Discriminatory Services to LGBT and Gender Non-conforming Youth in Group Care Facilities

Purpose

In accordance with state and federal laws, each youth under the jurisdiction of [insert the name of your facility] has the right to live in an environment free of harassment and discrimination. [insert the name of your facility] is committed to providing a healthy and accepting setting for all youth placed in its care by training and evaluating staff, instituting policies, and educating youth to respect each other. [Insert the name of your facility] does not tolerate discrimination or harassment by employees, volunteers, contract providers, or youth.

The purpose of these policy and practice guidelines is to establish operational practices that reinforce our commitment to respect the dignity of LGBT and gender non-conforming youth, create a safe environment for all members of the [insert the name of your facility] community, and ensure that all youth have equal access to all available services, placement, care, treatment, and benefits provided by [insert the name of your facility].

Policy

• It shall be the policy of [insert the name of your facility] to maintain and promote a facility that provides the highest quality of services to youth regardless of their actual or perceived race, ethnicity, sex, immigration status, disability, national origin, sexual orientation, or gender identity or expression.

• LGBT youth confined at [insert the name of your facility] shall receive fair and equal treatment, without bias and in a professional and confidential manner based on principles of sound professional practice.

• Employees, volunteers, and contractors that offer services to youth confined at [insert the name of your facility] shall not discriminate against or harass any youth in their care based on a youth’s actual or perceived sexual orientation, gender identity or expression, or other protected categories.

• [Insert the name of your facility] employees shall protect youth from discrimination, physical and sexual harassment or assault, and verbal harassment by other youth, based on a youth’s actual or perceived sexual orientation, gender identity or expression, or other protected categories.

• [Insert the name of your facility] will take all reasonable steps within its control to meet the diverse needs of all confined youth and provide an environment in which all individuals are treated with respect and dignity, regardless of sexual orientation, gender identity or expression, or other protected categories. 65 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Practice Guidelines for Providing Services to LGBT Youth

General Facility Operations

• All youth need to feel safe in their surroundings in order to fully benefit from facility programming. [Insert the name of your facility] shall establish and maintain a culture where the dignity of every youth is respected and all youth feel safe. Employees shall create opportunities for dialogue with youth and staff about all forms of diversity to increase tolerance and respect.

• [Insert the name of your facility] will promote the positive adolescent development of all youth in its care. Actions that support positive adolescent development include: modeling desired behavior such as demonstrating respect for all youth; reinforcing respect for differences amongst youth, encouraging the development of healthy self-esteem in youth, and helping youth manage the stigma sometimes associated with difference.

• Employees should model positive behavior when interacting with LGBT youth and remind all youth that anti-LGBT threats of violence, actual violence, or disrespectful or suggestive comments or gestures, will not be tolerated.

• [Insert the name of your facility] intends to provide a safe and non-discriminatory environment where youth can learn and grow. Employees of [insert the name of your facility] shall not prohibit or discourage communication or interaction between youth of the same sex that is not also prohibited or discouraged between youth of different sexes. Expressions of romantic or emotional attraction between youth of the same sex that do not include sexual activity are not prohibited and shall not result in punishment.

• [Insert the name of your facility] shall include LGBT-affirming books, magazines, movies, and other materials in [insert the name of your facility] library. All youth shall be made aware of these materials and shall have access to them when requested. Where possible, employees shall display materials, such as “safe zone” or “hate-free zone” posters that convey to youth that the facility maintains an LGBT–friendly environment. [Insert the name of your facility] shall ensure that employees are made aware of local LGBT resources and reach out to the LGBT community to find organizations the facility can contract with to provide supportive services to LGBT youth.

• [Insert the name of your facility] shall provide LGBT youth with access to educational, rehabilitative, recreational, and other programming on the same bases as other youth. Youth shall not be denied qualification for or access to programming based on sexual orientation or gender identity or expression.

Confidentiality

• Employees shall not disclose a youth’s sexual orientation or gender identity to other youth at the facility or to outside parties, individuals, or agencies, such as health care or social service providers or a youth’s family and friends, without the youth’s permission,

66 unless such disclosure is necessary to comply with state or federal law. APPENDICES

• Any disclosure of confidential information related to a youth’s LGBT identity shall be limited to information necessary to achieve the specific beneficial purpose of the disclosure.

• This confidentiality restriction does not prevent individuals working at [insert the name of your facility] from discussing a youth’s needs or services with other staff members or when resolving a grievance.

Intake

• Staff should be aware that LGBT youth are in various stages of awareness and comfort with their sexual orientation and gender identity. Youth intake interviewers shall sensitively inquire about fears the youth may have of being harassed in the facility, but intake workers should not directly ask youth if they are LGBT. 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 non-judgmental fashion and determine if the youth has particular concerns or needs related to being LGBT.

Youth Placement

• Placement decisions for LGBT youth shall occur as soon as possible after intake. All classification and placement decisions for youth in [insert the name of your facility] shall be individualized, based on good juvenile systems practices, and shall prioritize the youth’s physical and emotional well-being.

• Youth shall not be prohibited from having a roommate based on a youth’s actual or perceived sexual orientation. If a youth is fearful of rooming with a particular youth, he or she will be provided a different roommate or a single room, if available. This assignment will be made in accordance with classification procedures and facility safety and security needs.

• [If facility is a locked facility include this clause.] LGBT youth shall not be placed in isolation or segregation as a means of keeping them safe from discrimination, harassment, or abuse. LGBT youth shall not be treated or classified as sex offenders unless required by a court.

• Transgender youth shall not automatically be housed according to their birth sex. [Insert the name of your facility] staff shall make housing decisions for transgender youth based on the youth’s individualized needs and should prioritize the youth’s emotional and physical safety taking into account the youth’s perception of where he or she will be most secure, as well as any recommendations from the youth’s health care provider. Generally, it is most appropriate to house transgender youth based on their gender identity. If necessary to ensure their privacy and safety, transgender youth shall be provided a single room, if available.

67 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Names and Language

• Employees, volunteers, and contractors, when working with youth at [insert the name of your facility] shall use respectful language and terminology that does not further stereotypes about LGBT people.

• Employees, volunteers, and contractors of [insert the name of your facility], in the course of their work, shall not refer to youth by using derogatory language in a manner that conveys bias towards or hatred of LGBT people. In particular, employees of [insert the name of your facility] shall not imply to or tell LGBT youth that they are abnormal, deviant, or sinful, or that they can or should change their sexual orientation or gender identity.

• Transgender youth shall be referred to by their preferred name and the pronoun that reflects the youth’s gender identity, even if their name has not been legally changed. All written documentation about a transgender youth shall use the youth’s preferred name as well note the youth’s legal name recognized by the court.

Clothing and Gender Presentation

• Youth shall be allowed to dress and present themselves in a manner consistent with their gender identity. [Insert the name of your facility] shall allow youth to purchase or shall provide youth with clothing, including undergarments, appropriate for the youth’s gender identity and gender presentation.

• Grooming rules and restrictions, including rules regarding hair, make-up, shaving, etc., shall be the same in male and female units. Transgender girls shall not be required to have a male haircut, or to wear masculine clothing. Transgender boys shall not be required to maintain a female hairstyle, to wear make-up, or to wear feminine clothing.

Bathrooms and Showers

• Consistent with the facility’s reasonable and necessary security policies, [insert the name of your facility] shall provide transgender youth with safety and privacy when using the shower and bathroom and when dressing and undressing. Transgender youth shall not be required to shower or undress in front of other youth and shall be permitted to use the bathroom that is consistent with their gender identity. Where available, transgender youth shall have access to single-occupancy bathrooms and showers. Such accommodation shall be provided in a sensitive manner.

Medical and Mental Health Care

• If the youth requests assessment or treatment, [insert the name of your facility] shall provide transgender youth with access to medical and mental health care providers who are knowledgeable about the health care needs of transgender youth. [Insert the name of 68 APPENDICES

your facility] will provide all recommended transgender-related treatments in accordance with the medical and mental health assessments performed by the youth’s health care provider and will provide transportation for the youth to receive such treatments, if necessary.

• If prior to arriving at the facility a transgender youth has been receiving transgender- related medical care, such as hormone therapy or supportive counseling, [insert the name of your facility] medical staff shall consult with the youth’s medical providers and shall continue to provide the youth with all transgender-related treatments that are medically necessary according to the youth’s provider and accepted professional standards. Hormone therapy shall continue at current levels pending this consultation.

• In accordance with accepted health care practices which recognize that attempting to change a person’s sexual orientation or gender identity is harmful, [insert the name of your facility] shall not employ or contract with mental health providers who attempt to change a youth’s sexual orientation or gender identity.

• LGBT youth shall not participate in sex offender treatment or counseling unless required to do so by a court. All sex offender treatment shall not discriminate based on sexual orientation and gender identity and shall not criminalize or pathologize LGBT identity.

Search Issues [for locked facilities only]

• LGBT youth shall not be physically searched in a 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, if such search is required. [Insert the name of your facility] shall accommodate this request when possible and consistent with maintaining the security of the facility.

Procedures

Training of Employees, Volunteers, & Contractors

• In order for employees, volunteers, and contractors to have the awareness and capacity to effectively work with LGBT youth in this facility, all facility administrators, employees, volunteers, and contractors are required to attend training on working with LGBT youth. This training should teach participants: 1) the goals and requirements of the Non- discrimination Policy and Practice Guidelines Regarding LGBT Youth; 2) how to work with LGBT youth in a respectful and non-discriminatory manner; and 3) how to recognize, prevent, and respond to harassment against LGBT youth.

• All employees and administrators of [insert the name of your facility] shall receive training about LGBT youth during their orientation and as part of their continuing education requirements. These trainings shall be taught by a qualified trainer with expertise in working with LGBT youth. 69 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

• All new facility administrators, employees, volunteers, and contractors shall receive a copy of the Policy and Practice Guidelines with their orientation materials. Current administrators, employees, volunteers, and contractors shall receive a copy of the Policy and Practice Guidelines before it is to go into effect.

Policy Dissemination to Youth

• At the time of intake, [insert the name of your facility] staff shall verbally inform all youth about the facility’s Policy and Practice Guidelines, including the youth’s rights and responsibilities under this policy and the procedures for reporting violations. Each youth shall receive a copy of the Policy and Practice Guidelines [and all other policies related to grievance procedures] during intake. Additional copies of the policy shall also be provided to youth when requested.

Responsibilities of Employees and Contractors to Respond to and Report Harassment

• Employees of [insert the name of your facility] shall promptly and appropriately intervene when a youth physically, verbally, or sexually abuses or harasses another youth based on the youth’s actual or perceived sexual orientation or gender identity.

• All employees and contractors shall be required to report all incidents in violation of this policy in accordance with facility operating procedures. Failure to report an incident may result in disciplinary or other consequences.

• [Insert the name of your facility] employees have an obligation to report conduct by other employees and contractors that may be in violation of this policy to the other individual’s supervisor and the [insert the name of your facility] administration.

Reporting Procedures for Youth

• Youth shall be able to report violations of this policy following established facility grievance procedures. Grievance procedures shall protect confidentially of youth and contain other measures to prevent retaliation.

Enforcement

• Supervisory and management staff shall treat all reports of violations of this policy seriously. The [insert the name of your facility] administration shall promptly and effectively respond to grievances filed by youth and shall take swift action according to established procedures when employees or contractors report violations.

Scope

• This policy shall apply to all employees and volunteers of [insert the name of your facility], to employees or representatives of any agency providing services on behalf of

70 APPENDICES

youth at [insert the name of your facility], including but not limited to the Department of Health, Department of Education, their contractors, volunteers, and any other relevant agencies or departments which have contact with youth confined at [insert the name of your facility].

Definitions

For purposes of the policy and practice guidelines, the following definitions apply:

Bisexual A person who is emotionally, romantically, and sexually attracted to both males and females.

Contractor Any person who is employed directly by an agency or organization that has a contract or Memorandum of Understanding with the [insert the name of your facility].

Discrimination Any act, policy, or practice that, regardless of intent, has the effect of subjecting any youth to differential treatment as a result of that youth’s actual or perceived sexual orientation or gender identity.

Gay A person who primarily is emotionally, romantically, and sexually attracted to individuals of the same sex, typically in reference to boys or men.

Gender Expression The manner in which a person expresses his or her gender through clothing, appearance, behavior, speech, etc. Gender expression is a separate concept from sexual orientation and gender identity.

Gender Identity A person’s internal, deeply felt sense of being male or female, regardless of the person’s sex at birth.

Gender Identity Disorder (GID) A diagnosable medical condition for individuals who are experiencing high levels of distress because they have a strong and persistent desire to be a different sex and a persistent discomfort with their birth sex. According to accepted professional standards, treatments, such as supportive counseling, hormone therapy, and sex reassignment surgery are medically necessary for many youth or adults who have GID.

Harassment Includes, but is not limited to, name-calling; disrespectful gestures, jokes, or comments; inappropriate touching; threats of physical or emotional acts or negative consequences (including religious condemnation); physical abuse; sexual abuse, including unwanted sex acts, touching, pantomime, and threats; and emotional abuse, such as shunning or isolation. Attempting to change a youth’s sexual orientation or gender identity is also a form of harassment.

71 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

Lesbian A girl or woman who primarily is emotionally, romantically, and sexually attracted to girls or women.

Sexual Orientation A person’s emotional, romantic, and sexual attraction, to individuals of the same sex or of a different sex.

Transgender A person whose gender identity (their understanding of themselves as male or female) does not correspond with their birth sex. A transgender girl is a girl whose birth sex was male but who understands herself to be female. A transgender boy is a boy whose birth sex was female but who understands himself to be male.

Youth Any person committed to the custody and care of [insert the name of your facility], any person who is subject to supervision by [insert the name of your facility], or any person who is in the custody of the state who receives services from the [insert the name of your facility].

Severability

The provisions of the Policy and Practice Guidelines shall be severable. If any provision or portion of this policy or its application to any person or circumstance is held invalid, the remainder of this policy or the application of the provision to other persons or circumstances is not affected.

72 CHAPTER ONE: Understanding Transgender and Gender Non-Conforming Youth

BIOGRAPHIES

Report AUTHOR:

Jody Marksamer

Jody Marksamer joined the National Center for Lesbian Rights in 2003 as an Equal Justice Works Fellow, and currently is a staff attorney and the Youth Project Director. He also coordinates the Equity Project, a collaborative project between NCLR, Legal Services for Children, and the National Juvenile Defender Center, working to ensure fairness and respect for LGBT youth in juvenile courts. Jody regularly presents at national conferences on legal and policy issues affecting LGBT youth in the child welfare and juvenile justice systems. Much of his work focuses on transgender youth, and he has served as a consultant on this topic for numerous child welfare and juvenile justice agencies.

Contributing Writers

Dean Spade

In 2002, Dean Spade founded the Sylvia Rivera Law Project, where he worked as a staff attorney until 2006. He continues to stay involved with SRLP as a collective member. Dean is currently an assistant professor at Seattle University School of Law. Prior to joining the faculty at Seattle University, Dean was a Williams Institute Law Teaching Fellow at the University of California, Los Angeles Law School, teaching classes related to sexual orientation and gender identity law. He has authored numerous articles and publications on transgender and poverty issues, and lectures internationally on this topic.

Gabriel Arkles

In 2004, Gabriel Arkles joined the Sylvia Rivera Law Project, where he worked as a staff attorney through 2010. He continues his involvement with SRLP as a collective member. Gabriel recently joined the faculty of New York University School of Law as acting assistant professor. He has written extensively on gender identity issues.

73 A GUIDE FOR GROUP CARE FACILITIES SERVING TRANSGENDER AND GENDER NON-CONFORMING YOUTH

National Center for Lesbian Rights Sylvia Rivera Law Project 870 Market Street, Suite 370 147 W 24th Street, 5th Floor San Francisco, CA 94102 New York, NY 10011 [email protected] [email protected] Toll-free Legal Helpline: 1.800.528.6257 Toll Free: 1.866.930.3283 www.nclrights.org www.srlp.org

74

Model Anti-Harassment and Non-Discrimination Policy for Child Welfare or Juvenile Justice Agencies

nclrights.org

national center for lesbian rights 1 nclrights.org

national center for lesbian rights

Model Anti-Harassment and Non-Discrimination Policy for Child Welfare or Juvenile Justice Agencies i. policy It is the policy of the [name of your agency or organization], in accord with state and federal laws, that each youth under the jurisdiction of the [agency or organization] has the right to an environment free of harassment and discrimination. It is also the policy of the [agency or organization] in accord with state and federal laws, that each employee, contractor, and volunteer has the right to work in an environment free of harassment and discrimination. Harassment and discrimination are strictly prohibited and will not be tolerated at the [agency or organization]. The [agency or organization] will take all reasonable steps within its control to provide an environment in which all individuals are treated with respect and dignity.

It is the policy of the [agency or organization] to prohibit all forms of harassment and discrimination of or by youth, employees, contractors, and volunteers, including harassment and discrimination based on actual or perceived race, color, religion, sex, national origin, ethnicity, ancestry, age, disability, sexual orientation, gender identity and expression, or based on an individual’s association with a person or group with one or more of these actual or perceived characteristics.

Retaliation against an individual who files a complaint of harassment or participates in an investigation of such a complaint is strictly prohibited.

The [agency or organization] shall ensure that all youth, employees, contractors, and volunteers receive notice of this policy. ii. definitions The following definitions are for purposes of this policy.

Contractor: Any person who is employed directly by an agency or organization that has a contract or Memorandum of Understanding with the [agency or organization].

Discrimination: Any act, policy or practice that, regardless of intent, has the effect of subjecting any person to differential treatment as a result of that person’s actual or perceived race, color, religion, sex, national origin, ethnicity, ancestry, age, disability, sexual orientation, gender identity and expression, or based on that person’s association with a person or group with one or more of these actual or perceived characteristics.

Employee: Any person who is employed directly by [agency or department].

model anti-harassment and non-discrimination1 policy for child welfare or juvenile justice agencies 1 Gender Identity and Expression: For purposes of this policy, gender identity and expression mean having or being perceived as having gender-related characteristics, appearance, mannerisms, or identity, whether or not stereotypically associated with one's assigned sex at birth.

Harassment: Unwelcome, offensive or intimidating behavior on account of an individual’s (or group of individuals’) membership in a protected category, as defined below. Unlawful harassment may take many forms including but not limited to:

VERBAL CONDUCT that is directed at an individual (or group of individuals) because of his or her (their) membership in a protected category. Examples include, but are not limited to, epithets, derogatory comments, unwelcome jokes or stories, slurs, unwelcome verbal advances or invitations, requests for sexual favors, or harassing phone calls.

VISUAL CONDUCT that is directed at an individual (or group of individuals) because of his or her (their) membership in a protected category. Examples include, but are not limited to, derogatory or offensive posters, cartoons, bulletins, drawings, photographs, magazines, written articles or stories, screen savers, or electronic communications.

PHYSICAL CONDUCT that is directed at an individual (or group of individuals) because of his or her (their) membership in a protected category. Examples include, but are not limited to, touching, patting, pinching, grabbing, staring, leering, lewd gestures, invading personal space, assault, blocking normal movement, or other physical interference.

SEXUAL CONDUCT that is directed at a youth by an employee, contractor, volunteer, or by another youth, which is unwelcome and/or harassing. Examples include unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.

Protected Categories: Race, color, religion, sex, national origin, ethnicity, ancestry, age, disability, sexual orientation, gender identity and expression, or any other category protected now or in the future by state or federal laws.

Retaliation: Any adverse action taken against a person for filing a complaint of harassment, reporting a complaint of harassment, or participating in or cooperating with an investigation of a complaint of harassment.

Volunteer: Any person who provides services free of charge to the [agency or organization].

Youth: Any person committed to the custody and care of the [agency or organization], any person who is subject to supervision by the [agency or organization], or any person who is in the custody of the state who receives services from the [agency or organization].

Adverse actions may include, but are not limited to: knowingly placing a youth in a situation that jeopardizes the youth’s safety, denying privileges without justification, imposing unwarranted discipline, removing the youth from a placement, making an unwarranted transfer recommendation, ignoring or ostracizing the youth, spreading rumors or innuendoes about the youth, or threatening any of the above conduct.

national center for lesbian rights model anti-harassment and non-discrimination2 policy for child welfare or juvenile justice agencies 2 iii. procedures for handling complaints of harassment or discrimination a. reporting complaints 1. Youth. It is the policy of the [agency or organization] to encourage any youth to report when the youth (1) legitimately and reasonably believes that he or she has been subjected to harassment or discrimination based on his or her actual or perceived membership in a protected category or based on his or her association with a person or group, or (2) has first-hand knowledge of what he or she legitimately and reasonably believes to be harassment or discrimination of another youth.

Youth may report a complaint of harassment or discrimination in two ways: a) to the Equity Coordinator(s) and/or b) to any employee. Youth may report harassment or discrimination though one or both of these methods.

a) To the Equity Coordinator(s). The [head of the agency or organization] shall designate at least one individual as an Equity Coordinator to receive complaints under this policy. The [agency or organization] shall prominently post the name and contact information of its Equity Coordinator(s). Any youth may make a verbal or written complaint of harassment or discrimination under this policy, for themselves or another youth, to the Equity Coordinator(s). The Equity Coordinator(s) shall promptly, and in no case later than 24 hours after receiving the complaint from the youth, forward the complaint to the [head of the agency or organization].

b) To an Employee. Any youth may make a verbal or written complaint of harassment or discrimination under this policy, for themselves or another youth, to any [agency or organization] employee. An employee who receives such a complaint must promptly, and in no case later than 24 hours after receiving the complaint from the youth, report the complaint to the [employee’s supervisor]. The [supervisor] shall forward the complaint to the [head of the agency or organization] promptly, and in no case later than 24 hours after receiving the complaint from the employee.

2. Employees, Contractors, and Volunteers. Any employee, contractor, or volunteer who witnesses harassment of a youth shall promptly, and in no case later than 24 hours after witnessing the harassing conduct, report that conduct to [their supervisor or unit head]. The [supervisor] shall promptly, and in no case later than 24 hours after receiving the report from the employee, forward the complaint to the [head of the agency or organization].

3. Mandatory Reporting of Suspected Child Abuse. Under certain circumstances, alleged harassment may constitute child abuse under state law. Employees, contractors, volunteers, and agency staff must remain aware of their statutory obligation to report suspected abuse, when applicable.

4. Privacy. The [agency or organization] will keep complaints made under this policy confidential to the extent possible given the need to investigate, act on investigative results, and monitor and compile reports about complaints made under this policy. Complaints made under this policy shall be kept separate from any other individual files maintained on youth.

national center for lesbian rights model anti-harassment and non-discrimination policy for child welfare or juvenile justice agencies 3 b. response to complaint 1. Immediate Action. Upon learning the details of the complaint, if the [supervisor or head of the agency or organization] determines that the conduct alleged in the complaint is egregious or poses a threat of further potential misconduct, he or she shall take immediate action to separate the complainant(s) and the subject(s) of the complaint to the greatest degree possible consistent with practical considerations of managing the facility in question.

2. Investigation. Within 24 hours of receiving a complaint of harassment or discrimination under this policy, the [head of agency or organization] shall assign either an Equity Coordinator or another designee to investigate the complaint. The [head of agency or organization] shall not assign an investigator who is either the subject of or an actual or potential witness to the harassment or discrimination alleged in the complaint. Also, within 24 hours of receipt of a complaint under this policy, the [head of agency or organization] shall forward the complaint to the assigned investigator.

The assigned investigator shall begin the investigation promptly upon receiving the complaint from the [head of agency or organization]. The assigned investigator shall interview the individuals involved, witnesses, and any other persons who may have knowledge of the circumstances giving rise to the complaint. The investigator may use other methods and documentation necessary to uncover the facts and circumstances surrounding the conduct at issue in the complaint. In determining the facts surrounding a complaint, the investigator shall consider, among other things: the nature of the alleged behavior; how often the conduct allegedly occurred; whether there were alleged or confirmed past incidents or alleged or confirmed continuing patterns of behavior; and the relationship of the parties involved.

3. Concluding the Investigation. The investigator shall complete the investigation, including a written investigative report, as soon as practicable, but in no event later than thirty (30) calendar days after receiving the complaint from the [head of agency or organization]. If exceptional circumstances warrant more time, by no later than thirty (30) days from the date the investigator received the complaint, the investigator shall provide a status report to the [head of agency or organization] and shall request additional time.

4. Result. After completing the investigation, the investigator shall determine the facts of the case including who did what, who said what, and who intended what. The investigator shall provide the evidence supporting these facts to the [head of agency or organization] in a written investigative report.

c. determination Within 10 calendar days of the date of receipt of the investigative report, the [head of agency or organization] shall make his or her determination on whether a violation of this policy occurred, whether a violation of another [agency or organization] policy occurred, or whether no violation occurred. If the [head of agency or organization] finds that a violation did occur, he or she will take appropriate action consistent with the remedial and disciplinary action provision of this policy (see section E below).

d. notification Within two business days of making a determination on whether there has been any violation of this or another [agency or organization] policy, the [head of agency or organization] shall advise the complainant of this determination and what action has been or will be taken for any violations. national center for lesbian rights model anti-harassment and non-discrimination4 policy for child welfare or juvenile justice agencies 4 e. remedial and disciplinary action The [agency or organization] shall take remedial or disciplinary action as appropriate to ensure that harassment or discrimination does not reoccur. All remedial and disciplinary action shall comply with applicable state and federal laws, local ordinances, collective bargaining agreements, and, where applicable, the [agency or organization] policies and procedures. The [head of agency or organization] shall establish a remedial and disciplinary structure consistent with this policy.

1. Youth. If the [head of agency or organization] determines that a youth violated this policy, the [head of agency or organization] shall take appropriate remedial or disciplinary action that may include, but is not limited to: counseling, awareness training, warning, transfer, or other actions consistent with the [agency or organization] policies and procedures. The emphasis of such action should be on rehabilitation.

2. Employees. If the [head of agency or organization] determines that an employee has violated this policy, the [head of agency or organization] shall take appropriate remedial or disciplinary action, including counseling, training, or disciplinary action including but not limited to: written reprimand, suspension or termination.

3. Contractors. If the [head of agency or organization] determines that a contractor has violated this policy, the [head of agency or organization] shall promptly notify the contract agency. The contract agency shall be responsible for taking appropriate remedial or disciplinary action involving their employees. If the same contract agency staff member or the same contract agency is involved in repeated violations of this policy, the [agency or organization] reserves the right to ban that contract agency staff member from working with youth at the [agency or organization] and/or to terminate the contract with that agency.

4. Volunteers. If the [head of agency or organization] determines that a volunteer has violated this policy, the [head of agency or organization] shall take appropriate remedial or disciplinary action, including: counseling, training, or disciplinary action including but not limited to written reprimand, suspension, or termination.

f. requests for reconsideration and appeals To facilitate the delivery of requests for reconsideration and appeals, the [head of agency or organization] shall institute a procedure for reconsideration and appeals and the [agency or organization] shall prominently post this procedure.

g. retaliation Retaliation against an individual for reporting harassment or discrimination under this policy or for participating in an investigation of a harassment or discrimination complaint is a violation of this policy and strictly prohibited. Any individual who retaliates against an individual for making a report or participating in any investigation under this policy will be subject to appropriate action and/or discipline, consistent with the remedial and disciplinary actions specified in this policy.

h. duty to follow procedure All [agency or organization] employees are required to comply with this policy. Any employee who fails to comply with this policy may be subject to disciplinary action, up to and including termination of employment.

national center for lesbian rights model anti-harassment and non-discrimination policy for child welfare or juvenile justice agencies 5 i. right to file other complaints This policy shall not alter or affect the right of any person to file a complaint alleging harassment or discrimination in state or federal court, to file a complaint with an appropriate governmental agency, or to consult with a private attorney or union representative.

iv. record keeping The [agency or organization] shall track all complaints made under this policy, whether sustained or not, as well as any remedial, disciplinary or other action taken for any violation of this policy.

v. notice The [head of agency or organization] shall provide notice of this policy to all youth, employees, contractors, and volunteers.

The [agency or organization] shall prepare a one-page summary of the policy, and include the summary in the materials the [agency or organization] gives to youth upon admission into [agency or organization]. The [agency or organization] shall also post the one-page summary prominently in several places accessible to youth in all facilities run by the [agency or organization].

The [agency or organization] shall include a copy of this policy in its employee handbook and shall give a copy to all contractors and volunteers.

vi. training The [head of the agency or organization] shall develop age-appropriate methods of discussing the meaning and substance of this policy with youth, employees, volunteers, and contractors to help prevent harassment and discrimination.

The training curriculum and educational materials developed under this policy shall (1) inform youth, employees, contractors, and volunteers about the policy, and (2) raise awareness about different types of harassment and discrimination; how to prevent harassment and discrimination; and the devastating emotional consequences of harassment and discrimination.

vii. severability The provisions of this policy shall be severable. If any provision or portion of this policy or its application to any person or circumstance is held invalid, the remainder of the policy or the application of the provision to other persons or circumstances is not affected.

national center for lesbian rights model anti-harassment and non-discrimination6 policy for child welfare or juvenile justice agencies 6 © June 2006 NCLR This document is intended to provide general information regarding legal rights. Because laws and legal procedures are subject to frequent change and differing interpretations, the National Center for Lesbian Rights cannot ensure the information in this document is current, nor can NCLR be responsible for any use to which it is put. Do not rely on this information without consulting an attorney or the appropriate agency.

nclrights.org the national center for lesbian rights— youth project has been advocating for LGBTQ youth in schools, national center for lesbian rights foster care, juvenile justice settings, and the mental health system since 1993. The Project provides direct, free legal information to youth, legal advocates, and activists through a toll-free line; advocates for nclrights.org policies that protect and support LGBTQ youth in these different arenas; and litigates cases that are creating new legal protections for youth in schools, foster care, juvenile justice, and other settings.

for more information, contact:

Jody Marksamer, Staff Attorney 415.392.6257 x308 [email protected] Toll-free Legal Helpline: 1.800.528.6257

National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 [email protected]

This page intentionally left blank LESBIAN, GAY, BISEXUAL AND TRANSGENDER YOUTH An Epidemic of Homelessness

by Nicholas Ray

with chapters contributed by Colby Berger, Waltham House, Waltham, Mass. Susan Boyle, Urban Peak, Denver, Colo. Mary Jo Callan and Mia White, Ozone House, Ann Arbor, Mich. Grace McCelland, Ruth Ellis Center, Detroit, Mich. Theresa Nolan, Green Chimneys, New York, N.Y.

The National Gay and Lesbian Task Force would like to thank the Johnson Family Foundation for its generous support, which enabled the printing and distribution of this publication, as well as its commitment to ensuring that lesbian, gay, bisexual and transgender homeless youth nationwide have access to the services they need in a safe, secure and nurturing environment.

National Gay and Lesbian Task Force Policy Institute National Coalition for the Homeless The National Gay and Lesbian Task Force Policy Institute is a think tank dedicated to research, policy analysis and strategy development to advance greater understanding and equality for lesbian, gay, bisexual, and transgender people.

Washington, DC Cambridge, MA 1325 Massachusetts Ave NW, Suite 600 1151 Massachusetts Avenue Washington, DC 20005-4171 Cambridge, MA 02138 Tel 202 393 5177 Tel 617 492 6393 Fax 202 393 2241 Fax 617 492 0175

New York, NY Miami, FL 80 Maiden Lane, Suite 1504 3510 Biscayne Blvd Suite 206 New York, NY 10038 Miami, FL 33137 Tel 212 604 9830 Tel 305 571 1924 Fax 212 604 9831 Fax 305 571 7298

Los Angeles, CA Minneapolis, MN 8704 Santa Monica Blvd, Suite 200 810 West 31st Street West Hollywood, CA 90069 Mineeapolis, MN 55408 Tel 310 855 7380 Tel/Fax 612 821 4397 Fax 310 358 9415

[email protected] www.theTaskForce.org

National Coalition for the Homeless

www.nationalhomeless.org

© 2006 The National Gay and Lesbian Task Force Policy Institute When referencing this document, we recommend the following citation: Ray, N. (2006). Lesbian, gay, bisexual and transgender youth: An epidemic of homelessness. New York: National Gay and Lesbian Task Force Policy Institute and the National Coalition for the Homeless. LGBT Youth ii Homelessness Contents

EXECUTIVE SUMMARY ...... 1 Why are so many LGBT youth becoming homeless? ...... 1 What impact does homelessness have on LGBT youth specifically? ...... 2 Mental health issues ...... 2 Substance abuse ...... 2 Risky sexual behavior ...... 3 Victimization of homeless LGBT youth ...... 3 LGBT homeless youth and the Juvenile and criminal justice systems ...... 3 Transgender homeless youth ...... 4 The federal response to youth homelessness ...... 4 The potential for anti-LGBT discrimination at faith-based service providers . . .4 The experiences of LGBT homeless youth in the shelter system ...... 5 Model programs to improve service delivery to LGBT homeless youth ...... 6 Conclusion and policy recommendations ...... 6 Federal level recommendations ...... 6 State and local level recommendations ...... 7 Practitioner level recommendations ...... 7 Conclusion ...... 7

INTRODUCTION ...... 8 What is the definition of “homeless youth?” ...... 9

HOW MANY LGBT HOMELESS YOUTH ARE THERE AND WHY DO THEY BECOME HOMELESS? ...... 11 A note on acronyms ...... 11 Barriers to a more accurate count ...... 14 Why do youth become homeless? ...... 16 Sexual orientation and gender identity issues ...... 16 Physical or sexual assault ...... 18 Additional factors that lead to homelessness ...... 19 Why do youth remain homeless? ...... 21

THE FEDERAL RESPONSE TO YOUTH HOMELESSNESS ...... 24 The Runaway and Homeless Youth Act ...... 25 A brief legislative history ...... 25 Congress acts ...... 27

iii Federal programs for homeless youth ...... 28 Basic Center Program ...... 28 Street Outreach Program ...... 29 Transitional Living Program ...... 30 National Runaway Switchboard ...... 31 Federal funding under the Runaway and Homeless Youth Act ...... 31 Table 1: Federal RHYA Funding 2001 to 2006 ($ in millions) ...... 32 McKinney-Vento Homeless Assistance Act ...... 32 The impact of federal immigration policy on LGBT homeless youth ...... 35 Organizational advocacy for people experiencing homelessness ...... 36 Faith-based service providers ...... 37 The Potential for anti-LGBT discrimination at faith-based service providers . .39

CRITICAL ISSUES AFFECTING LGBT HOMELESS YOUTH ...... 41 Mental health issues ...... 41 How are homeless youth affected? ...... 42 Mental health crises facing LGBT youth ...... 43 Mental health services ...... 45 Substance abuse ...... 46 Table 2: Percentage of youth in different housing situations and the substances they use ...... 47 Figure 1: Lifetime substance use by homeless youth ...... 48 Substance use and LGBT youth ...... 49 Risky Sexual Behavior ...... 53 Risky behavior in homeless LGBT youth ...... 53 Sexual health risks for homeless youth populations ...... 53 Determinants of sexual health of homeless youth ...... 54 Survival sex ...... 55 The experience of transgender homeless youth ...... 58 Access to medical care for the homeless transgender community ...... 60 Figure 2: A summary of risky behaviors reported by trans-identified youth . . .62 Risks facing homeless transgender youth ...... 62 Community-based health centers reaching out to low and no income transgender people ...... 63 Conclusion ...... 64 Crime and victimization ...... 66 Physical and verbal harassment in school ...... 66 Young and homeless victims of crime ...... 67 The criminalization of homelessness ...... 71 The juvenile and criminal justice systems ...... 73 LGBT people in prison ...... 73 Rape in prisons ...... 74 LGBT youth in the juvenile justice system ...... 77 Resiliency ...... 79

EXPERIENCES OF HOMELESS LGBT YOUTH IN THE SHELTER SYSTEM ...... 83 Faith-based programs ...... 85 Conclusion ...... 89

LGBT Youth iv Homelessness RUTH ELLIS CENTER:STREET OUTREACH PROGRAM AND DROP-IN CENTER ...... 91 History and background ...... 91 Characteristics of our youth ...... 92 Collaborations ...... 93 Staffing our programs ...... 93 The Street Outreach Program ...... 95 The Drop-in Center ...... 96 Positive Youth Development ...... 97 Sexual abuse and exploitation ...... 98 Range of services ...... 99 Program impact ...... 100 Barriers to success ...... 101 Evaluation ...... 102 Conclusion ...... 103

GREEN CHIMNEYS: TRIANGLE TRIBE APARTMENTS TRANSITIONAL LIVING PROGRAM ...... 104 New York City programs ...... 105 Employee/volunteer data ...... 105 Collaborations ...... 106 What is transitional living? ...... 106 History and development of the Triangle Tribe Apartments ...... 108 The mission and philosophy of Green Chimneys transitional programming ...... 110 Practice: How it operates ...... 110 Why it works: Statistics and other signs of success ...... 113 Challenges and overcoming them ...... 114 Evaluation: Agency and program ...... 114 Conclusion ...... 115

OZONE HOUSE: MAKING EVERY SPACE A SAFE SPACE ...... 116 Safety, support and affirmation: Developing an agency culture for effective work with LGBT youth ...... 118 Approach to services ...... 120 Developing youth & capitalizing on their strengths ...... 121 Empowerment ...... 121 Responsiveness ...... 121 Holistic approach ...... 121 Strategies for achieving our mission ...... 122 Committing to an alternative culture ...... 122 Ensuring physical manifestations of safety ...... 122 Professional development ...... 122 Formalized training ...... 122 Effective supervision ...... 123 Social learning ...... 123 Taking the lead from youth ...... 123 Maximizing teachable moments ...... 124 Recruiting LGBT staff and volunteers ...... 124 Advocacy and systems change ...... 125 Reducing and eliminating barriers to service ...... 126

Contents v Case-level advocacy ...... 126 Policy-level advocacy ...... 126 Agency policies & procedures ...... 126 An inclusive definition of “family” ...... 126 A Hostile Language Policy ...... 126 Policy and practice bodies ...... 127 Outcomes and expected results ...... 128 Outcome 1: Safety for runaway, homeless and high-risk youth ...... 128 Outcome 2: Emotional safety for LGBT and questioning youth ...... 129 Outcome 3: Cultural competence ...... 129 Conclusion ...... 130

URBAN PEAK: WORKING WITH HOMELESS TRANSGENDER YOUTH IN A SHELTER ENVIRONMENT ...... 131 Introduction & overview: The challenge of making spaces safe for transgender youth ...... 132 Working with transgender youth: Building trust and maintaining a safe space . . 132 Sex and gender identity: terms and definitions ...... 133 Guidelines for providing shelter services to transgender people ...... 134 Basic guidelines for creating a transgender youth-friendly shelter ...... 135 Developing a supportive staff ...... 135 Developing supportive policies ...... 135 Policy of respect ...... 136 Intake process ...... 136 Housing and sex-segregated facilities ...... 137 Harassment ...... 137 Conclusion ...... 138

WALTHAM HOUSE: TRAINING MODELS TO IMPROVE INTERACTIONS WITH LGBT OUT-OF-HOME YOUTH ...... 139 Working with the State of Massachusetts ...... 141 History and overview of the initiative ...... 142 Implementation of the training program ...... 145 The training curriculum ...... 147 Training session outcomes and highlights ...... 149 Conclusion ...... 151

CONCLUSION AND POLICY RECOMMENDATIONS ...... 153 Federal-level recommendations ...... 154 State- and local-level recommendations ...... 156 Practitioner-level recommendations ...... 160 Conclusion ...... 161

ADDENDUM ...... 162

REFERENCES ...... 167

ACKNOWLEDGMENTS ...... 183

TASK FORCE FUNDERS ...... 186

LGBT Youth vi Homelessness Executive summary

The U.S. Department of Health and Human Services estimates that the number of homeless and runaway youth ranges from 575,000 to 1.6 million per year.1 Our analysis of the available research suggests that between 20 percent and 40 percent of all homeless youth identify as lesbian, gay, bisexual or transgender (LGBT).2 Given that between 3 percent and 5 percent of the U.S. population identifies as lesbian, gay or bisexual, it is clear that LGBT youth Our analysis of the experience homelessness at a disproportionate rate. It is this reality available research that prompted the National Gay and Lesbian Task Force (the suggests that between Task Force), in collaboration with the National Coalition for the 20 percent and 40 Homeless (NCH), to produce this publication. percent of all homeless Through a comprehensive review of the available academic research youth identify as and professional literature, we answer some basic questions, including lesbian, gay, bisexual or why so many LGBT youth are becoming and remaining homeless. transgender (LGBT). We report on the harassment and violence that many of these youth experience in the shelter system and we summarize research on critical problems affecting them, including mental health issues, substance abuse and risky sexual behavior. We also analyze the federal government’s response to youth homelessness, including the specific impact on LGBT homeless youth of increased federal funding for faith-based service providers. We also partnered with five social service agencies who have written sections that detail model programs they have developed to improve service delivery to LGBT homeless youth. In order to put a face to all of this research and data, we also include profiles of LGBT homeless youth, many of which were collected through focus groups we conducted at service providers around the country. Finally, in consultation with a number of youth advocacy organizations, we conclude with a series of state-, federal- and practitioner-level policy recommendations that can help to curb this epidemic.

1 Robertson, M. J. & Toro, P. A. (1998). Homeless youth: Research, intervention, and policy. United States Department of Health and Human Services. Retrieved June 3, 2005, from http://aspe.hhs.gov/progsys/homeless/symposium/3-Youth.htm 2 See pages 11-14 of the full report and the addendum beginning on p.162 for a more detailed summary of the available research on the proportion of homeless youth who identify as LGBT. Regarding the proportion of the U.S. population that identifies as LGB, the 1992 National Health and Social Life Survey found that 4.9 percent of men and 4.1 percent of women ages 18-44 report ever having a same-sex partner. The 2002 National Survey of Family Growth found that 4.1 percent of 18-44 year-olds identify as LGB. Analysis of 2006 National Exit poll (NEP) data found that 3 percent of voters identify as lesbian or gay (the NEP did not allow respondents to identify as bisexual or transgender). NEP and Voter New Service (VNS) polls since 1996 have found the number of lesbian and gay respondents to range from 3 percent to 5 percent. The available research on the proportion of the U.S. population that identifies as transgender is too limited to permit an accurate estimation.. 1 WHY ARE SO MANY LGBT YOUTH BECOMING HOMELESS? Family conflict is the primary cause of homelessness for all youth, LGBT or straight. Specifically, familial conflict over a youth’s sexual orientation or gender identity is a significant factor that leads to According to one study, 3 homelessness or the need for out-of-home care. According to one 26 percent of gay teens study, 50 percent of gay teens experienced a negative reaction from were kicked out of their their parents when they came out and 26 percent were kicked out of homes when they came their homes.4 Another study found that more than one-third of youth who are homeless or in the care of social services experienced a violent out to their parents. physical assault when they came out,5 which can lead to youth leaving a shelter or foster home because they actually feel safer on the streets.

WHAT IMPACT DOES HOMELESSNESS HAVE ON LGBT YOUTH SPECIFICALLY? Whether LGBT youth are homeless on the streets or in temporary shelter, our review of the available research reveals that they face a multitude of ongoing crises that threaten their chances of becoming healthy, independent adults.

MENTAL HEALTH ISSUES LGBT homeless youth are especially vulnerable to depression, loneliness and psychoso- matic illness,6 withdrawn behavior, social problems and delinquency.7 According to the U.S. Department of Health and Human Services, the fact that LGBT youth live in “a society that discriminates against and stigmatizes homosexuals” makes them more vulner- able to mental health issues than heterosexual youth.8 This vulnerability is only magnified for LGBT youth who are homeless.

SUBSTANCE ABUSE The combination of stressors inherent to the daily life of homeless youth leads them to abuse drugs and alcohol. For example, in Minnesota, five separate statewide studies found that between 10 and 20 percent of homeless youth self-identify as chemically dependent.9 These risks are exacerbated for homeless youth identifying as lesbian, gay or bisexual (LGB).10

3 Clatts, M. J., Davis, W. J., Sotheran, J. L. & Atillasoy, A. (1998). Correlates and distribution of HIV risk behaviors among homeless youth in New York City. Child Welfare, 77(2). See also Hyde, J. (2005). From home to street: Understanding young people’s transitions into homelessness. Journal of Adolescence, 28. p.175. 4 Remafedi, G. (1987). Male homosexuality: The adolescent perspective. Pediatrics, (79). 5 Thompson, S. J., Safyer, A. W. & Pollio, D. E. (2001). Differences and predictors of family reunification among subgroups of runaway youths using shelter services. Social Work Research, 25(3). 6 McWhirter, B. T. (1990). Loneliness: A review of current literature with implications for counseling and research. Journal of Counseling and Development, 68. 7 Cochran, B. N., Stewart, A. J., Ginzler, J. A. & Cauce, A. M. (2002). Challenges faced by homeless sexual minorities: Comparison of gay, lesbian, bisexual, and transgender homeless adolescents with their heterosexual counterparts. American Journal of Public Health, 92(5). pp.774-775. 8 Gibson, P. (1989). Gay male and lesbian youth suicide, vol. 3: Preventions and interventions in youth suicide. In Report of the secretary’s task force on youth suicide. Rockville, MD: U.S. Department of Health and Human Services. 9 Wilder Research. (2005). Homeless youth in Minnesota: 2003 statewide survey of people without permanent shelter. Author. Retrieved June 26, 2006, from http://www.wilder.org/download.0.html?report=410. p.27. 10 Van Leeuwen, J. M., Boyle, S., Salmonsen-Sautel, S., Baker, D. N., Garcia, J., Hoffman, A., & Hopfer, C. J. (2006). Lesbian, gay and bisexual homeless youth: An eight city public health perspective. Unpublished work. LGBT Youth 2 Homelessness Personal drug usage, family drug usage, and the likelihood of enrolling in a treatment program are all higher for LGB homeless youth than for their heterosexual peers.11

RISKY SEXUAL BEHAVIOR All homeless youth are especially vulnerable to engaging in risky sexual behaviors because their basic needs for food and shelter are not being A study of homeless met.12 Defined as “exchanging sex for anything needed, including youth in Canada found money, food, clothes, a place to stay or drugs,”13 survival sex is the last that those who identify resort for many LGBT homeless youth. A study of homeless youth in as LGBT were three times Canada found that those who identify as LGBT were three times more more likely to participate likely to participate in survival sex than their heterosexual peers,14 and in survival sex than their 50 percent of homeless youth in another study considered it likely or heterosexual peers. very likely that they will someday test positive for HIV.15

VICTIMIZATION OF HOMELESS LGBT YOUTH LGBT youth face the threat of victimization everywhere: at home, at school, at their jobs, and, for those who are out-of-home, at shelters and on the streets. According to the National Runaway Switchboard, LGBT homeless youth are seven times more likely than their heterosexual peers to be victims of a crime.16 While some public safety agencies try to help this vulnerable population,17 others adopt a “blame the victim” approach, further decreasing the odds of victimized youth feeling safe reporting their experiences.18

LGBT HOMELESS YOUTH AND THE JUVENILE AND CRIMINAL JUSTICE SYSTEMS While there is a paucity of academic research about the experiences of LGBT youth who end up in the juvenile and criminal justice systems, preliminary evidence suggests that they are disproportionately the victims of harassment and violence, including rape. For example, respondents in one small study reported that lesbians and bisexual girls are overrepresented in the juvenile justice system and that they are forced to live among a population of inmates who are violently homophobic.19 Gay male youth in the system are also emotionally, physically and sexually assaulted by staff and inmates. One respondent in a study of the legal rights of young people in state custody reported that staff members think that “[if] a youth is gay, they want to have sex with all the other boys, so they did not protect me from unwanted sexual advances.”20

11 Ibid., p.18. 12 Rosenthal, D. & Moore, S. (1994). Homeless youths: Sexual and drug-related behavior, sexual beliefs and HIV/AIDS risk. AIDS Care, 6(1). 13 Cited in Anderson, J. E., Freese, T. E. & Pennbridge, J. N. (1994). Sexual risk and condom use among street youth in Hollywood. Family Planning Perspectives, 26(1). p.23. 14 Gaetz, S. (2004). Safe streets for whom? Homeless youth, social exclusion, and criminal victimization. Canadian Journal of Criminology and Criminal Justice, 46(6). 15 Kihara, D. (1999). Giuliani’s suppressed report on homeless youth. The Village Voice, 44(33). 16 National Runaway Switchboard. (2005). Being out and safe: Helping GLBTQ youth in crisis. Author. 17 Dylan, N. (2004). City enters partnership to assist lesbian and gay homeless youth. Nation’s Cities Weekly, 27(10). 18 Bounds, A. (2002, September 24). Intolerance discussed BHS school offers weeklong focus on tolerance. Boulder Daily Camera. p.C3. See also: D’Augelli, A. R. & Hershberger, S. L. (1993). Lesbian, gay, and bisexual youth in community settings: Personal challenges and mental health problems. American Journal of Community Psychology, 21(4). See also: Arnott, J. (1994). Gays and lesbians in the criminal justice system. In Multicultural Perspectives in Criminal Justice and Criminology. Springfield, OH: C. Thomas Charles. 19 Curtin, M. (2002). Lesbian and bisexual girls in the juvenile justice system. Child and Adolescent Social Work Journal, 19(4). 20 Estrada, R. & Marksamer, J. (2006). The legal rights of young people in state custody: What child welfare and juvenile justice profes- sionals need to know when working with LGBT youth. Child Welfare, 85(2). Executive Summary 3 TRANSGENDER HOMELESS YOUTH Transgender youth are disproportionately represented in the homeless population. More generally, some reports indicate that one in five transgender individuals need or are at risk of needing homeless shelter assistance.21 However, most shelters are segregated by birth sex, regardless of the individual’s gender identity,22 and homeless transgender youth are even ostracized by some agencies that serve their LGB peers.23

THE FEDERAL RESPONSE TO YOUTH HOMELESSNESS Since 1974, when the federal government enacted the original Runaway Youth Act, there have been numerous pieces of legislation addressing youth homelessness. Most recently, the Runaway, Homeless and Missing Children Protection Act (RHMCPA) was signed into law by President George W. Bush in 2003 and is up for reauthorization in 2008.24 Among the most important provisions of this complex piece of legislation are programs that allocate funding for core homeless youth services, including basic drop-in centers, street outreach efforts, transitional living programs (TLPs) and the National Runaway Switchboard. While the law does not allocate funding for LGBT-specific services, some funds have been awarded to agencies who work exclusively with LGBT youth, as well as those who seek to serve LGBT homeless youth as part of a broader mission. Unfortunately, homeless youth programs have been grossly under funded, contributing to a shortfall of available spaces for youth who need support. In 2004 alone, due to this lack of funding, more than 2,500 youth were denied access to a TLP program for which they were otherwise qualified.25 Additionally, 4,200 youth were turned away from Basic Center Programs, which provide family reunification services and emergency shelter.26

THE POTENTIAL FOR ANTI-LGBT DISCRIMINATION AT FAITH-BASED SERVICE PROVIDERS Lack of funding is not the only obstacle preventing LGBT homeless youth from receiving the services they need. In 2002, President George W. Bush issued an executive order permitting federal funding for faith-based organizations (FBOs) to provide social services.27 While more and more FBOs are receiving federal funds, overall funding levels for homeless youth services have not increased. Consequently, there is a possibility that the impact of FBOs will not be to increase services to the homeless, but rather only to change who provides those services. A number of faith-based providers oppose legal and social equality for LGBT people, which

21 Cited in Mottet, L. & Ohle, J. M. (2003). Transitioning our shelters: A guide to making homeless shelters safe for transgender people. Retrieved June 12, 2006, from http://www.thetaskforce.org/downloads/TransHomeless.pdf 22 Ibid. 23 HCH Clinicians’ Network (2002, June). Crossing to safety: Transgender health & homelessness. Healing Hands, 6, pp. 1-6. 24 Public Law 108-96 for fiscal years 2004 through 2008. 25 Data compiled from the federally administered Runaway and Homeless Youth Management Information System (RHYMIS). 26 Project HOPE: Virginia education for homeless children and youth program. (2006). Runaway and Homeless Youth Act programs: Strengthening youth and families in every community. Author. Retrieved September 10, 2006, from http://www.wm.edu/hope/Seminar/ RHYA.pdf 27 White House Office of Faith-Based and Community Initiatives. (2006). President Bush’s faith-based and community initiative. Author. Retrieved August 31, 2006, from http://www.whitehouse.gov/government/fbci/mission.html LGBT Youth 4 Homelessness raises serious questions about whether LGBT homeless youth can access services in a safe and nurturing environment. If an organization’s core belief is that homosexuality is wrong, that organization (and its committed leaders and volunteers) may not respect a client’s sexual orientation or gender identity and may expose LGBT youth to discriminatory treatment.

For example, an internal Salvation Army document obtained by the If an organization’s Washington Post in 2001 confirmed that “…the White House had core belief is that made a ‘firm commitment’ to issue a regulation protecting religious charities from state and city efforts to prevent discrimination against homosexuality is wrong, gays in hiring and providing benefits.”28 Public policy that exempts that organization (and its religious organizations providing social services from non-discrimi- leaders and volunteers) nation laws in hiring sets a dangerous precedent. If an otherwise may not respect a client’s qualified employee can be fired simply because of their sexual sexual orientation or orientation or gender identity/expression, what guarantee is there gender identity and may that clients, including LGBT homeless youth, will be supported and expose LGBT youth to treated fairly? More research is needed on the policies of FBOs that discriminatory treatment. provide services for LGBT homeless youth.

THE EXPERIENCES OF LGBT HOMELESS YOUTH IN THE SHELTER SYSTEM The majority of existing shelters and other care systems are not providing safe and effective services to LGBT homeless youth.29 For example, in New York City, more than 60 percent of beds for homeless youth are provided by Covenant House, a facility where LGBT youth report that they have been threatened, belittled and abused by staff and other youth because of their sexual orientation or gender identity.30 At one residential placement facility in Michigan, LGBT teens, or those suspected of being LGBT, were forced to wear orange jumpsuits to alert staff and other residents. At another transitional housing placement, staff removed the bedroom door of an out gay youth, supposedly to ward off any homosexual behavior. The second bed in the room was left empty and other residents were warned that if they misbehaved they would have to share the room with the “gay kid.”31 LGBT homeless youth at the Home for Little Wanderers in Massachusetts have reported being kicked out of other agencies when they revealed their sexual orientation or gender identity. Many also said that the risks inherent to living in a space that was not protecting them made them think that they were better off having unsafe sex and contracting HIV because they would then be eligible for specific housing funds reserved for HIV-positive homeless people in need.32

28 Allen, M. & Milbank, D. (2001, July 12). Rove heard charity plea on gay bias. Washington Post. Retrieved September 25, 2006, from http://www.washingtonpost.com/ac2/wp-dyn/A48279-2001Jul11?language=printer. 29 Mallon, G. P. (1997). The delivery of child welfare services to gay and lesbian adolescents. In Central Toronto Youth Services, Pride and Prejudice: Working with lesbian, gay, and bisexual youth. Toronto: Central Toronto Youth Services. 30 Email communication between the author and the Empire State Coalition of Youth and Family Services. New York, NY. See also: Murphy, J. (2005). Wounded pride: LGBT kids say city-funded shelter for the homeless breaks its covenant. Village Voice. Retrieved September 10, 2006, from http://www.villagevoice.com/news/0517,murphy1,63374,5.html 31 Both examples were confirmed in personal conversations between the author and social service agency staff who had worked at the offending agencies, or had worked with youth who had resided at those agencies. 32 As confirmed by Colby Berger, LGBT training manager at Waltham House. Executive Summary 5 MODEL PROGRAMS TO IMPROVE SERVICE DELIVERY TO LGBT HOMELESS YOUTH Despite the potential for mistreatment of LGBT homeless youth by some agencies, there are others who set an example for their peers. Our five contributing homeless youth service providers represent the diverse range of agencies working with homeless LGBT youth, though they are by no means the only agencies doing great work. We hope that sharing their expertise will in turn help other agencies to improve the service and support they provide to this community. 1. Theresa Nolan of Green Chimneys in New York City discusses the role of transitional living programs in the continuum of care that LGBT youth experiencing homeless- ness might pass through. 2. Colby Berger of Waltham House in Massachusetts provides a case study of how her agency worked in collaboration with the state department of social services to train thousands of professional staff who work with homeless youth about LGBT issues. 3. Grace McClelland from the Ruth Ellis Center in Detroit, an organization that works primarily with homeless LGBT youth of color, provides a description of the Center’s street outreach and drop-in center programming. 4. Mary Jo Callan and Mia White from Ozone House in Ann Arbor, Michigan discuss how their staff created a LGBT-safe space at an agency that works predominantly with heterosexual youth. 5. Susan Boyle of Urban Peak in Denver, Colorado describes policies and procedures that make shelters safe and welcoming for transgender homeless youth.

CONCLUSION AND POLICY RECOMMENDATIONS This report concludes with a series of policy recommendations that can help to curb the epidemic of LGBT youth homelessness. While our focus in this publication and in these policy recommendations Homelessness is not is to address LGBT-specific concerns, we believe that homelessness is an issue that can be not an issue that can be tackled piecemeal. Wholesale improvement tackled piecemeal. is needed, and that is what we propose. Our recommendations are Wholesale improvement not intended to be an exhaustive list of every policy change that is needed, and that is would make the experience of homeless youth better. Rather, we what we propose. highlight some of the crucial problem areas where policy change is both needed and reasonably possible.

FEDERAL LEVEL RECOMMENDATIONS 1. Reauthorize and increase appropriations for federal Runaway and Homeless Youth Act (RHYA) programs. 2. Permit youth who are minors, especially unaccompanied minors, to receive primary and specialty health care services without the consent of a parent or guardian. 3. Develop a national estimate of the incidence and prevalence of homelessness among LGBT Youth 6 Homelessness American youth, gathering data that aids in the provision of appropriate services. 4. Authorize and appropriate federal funds for developmental, preventive and interven- tion programs targeted to LGBT youth. 5. Raise federal and state minimum wages to an appropriate level. 6. Broaden the U.S. Department of Housing and Urban Development’s definition of “homeless individual” to include living arrangements common to homeless youth.

STATE AND LOCAL LEVEL RECOMMENDATIONS 1. Establish funding streams to provide housing options for all homeless youth. Require that recipients of these funds are committed to the safe and appropriate treatment of LGBT homeless youth, with penalties for non-compliance including the loss of government funding. These funds would supplement federal appropriations. 2. Permit dedicated shelter space and housing for LGBT youth. 3. Repeal existing laws and policies that prevent single and partnered LGBT individuals from serving as adoptive and foster parents. 4. Discourage the criminalization of homelessness and the activities inherent to the daily lives of people experiencing homelessness. 5. Expand the availability of comprehensive health insurance and services to all low- income youth through the age of 24 via Medicaid.

PRACTITIONER LEVEL RECOMMENDATIONS 1. Require all agencies that seek government funding and licensure to serve homeless youth to demonstrate awareness and cultural competency of LGBT issues and popula- tions at the institutional level and to adopt nondiscrimination policies for LGBT youth. 2. Mandate individual-level LGBT awareness training and demonstrated cultural competency as a part of the professional licensing process of all health and social service professions. 3. Mandate LGBT awareness training for all state agency staff who work in child welfare or juvenile justice divisions.

CONCLUSION Once implemented, these policy recommendations will help not only LGBT homeless youth, but all youth abandoned by their family or forced to leave home. In this report, we extensively review the academic and professional literature on the myriad challenges faced by LGBT homeless youth. The research shows that despite these challenges, many of these youth are remarkably resilient and have benefited from support from agencies like those in our model programs chapters who have worked to ensure that youth feel safe, welcome and supported. Regardless of sexual orientation or gender identity, every young person deserves a safe and nurturing environment in which to grow and learn. It is our hope that this report will bring renewed attention to an issue that has been inadequately addressed for far too long.

Executive Summary 7 Introduction

I believe that one day, the Lord will come back to get me. Halleluiah. If I live right, halleluiah, I will go on to that righteous place. I believe that one day, halleluiah, all my trials, all my tribulations, they will all be over. I won’t have to worry about crying and suffering no more. I won’t have to worry about being disappointed, because my God, halleluiah, is coming back for me. Whether I’m a man with a dress and a wig, My God will love me for who I am! I might not walk like I’m supposed to walk. I might not have sex with who I’m supposed to have sex with. My God will love me for who I am! So don’t worry about me, worry about yourself. Because as long as my God believes in me, I’m not worried about what folks say, halleluiah. —Ali Forney A homeless transgender youth in New York City, speaking at the Safe Space talent show in 1996 Ali Forney, a homeless African-American transgender youth, recited this poem while enjoying his33 favorite event of the year: talent night at Safe Space, a program for homeless youth in New York City. It was December 1996, and after years of homelessness, drug abuse and prostitution, Ali was dedicating much of his time to helping other homeless lesbian, gay, bisexual and transgender (LGBT) youth. The poem declared his convic- tion that he had a right to live a life based on honesty and integrity, despite the hurt he had experienced. Less than one year after Ali spoke at the talent show, Carl Siciliano, today executive director of the Ali Forney Center for LGBT homeless youth in New York City, spoke the same words in tribute at Ali’s funeral after he was murdered by a still-unidentified assailant at 4 a.m. on a cold winter night. We begin by summarizing Ali’s story

33 Carl Siciliano, executive director of the Ali Forney Center, confirms that Ali identified as both gay and transgender, sometime referring to himself as “he” and at other times referring to herself as “she.” Sometimes he went by his given name, and at other times she went by the name “Luscious.” In this profile, we have used male pronouns because that is the form adopted by the various media sources we cited. LGBT Youth 8 Homelessness because it reflects so many of the issues we cover in this publication. At the time of his death, Ali was working with staff at Safe Horizon’s Streetwork program as an outreach worker, helping other homeless youth.34 He was determined to repay the agency, which had helped him get a Social Security card, medical insurance and his GED, by educating his peers. “I became a peer educator because I see so many HIV-infected people on the stroll. Even now, there are people who don’t know how to use condoms.”35 Despite his outreach work educating less-informed street workers, Ali continued to trick and it was not his only high-risk behavior. He readily admitted to being a drug addict, commenting that his crack cocaine use became a habit “because it eased the degradation and fear of selling himself.”36 Ali’s honest assessment of his drug use is reflective of the available academic literature, which attests WHAT IS THE DEFINITION OF to the prevalence of drug use among LGBT “HOMELESS YOUTH?” homeless youth and its impact on other risky The definition of homeless youth includes youth who behaviors. are living on the streets or in shelters, runaways who have voluntarily left a dangerous or otherwise unde- As was the case for Ali, so much of what leads sirable home environment, “throwaways” whose parents or guardians have kicked them out and ado- to homelessness among LGBT youth can be lescents who have aged out of foster care or state traced to experiences at home. He grew up custody and have nowhere to go. with his single mother in a housing project in A number of different definitions of “youth” and a violent area of , “a world of poverty- “homeless” are used by government agencies and, blighted high-rises, beat-up cars, stark store as we discuss in this publication, this type of incon- 37 sistency makes it difficult to optimize service delivery fronts and warehouses.” It was certainly not or determine the level of funds really needed to serve an easy place for a transgender youth to live. the population. He spent years getting into trouble at school, Many studies of homeless youth do not include a involved in petty criminal activity, and he was detailed breakdown of those surveyed, disregard- only 13 when he was sent to live in a group ing whether they are on the streets or temporarily housed. We provide this explanation to ensure the home for troubled youth. reader is aware of the inconsistencies in the system and the attendant literature. Our policy recommenda- Ali ran away from the group home within tions address some of the problems that emerge from months and spent years bouncing around the these inconsistencies. foster care system, ultimately abandoning foster placements in favor of the streets. He lived in a number of different homes and was institutionalized at one point after he barricaded himself in a room in response to harassment from other teens.38 This “blame the victim” attitude is one that a number of service providers said is all too common among agencies working with LGBT homeless youth. Factors just like those in Ali’s life have an influence on intrafamily conflict, which is a primary reason why LGBT youth disproportionately become homeless. When Ali was 13, he began working as a prostitute, making $40 or $60 from each client. He said it made him feel wealthy “like Donald Trump,” though in reality he was barely surviving. His experience reflects that of many homeless LGBT youth who engage in survival sex to secure shelter or a meal.

34 For more information, see www.safehorizon.org. 35 Foley, D. (1996, February). AIDS education for teen prostitutes - New York Peer AIDS Education Coalition. The Progressive. p.19. 36 Carter, C. (1999, August 28). A life and death on NYC streets. Retrieved September 27, 2006, from http://www.aliforneycenter.org/ap- article.html 37 Ibid. 38 Ibid. 9 This dizzying spiral of lost opportunities is not an easy one to escape. Ali tried. After living at Streetwork for a year, he, like many other displaced youth, tried to reunite with his family. Research suggests that family involvement in the lives of homeless youth can have a positive impact, but all too often is impossible or simply absent. Ali’s effort lasted no more than a few days and he landed back at the agency. The fact that he identified as transgender and gay was just one of the issues that made reunification harder. Ali’s life and death is a tragic example of This publication is a what can happen when LGBT youth are forced onto the streets as reference document their only escape from a bad home or shelter environment. for the causes and This report comprehensively addresses some basic questions. How consequences of LGBT many LGBT homeless youth are there? And, what are the specific youth homelessness, experiences of LGBT youth in the existing shelter and homeless and provides a series of services system? We summarize the history of the federal response to policy recommendations youth homelessness, highlighting the federal programs and funding that can help to curb streams available to homeless youth services providers as well as the this epidemic. impact on LGBT homeless youth of recent efforts to fund faith- based services. We provide a comprehensive literature review of the academic research on critical issues affecting this population, including mental health issues, substance abuse and risky sexual behavior. In order to put a face to all of the research and data we summarize, we also include profiles of and quotes from LGBT homeless youth. Many were collected through focus groups we conducted at homeless LGBT youth services providers around the country. We also partnered with five services providers, who have written sections of this report that detail model service delivery programs they have developed for providing a wide variety of services to LGBT homeless youth. Finally, in consultation with a number of youth advocacy organizations, we conclude with a series of policy recommendations that can help to curb this epidemic of LGBT youth homelessness.

LGBT Youth 10 Homelessness How many LGBT homeless youth are there and why do they become homeless?

Providing an accurate answer to the question of how many lesbian, gay, bisexual, trans- gender (LGBT) homeless youth there are is no easy task. Given the multiple definitions of homelessness and the variety of subpopulations that might or might not be included in any count, it is not possible to provide the specific number of homeless LGBT youth in the United States at any given point in time. Should such a count include only LGBT youth on the streets who literally lack a roof over their heads each night? Should it also include A note on acronyms any youth who is in an out-of-home care situation, such as The reader should also bear in mind an emergency shelter or transitional living program? What that as time has passed, the acronyms about LGBT youth who are “couch surfing,” moving from one used to describe this community friend’s home to another to avoid staying on the streets?39 have expanded. As elsewhere in this report, we use LGBT to describe One of the constant concerns surrounding the kind of the community we are interested survey research that is used throughout this study to learn in when we are talking broadly or about homeless youth is that respondents are self-reporting citing literature that also uses this in response to posed questions. They might lie, exaggerate, broad definition. However, much of or exclude important information out of fear. Whitbeck and the literature makes no reference to bisexual or transgender youth, and Hoyt conducted a study of homeless youth and their families to where that is the case we reference 40 address this concern. They interviewed a sample of parents or only the specific community that an caregivers in addition to homeless youth themselves about the author identifies. reasons for family breakdown. They found that these second interviews generally back up youth claims that they are escaping abusive, low-supervision spaces where parental warmth is lacking. It is surprising that a parent or caregiver would confirm the reality as presented by their child rather than seeking to deny problems or to transfer responsibility to the child. Ideally, in order to provide appropriate services, we need to know the total homeless count: young and old; LGBT and straight; urban, suburban and rural. We can then assess how many youth on any given night are experiencing temporary or long-term homelessness, defined as absence from what might be labeled their permanent home. As we will discuss shortly, conducting such a count is a process laden with all sorts of methodological and political obstacles. However, around the country local organizations

39 Glassman, A. (2006, January 20). Center will reach out to homeless youth this summer. Gay People’s Chronicle. p.3. 40 Whitbeck, L. B. & Hoyt, D.R. (1999). Nowhere to grow: Homeless and runaway adolescents and their families. Hawthorne, NY: Aldine de Gruyter. 11 have conducted counts that enable us to provide at least some idea of how many LGBT youth are experiencing homelessness in the United States. Regardless of the specific numbers, there is a growing awareness that the number of LGBT youth experiencing homelessness is on the rise from already high figures.41 This could be due in part to the fact that youth are now coming out in their early teens,42 with one recent report citing an average of 13 years old.43 Another contributing factor is the scarcity of care options once a child has left home. When LGBT youth leave home, voluntarily or otherwise, they are more likely than their heterosexual peers to end up living on the streets rather than in a state care facility.44 With foster care the preferred destination, social workers try to find a temporary home for each youth, but …there is typically a dearth of available foster families to begin with, and few are willing to work with young people who have emotional or behavioral problems. Fewer still are interested in fostering LGBT youths, many of whom arrive with emotional and behavioral issues as a result of the 45 homophobia they’ve endured. Ideally, in order to For those who cannot be placed in foster homes, group homes may provide appropriate be the next best choice, though anti-LGBT attitudes are common services, we need there as well.46 Often, they are sufficiently hostile that youth would to know the total rather live on the streets. homeless count: To determine an estimate of the LGBT homeless youth population, young and old; LGBT we first need estimates of the number of homeless or runaway and straight; urban, youth overall. Thompson et al., in their study analyzing Runaway suburban and rural. and Homeless Youth Management Information System (RHYMIS) data, cite estimates of 575,000 to 1,000,000 youth who run away or are forced to leave their parental home in any given year.47 One estimate set the number nationwide at 1.3 million,48 while a 1998 U.S. Department of Housing and Urban Development report suggested that 1.6 million youth are homeless or run away each year.49 By surveying respondents to the National Health Interview Study, Ringwalt et al. estimate that 5 percent of youth, or approximately one million, experience homeless- ness in any given year.50 Whitbeck and Simons estimate that one child in eight will run away at some point before they turn 18, and fully 40 percent of these do not return to the place from which they ran away.51 Few cities have conducted a large scale count. As of the late 1990s, advocates estimated

41 Thompson, S. J. et. al. (2001). 42 Kim, E. K. (2006, July 3). Many gay teens are coming out at earlier ages. St.Louis Post-Dispatch. Retrieved September 1, 2006, from http://www.fortwayne.com/mld/newssentinel/living/14957350.htm 43 PlanetOut gay & lesbian news. (2006, October 11). Average coming-out age now 13, survey finds. Author. Retrieved October 12, 2006, from http://www.planetout.com/news/article.html?2006/10/11/4 44 Berger, C. (2005). What becomes of at-risk gay youths? The Gay & Lesbian Review Worldwide. 45 Berger, C. (2005). p.24. See also Sullivan, R. T. (1994). Obstacles to effective child welfare service with gay and lesbian youths. Child Welfare, 73(4). 46 Berger, C. (2005). p.24. 47 Thompson, S. J. et. al. (2001). 48 Sanchez, R. (2004, December 20). Facing up to homeless youths. Denver Post. p.A1. 49 Robertson, M. J. & Toro, P. A. (1998). 50 Ringwalt, C. L., Greene, J. M., Robertson, M. & McPheeters, M. (1998). The prevalence of homelessness among adolescents in the United States. American Journal of Public Health, 88(9). p.1327. 51 Whitbeck, L. B. & Simons, R. L. (1990). Life on the streets: The victimization of runaway and homeless adolescents. Youth and Society, 22(1). LGBT Youth 12 Homelessness that upwards of 20,000 homeless youth were living on the streets of New York,52 while a 2002 report suggested the number stood somewhere between 15,000 and 20,000.53 In 2004, the U.S. Conference of Mayors suggested that unaccompanied youth make up 5 percent of the total urban homeless population, up from 3 percent in 1998.54 Ringwalt et al.’s study also addresses race and ethnicity, citing one national study that found no demographic differences between homeless people and the general population.55 However, other studies have suggested that racial and ethnic minorities may actually be overrepresented in the homeless youth population.56 When it comes to counting or estimating the number of LGBT youth experiencing homelessness, the existing literature provides a wide range of figures. Despite this variance, there is a consensus that LGBT youth represent a significant proportion of the homeless youth population. In 1985, the National Network of Runaway and Youth Services (now the National Network for Youth) estimated that only 6 percent of homeless adolescents identified as gay or lesbian.57 They have subsequently revised this estimate upwards to a range of 20 percent to 40 percent.58 Other studies from the early to mid-1990s reported that 3 percent to 10 percent of homeless youth were gay or lesbian. However, more recent studies and ample anecdotal evidence from social service professionals suggest that the proportion of LGBT youth in the overall homeless youth population is significantly higher than their proportion in the U.S. population as a whole.59 Clatts et al. estimate that among combined homeless and street-involved popula- tions,60 35 percent are LGBT, while among street youth only, the figure might climb as high as 50 percent.61 A study of unaccompanied homeless youth in Illinois reported a statewide figure of 14.8 percent who identified as LGB, “questioning” or “something else.” According to a report published in 2005, in the city of Chicago and immediately surrounding Cook County, the rate for these groups was 23.1 percent and 22.4 percent respectively.62 In Decatur, Illinois, a youth group surveyed homeless youth and found that 42 percent

52 Holloway, L. (1998, July 18). Young, restless and homeless on the piers; reaches out to youths with plan for shelter and services. New York Times. Retrieved September 20, 2005, from http://query.nytimes.com/gst/health/article-printpage.html?res= 9C05E5DE1330F93BA257 53 Nolan, T. (2004). Couch-surfers: Invisible homeless youth. In the Family. p.21-22. 54 U.S.Conference on Mayors (2004). A status report on hunger and homelessness in American’s cities: 2004. U.S. Conference of Mayors. Retrieved September 22, 2006, from www.sodexhousa.com/HungerAndHomelessnessReport2004.pdf 55 Ringwalt, C. L. et. al. (1998). 56 McCaskill, P. A., Toro, P. A. & Wolfe, S. M. (1998). Homeless and matched housed adolescents: A comparative study of psychopa- thology. Journal of Clinical Child Psychology, 27(3). Cited in Robertson, M. J. & Toro, P. A. (1998). 57 National Network of Runaway and Youth Services [now the National Network for Youth]. To whom do they belong? A profile of America’s runaway and homeless youth and the programs that help them. Washington, DC: Author. 58 Cited in Dylan Nicole, d. K. (2004). City enters partnership to assist lesbian and gay homeless youth. Nation’s Cities Weekly, 27(10). 59 Task Force Policy Institute analysis of the available representative data suggests that 3 to 5 percent of the U.S. population identifies as lesbian or gay. The 1992 National Health and Social Life Survey found that 4.9 percent of men and 4.1 percent of women ages 18-44 report ever having a same-sex partner. The 2002 National Survey of Family Growth found that 4.1 percent of 18-44 year-olds identify as LGB. Analysis of 2006 National Exit poll (NEP) data found that 3 percent of voters identify as lesbian or gay (the NEP did not allow respondents to identify as bisexual or transgender). NEP and Voter New Service (VNS) polls since 1996 have found the number of lesbian and gay respondents to range from 3 percent to 5 percent. The available research on the proportion of the U.S. population that identifies as transgender is too limited to permit an accurate estimation. 60 Street-involved youth are those who have a home to which they can and often do return at night. However, for a multitude of reasons they choose to involve themselves with youth living on the streets, often becoming accepted members of the community of youth. In New York City, for example, there are youth who skip school and/or stay out late at night to hang out with homeless youth on the Hudson River piers. 61 Clatts, M. J. et. al. (1998). Cited in Dame, L. (2004). 62 Johnson, T. P. & Graf, I. (2005, December). Unaccompanied homeless youth in Illinois: 2005. Chicago, IL: Survey Research Laboratory - University of Illinois Chicago. p.46. How many, and why? 13 identified as LGB, while service providers in Los Angeles estimated that between 25 and 35 percent of homeless youth there are lesbian or gay.63 In Portland, Oregon, one homeless youth service provider estimated that their LGB clientele climbed from 20 percent64 to approximately 30 percent of youth between 1993 and 1994.65 This same proportion was noted by Rob McDonald, a project coordinator with a welfare agency in Ottawa, Canada.66 The city of Seattle’s Commission on Children and Youth found that approximately 40 percent of homeless youth identified as lesbian, gay or bisexual.67 Unfortunately, because of the fear many young people have about acknowledging to themselves or others during a survey that they are lesbian, gay, bisexual and/or transgender, these figures are likely an undercount of the true proportion of LGBT homeless youth. What is absolutely clear is that regardless of the The proportion of actual number of LGBT people in the overall population, a dispro- LGBT youth in the portionate share of the nation’s homeless youth identify as LGBT. overall homeless youth While the estimates we cite are biased toward large cities, youth home- population is significantly lessness, LGBT or otherwise, is not just an urban problem. Ringwalt et higher than their al. confirm that this is a problem in rural and suburban America too. proportion in the U.S. Among street youth, however, there is a clear bias towards major West population as a whole. and East Coast cities.68 While some may run away to certain places for cultural reasons, there is no literature addressing this specifically. However, most youth who run away do not run far. Van Houten and Golembiewski found that 72 percent of their survey respondents at 17 runaway and homeless youth programs nationwide were from the immediate geographic area.69 In the case of LGBT street youth in particular, conversations with service providers suggest that there is a somewhat romanticized notion of leaving the homophobic hometown behind to find acceptance in New York City, Los Angeles or San Francisco.70

BARRIERS TO A MORE ACCURATE COUNT There is a long history in the United States of counting people in order to make a variety of policy determinations. After all, if government is to appropriately allocate resources and services, then it needs some idea of who people are and where they live. The U.S. Constitution mandates that the federal government conduct a Census every decade. The results of that decennial Census have a profound impact on every part of the public policy process, from how many dollars a particular state receives of a block grant to address drug treatment, to how many Congressional House districts each state is allocated. In the United States, Census forms are mailed to every household in the nation and

63 Cited in Truong, J. (2004). Homeless LGBT youth and LGBT youth in foster care: Overview. The Safe Schools Coalition. Retrieved June 3, 2005, from http://www.safeschoolscoalition.org/RG-homeless.html 64 Ibid. 65 Krisberg, K. (2002). Oregon clinic increases health care access for homeless youth. Nation’s Health, 32(7). 66 Truong, J. (2004). 67 Dylan Nicole, d. K. (2004). 68 Cited in Robertson, M. J. & Toro, P. A. (1998). p.4. 69 Ibid. p.28. 70 Conversations between the author and a number of service providers around the United States. LGBT Youth 14 Homelessness Census Bureau enumerators follow up with households for which no form has been returned. No Census methodology is perfect, and for many reasons it is impossible to count everyone. While the process is time-consuming and there are naturally exceptions to the rule, it is relatively easy on any given day to count the number of people who live in a given apartment. Extrapolate that reality across the country, and the government is able to obtain a reasonably accurate nationwide count of the most stable sectors of society. However, there are many people who are not as easily reached, particularly people experiencing homelessness.71 Finding an appropriate time of year to do a count means factoring in weather and a number of regional variables that might impact the success of a count in a particular location on any given day. Additionally, many homeless youth will consciously avoid anyone who looks like an authority figure. Many people experiencing homelessness, including youth, tend to be constantly mobile or congregate in areas where access is not always easy, such as abandoned buildings.72,73 There are other obstacles: the number of people needed to conduct such a count is large, and the training required to ensure consistency across all areas would be complex. But the consequences of not finding a solution to this lack of critical data are far worse than those of overcoming logistical difficulties. An accurate count of people experiencing homelessness is crucially important because many services for this population are provided using federal funds. The allocation of federal funds is often based on population counts conducted during the Census. Without an accurate count of how many people are experiencing homelessness or living on the streets in any city, it is difficult to confirm crucial characteristics of the population experiencing homelessness or to secure necessary increases in funding. This gap in data inevitably impairs service delivery.74 Politics may also play into these kinds of decisions. Some believe that the lack of an accurate count of the nation’s homeless population provides an excuse for politicians and public policy administrators to avoid dealing with the issue comprehensively. Advocates for homeless people and politicians have often clashed over how many people experience homelessness and the funds needed to serve them appropriately. Some claim that an accurate count is not possible, which if true means that there is at best only a rough relationship between need and resources. In the words of one homeless advocate, “They don’t want to find them because then they would have to provide services for them.”75 A national and representative count of people experiencing homelessness, including those who are LGBT youth, would enable unprecedented targeting of services and funds. The benefits of having such a count, along with the resulting data, would move us beyond a situation often faced today when advocates promote particular populations’ needs and service providers seek funding for those populations but lack the data to justify it. For example, because our information about homeless LGBT youth is so uncertain, it is often difficult to persuade policy-makers to allocate scarce resources to serve this population.

71 Ringwalt, C. L., Greene, J. M., Robertson, M. & McPheeters, M. (1998). The prevalence of homelessness among adolescents in the United States. American Journal of Public Health, 88(9). 72 Ibid. 73 For further discussion of problematic aspects of conducting a count of people experiencing homelessness, see Seper, C. (2006, January 17). Counting gay youths who are homeless. Cleveland.com. Retrieved January 17, 2006, from www.cleveland.com 74 Ringwalt, C. L. et. al. (1998). p.1325. 75 Kihara, D. (1999, August 24). Giuliani’s suppressed report on homeless youth. The Village Voice. 44(33). Retrieved October 2, 2006, from http://www.villagevoice.com/news/9933,kihara,7688,5.html How many, and why? 15 When funds are requested for providing services to LGBT homeless youth, politicians and policymakers ask for data to help justify the request. Obtaining an accurate nation- wide count that includes information about sexual orientation and gender identity would finally provide irrefutable evidence of the significant scale of homelessness and, more specifically, the fact that LGBT homeless youth are disproportionately represented among the overall homeless youth population. A proper count could help advocates around the country persuade federal, local and state agencies to increase funding to provide safe space76 and adequate support services for these youth. It would also enable advocacy organizations to point to specific data demonstrating their own communities’ needs.

WHY DO YOUTH BECOME HOMELESS? The reasons for deciding to leave home or for being thrown out are almost as varied as the number of young people who find themselves homeless in any given year. Still, simply put, conflict at home is the primary cause of a youth becoming homeless. Precipitating issues might involve educational problems, drug or alcohol abuse, communication breakdown, religious conflict or a desire for independence. Conflict over a youth’s sexual orientation or gender identity can all too often be the deciding factor in landing a young person on the streets or in out-of-home care.77 Regardless of the ultimate reason, youth face short and long term consequences. Critical developmental processes are usually affected, as Rosenheck et al. make clear: Consolidation of one’s identity, separation from one’s parents and preparation for independence are key developmental tasks of adolescence and critical for becoming a well-functioning adult in our society. Most adolescents prepare for this transition to adulthood in their homes and school… these [homeless] adolescents are generally ill-equipped for independent living and many become easy prey for predators on the streets.78 Twenty-six percent of all SEXUAL ORIENTATION AND GENDER IDENTITY ISSUES LGBT disclosures were According to one study, 50 percent of gay males experienced a nega- met with a demand that tive parental reaction when they came out and 26 percent of those 79 the youth leave home. disclosures were met with a demand that the youth leave home. In the case of Kurt Dyer, In the case of Kurt Dyer, this meant packing his entire life into six this meant packing his trash bags at the age of 16 and moving in with a friend’s family. Kurt was lucky; as he puts it, the biggest choice he had to make after entire life into six trash leaving was the question his friend’s parents posed: “What color do bags and moving in you want to paint your new room?”80 Obviously Kurt’s experience with a friend’s family.

76 When we say safe space, we mean a space where homeless youth can go and safely receive services and support without fear of discrimi- nation on any basis and without the fear that sometimes accompanies youth experiences at adult shelters. 77 Clatts, M. J. et. al. (1998). 78 Rosenheck, R., Bassuk, E., & Salomon, A. (2006). Special populations of homeless Americans. United States Department of Health and Human Services. Retrieved June 3, 2005, from http://aspe.hhs.gov/progsys/homeless/symposium/2-spclpop.htm 79 See Gibson, P. (1989b). Gay male and lesbian youth suicide. In Report of the Secretary’s Task Force on Youth Suicide. Washington, D.C.: U.S. Department of Health and Human Services.; Remafedi, G. (1987). Cited in Sullivan, C., Sommer, S. & Moff, J. (2001). Youth in the Margins: A Report on the Unmet Needs of Lesbian, Gay, Bisexual, and Transgender Adolescents in Foster Care. Lambda Legal Defense & Education Fund. 80 Dyer, K. (2006, January 31). Kicked out? Drop in. The Advocate. p.20. LGBT Youth 16 Homelessness is not typical, but his determination to succeed in the long term is common. We discuss the resiliency of homeless LGBT youth later in this report. Kurt’s resilience in the face of familial rejection is amply demonstrated by his rise to serve as Director of Youth Services at the Milwaukee LGBT Community Center. Another youth named James, who ended up at the Home for Little Wanderers’ Waltham House program for LGBT youth, described an all-too familiar scenario. A snooping parent sees or reads something alluding to their child’s sexual orientation or gender identity and panics. In James’ case, he came home and was met by his mother demanding, “You’re going to be straight or you’re not going to live here anymore.”81 When sexual orientation or gender identity is at the heart of the problem, the social service system is not set up to facilitate a positive outcome. If action could be taken prior to a youth’s running away “I spoke to my momma’s or being thrown out, then there might be the potential to avoid this boyfriend’s uncle, and undesirable outcome. However, this rarely happens. And when the he was like, ‘What? You juvenile court or child welfare systems seek to find a route to family talking to me? I don’t reunification, it rarely involves engaging caregivers in a conversation speak to faggies. I shoot about accepting the sexual orientation or gender identity of their child, even if it is clearly the primary cause of familial conflict. More faggies.’ It’s messed up.” often than not, ––An 18-year-old homeless African- …parents are not helped to move past the problems that disrupted American gay male from the continuity of their relationships with their children, and Detroit, Michigan. sexual minority children may be deprived of any opportunity to resolve the conflicts associated with those relationships.82 The potential for sexual orientation or gender identity issues to cause conflict that in turn may lead to an episode of homelessness can be mitigated depending on the nature of the relationship between parents and their children. A number of variables contribute to the functionality of family relationships, which one researcher has split into four categories:83 1. In functional relationships, the child is “out” about his or her sexual orientation and the family accepting. The child may or may not live at home, but that situation is not related to any family/parental issues with their sexual orientation. 2. In the case of strained relationships, the child is out but his/her sexual orientation is problematic. The child is discriminated against, perhaps physically or sexually abused in the home, and more likely to be driven to run away. 3. In the case of separated relations, the child has left and may be either homeless or staying with friends, but the parent-child relationship has broken down, perhaps irretrievably. 4. With a deceptive relationship, things are potentially more precarious, though in the short term safer. The child wants to tell his/her parents the truth but fears the consequences of doing so and lies about what activities he or she is involved in and with whom they are involved. Youth confirmed that short of a guarantee of parental

81 Wen, P. (2002, October 22). For gay teens, a place to call home - state facility third in nation to address their specific needs gay, bisexual teens have a new place they can call home. Boston Globe. p.B1. 82 Sullivan, R. T. (1994). 83 Maitra, R. (2002). The homeless community of the piers. The Gay & Lesbian Review Worldwide, 9(2). How many, and why? 17 acceptance and ongoing financial and spiritual support if they come out, this secrecy seemed like the best option in order to remain at home. One homeless youth, in rhetorically addressing housed youngsters contemplating telling their parents that they are lesbian, gay, bisexual, transgender and/or queer, explained why deception was the way to go: “I’m living proof. There is nothing here for you. Stay at home and wait till you can live on your own. Then tell them.”84 “I haven’t come out PHYSICAL OR SEXUAL ASSAULT to my daddy yet, and Physical abuse in the home is a consistent factor leading to homeless- I don’t think I want to ness, with 40 percent to 60 percent of all homeless youth saying it 85 do that, because I love contributed to their no longer living at home. In Minnesota, one my life and I want to study of homeless youth and those in the care of the child welfare live it. That would put system found that 35 percent of runaway youth, 36 percent of throwaway youth and 56 percent of youth in the state child welfare me six feet under.” system experienced physical assault when they came out.86 Gaetz cites ––18-year-old African- additional research that suggests street youth are five times as likely American homeless as domiciled youth (youth living in stable homes) to report instances gay male from of sexual abuse as a child.87 Homeless youth, regardless of sexual Detroit, Michigan. orientation or gender identity, experienced more maltreatment and lived in more conflict-ridden situations than did their still-housed contemporaries.88 Unfortunately, parents’ reactions to the discovery that a son or daughter is LGBT can lead to physical or sexual assault, and this assault can become the immediate reason for a youth becoming homeless.89 More research is needed because fully one-third of all LGBT youth are assaulted by a parent or other family member as a result of disclosing their sexual orientation.90 Coming out can be a healthy step, but not when there is a real risk of physical and/or emotional harm. LGBT youth become an easy target for adult caretakers. According to one study, more than 30 percent of lesbian and gay people have suffered physical violence at the hands of a family member.91 As one New York City gay youth put it in describing his alcoholic mother’s propensity for physical violence, “If she couldn’t find the television remote

84 Ibid. p.11. 85 Robertson, M. J. & Toro, P. A. (1998). 86 Wilder Research. (2005). 87 Gaetz, S. (2004). p.426. 88 Ibid. 89 Thompson, S. J. et. al. (2001). 90 Ricks, S. (2003, December 1). Hard-won R-E-S-P-E-C-T: Portland high school’s gay-straight alliance can point to real, if painstaking, progress in its campaign for tolerance and acceptance. Portland Press Herald. p.8B. 91 See Gibson, P. (1989). 92 Jacobs, A. (2004, June 27). For young gays on the streets, survival comes before pride, few beds for a growing class of homeless. The New York Times. Retrieved June 27, 2006, from http://query.nytimes.com/gst/fullpage.html?sec=health&res=9D02EFDB1738F934A15 755C0A9629C8B63 LGBT Youth 18 Homelessness because it was under a pile of clothing, she’d beat me.”92 This came after he had already endured repeated sexual assaults at the hands of his aunt.

ADDITIONAL FACTORS THAT LEAD TO HOMELESSNESS In a study of homeless youth conducted in Calgary, Alberta and Lethbridge, Alberta, respon- dents mentioned several contributing factors that led to their no longer living at home:93,94 • Parental marriage breaking down or conflict in melded stepfamilies • Perception of a lack of nurturing from parents • Physical violence in the home, even if it was not directed at the youth • Drug and alcohol abuse by parents • Parental involvement with the criminal justice system As one young person from the study described, My Mom and Dad… things just started getting out of hand… My Dad, well, he’s in jail for, I don’t know what he did but, he broke her tibia and my Mom, she’s getting heavily into drinking like, “Basically, I live my life and I guess she got put in jail and we got sent to social services.95 as a lie. Or I try to,” Instability at home naturally causes tension that can impact youth —Homeless 19-year- regardless of their sexual orientation or gender identity. When that old lesbian from Ann instability leads to a separation of the parents, the odds of a child Arbor, Michigan, running away and ending up on the street immediately increase. as she thinks about Hagan and McCarthy confirm that youth from intact families are how uncomfortable less than one-fifth as likely to be on the streets and homeless.96 In her mother is with a study of 50 homeless youth aged 18 to 23, 75 percent came from her sexuality. single parent households.97 Similarly, the kind of treatment meted out to children by their parents can have a direct impact on their odds of ending up on the streets. Hagan and McCarthy created a measure of “coercive parental control” (i.e., physical abuse) and found that a one-point increase on this scale correlated with doubled odds of a young person ending up homeless on the street.98 It is important to bear in mind that none of these studies found causal relationships; rather, they discuss correlations between homelessness and a variety of potentially contributing variables. This kind of instability and lack of permanence in a young person’s life can go back many years.99 In and out of different care settings for all manner of reasons, including violence,

93 Miller, P., Donahue, P., Este, D. & Hofer, M. (2004). Experiences of being homeless or at risk of being homeless among Canadian youths. Adolescence, 39(156). 94 For a parallel discussion of many of these issues, see also Rew, L., Taylor-Seehafer, M., Thomas, N. Y. & Yockey, R. D. (2001). Correlates of resilience in homeless adolescents. Journal of Nursing Scholarship, 33(1). 95 Miller, P. et. al. (2004). p.740. 96 Hagan, J. & McCarthy, B. (1992). Streetlife and delinquency. The British Journal of Sociology, 43(4). p.547. 97 Hyde, J. (2005). p.175. 98 Hagan, J. & McCarthy, B. (1992). p.547. 99 Kipke, M. D., Palmer, R. F., LaFrance, S. & O’Connor, S. (1997). Homeless youths’ descriptions of their parents’ child-rearing prac- tices. Youth and Society, 28(4). 100 Miller, P. et. al. (2004). p.741. 101 Wilder Research. (2005). 102 Ibid. How many, and why? 19 criminality and drug or alcohol abuse in the home, many homeless youth do not feel a sense of belonging to the place arbitrarily labeled “home.”100,101 This instability can be caused not only by behavioral problems but also because of economic hardship caused by parental unemployment.102 Often a variety of issues, including sexual orientation or gender identity, can motivate a breakdown in communication that ulti- mately leads a young person to leave home. This does not mean the “My mom (is) a coke youth is always chased out by family members. Some youth fear that addict. Addictive because their sexual orientation or gender identity will disappoint personality, you their parents, they need to find an alternative space where they can know. All my cousins, be respected and optimize their chances of succeeding in life.103 alcoholics, crack heads, Parental or sibling drug use at home sets a dangerous precedent and and I just know I have creates a dangerous environment for young people. However, escaping to stay away from that behavior necessarily leads to new forms of instability.104,105 In a it, because I have an study of homeless youth in Minnesota, 24 percent cited substance addictive personality.” abuse at home as a reason for not being at home,106 as did 30 percent –– Spoken by a homeless in a study of homeless youth in Los Angeles.107 19-year-old lesbian from Performing below their own or their parents’ expectations academi- Ann Arbor, Michigan. cally may be one factor that leads to homelessness. For example, 12 percent of homeless youth in Los Angeles stated that educational performance was a factor,108 while other studies have found that up to 35 percent of homeless youth report that they were held back a year in school.109 Educational failure can lead to either being kicked out for not having done well enough, or walking out for fear of being seen as a failure. Well-meaning parents know the value of education. Undue pressure on any child, regardless of the best intentions underlying that pressure, can lead to conflict.110 A young person with educational goals is also less likely to run away and wind up on the streets. Any youth experiencing conflict at school, as do at least 80 percent of LGBT youth, has increased odds of homelessness.111 Independence can be something young people seek or something that is thrust upon them, but in either case the result can be homelessness. In Miller et al.’s study, many youth identified this as a critical factor that led to their homelessness: “[B]ecause of conflict at home, they had become very independent – out of necessity rather than desire.”112 Whitbeck and Hoyt’s analysis confirms this fact, noting “precocious indepen- dence and early dependence on themselves rather than caretaker adults often occurred prior to youth running away.”113 For reasons that down the road may seem less credible,

103 Rojas, M. (2005, December 11). Green Chimneys in NYC helping lesbian, gay, bisexual, and transgender youths. The Journal News. 104 Sanchez, R. (2004, December 20). 105 Thompson, S. J. et. al. (2001). 106 Wilder Research. (2005). p.7. 107 Hyde, J. (2005). p.175. 108 Ibid. p.175. 109 Cited in Robertson, M. J. & Toro, P. A. (1998). 110 Miller, P. et. al. (2004). p.740. 111 Hagan, J. & McCarthy, B. (1992). 112 Miller, P. et. al. (2004). p.741. 113 Whitbeck, L. B. & Hoyt, D. R. (1999). p.86. 114 Cited in Hyde, J. (2005). p.175. LGBT Youth 20 Homelessness many saw a romantic side to the idea of running away. Twenty two percent of Hyde’s respondents cited a desire to travel and experience new opportunities as a reason for leaving.114 “[P]sychologically harmed children run Once away from the strictures and stresses of home life, the young away from home and the and newly homeless gravitate to areas where they can socialize process of running away with similarly affected youth. In these spaces, their freedom and further harms them... individuality are reinforced, but so are the negatives in their lives: Negative developmental “[P]sychologically harmed children run away from home and the process of running away further harms them… Negative devel- trajectories gain opmental trajectories gain momentum across time.”115 Robert momentum across time.” et al. note in their study of youth at risk of homelessness that youth who end up on the street have often been rejected twice. Initially, their family kicks them out or lets them leave. Subsequently, an institutional care system sees behavioral problems that arose at home as in need of reform and discipline rather than treatment.116 When this happens, the option of remaining on the streets may become more appealing, or at least not as immediately frightening. Particularly for LGBT youth, religious beliefs at home can be a motivator for leaving if parents or other family members are unable or unwilling to accept their child’s sexual orientation or gender identity because of their faith. In the case of Triniti, a 21-year-old bisexual, “Religion got in the way. My Mother grew up in a church. She didn’t understand what ‘gay’ meant.”117 And in Hyde’s study of 50 homeless youth in Los Angeles, 8 percent of youth cited religious 118 “My auntie caught me beliefs as influential in their ending up homeless. and my ex-girlfriend... Much of the conversation about determinants of homelessness we were just in bed revolves around young people as victims, as recipients of unfair together, and she told treatment and/or neglect as children. Justeen Hyde, however, argues the whole church. She that it is important to consider the possibility that young people are told the whole church!” actually expressing personal agency when they leave home. Linked –– Homeless 19-year- to the notion of LGBT youth’s resiliency, which we address later old lesbian from Ann in this report, Hyde argues that some youth are taking control of Arbor, Michigan a bad situation when they leave and that this is a good thing. For example, Twig, a 21-year-old who had been on and off the streets for six years, noted of his mother’s husband, “[H]e gave my mom an ultimatum—either he leaves or I leave. I couldn’t deal with it anymore, and I didn’t want my mom to have to decide. I just packed my shit up and left.”119 Twig felt he had more chance of surviving on his own than did his mother.

115 Whitbeck, L. B. & Hoyt, D. R. (1999). p.150. 116 Robert, M., Pauze, R. & Fournier, L. (2005). Factors associated with homelessness of adolescents under supervision of the youth protection system. Journal of Adolescence, 28(2). p.228. 117 Rojas, M. (2005, December 11). 118 Hyde, J. (2005). p.175. 119 Ibid. (2005). p.177. How many, and why? 21 WHY DO YOUTH REMAIN HOMELESS? There are a number of critical reasons why youth remain homeless, sometimes long after they leave or are kicked out of their homes. Many are unrelated to sexual orientation or gender identity but instead reflect economic and social realities facing the indigent today. Milburn et al. studied newly homeless youth in Melbourne, Australia and Los Angeles over a 12-month period. Because existing research demonstrates that “the context in which a leaving home episode occurs is a significant determinant of its outcome,”120 they sought to test what might predict stronger family bonds 12 months after becoming home- less. While they expected that geographic context and socio-demographic characteristics might be significant, they found that family bonds “are associated with factors related to social and behavioral problems.”121 Specifically, problem behaviors such as alcohol or drug use, risky sexual behavior or involvement with the criminal justice system were the most frequent predictive factors. The greater the level of such behavior at the point of homelessness and the greater the increase in such behavior over the course of the following 12 months, the less likely strong familial bonds that might draw a young person home would endure. Social welfare professionals might usefully develop “family-focused interventions that assist parents and siblings to provide supportive family interactions as an important early intervention strategy for newly homeless young people.”122 In a San Francisco study of homeless and severely poor LGBT youth, four reasons were cited for their predicament: 1. Affordable housing is scarce if not completely impossible to obtain, and in many urban areas where gentrification is ongoing and rental costs are rising, this is a situa- tion unlikely to change anytime soon. 2. An incomplete education makes it difficult for youth to secure work that pays a livable wage. 3. Jobs that are accessible despite youths’ lack of complete education are few and far between. 4. Drug abuse was cited as a key reason for remaining severely poor or homeless.123 These four issues are inextricably linked, a point clarified by the San Francisco Lesbian Gay Bisexual Transgender Community Center’s director of community programs: What we’re seeing is that many LGBT youth, who generally come here from across the country because they’re fleeing discrimination in their schools and communities, are finding that once they get here the housing is too expensive, so they fall into poverty and homelessness…. And without safe, supportive and affordable housing, the youth aren’t able to access jobs, continue their education, deal with mental health issues. They are stuck.124

120 Milburn, N. G., Rotheram-Borus, M. J., Batterman, P., Brumback, B., Rosenthal, D. & Mallet, S. (2005). Predictors of close family relationships over one year among homeless young people. Journal of Adolescence, 28. p.275. 121 Ibid. p.272. 122 Ibid. p.273. 123 Fagan, K. (2006, January 9). Survey: Housing, education, jobs, drugs challenge poor gay youths. San Francisco Chronicle. p.B3. 124 Ibid. 125 Miller, P. et. al. (2004). p.741. LGBT Youth 22 Homelessness Youth explain that independence is hard to give up, even if the idea of a stable and safe home life is appealing: “I’ve been out of my parents’ house since I was 14… just problems at home… I held a place for three years paying rent… I don’t like to use a lot of support. I like to do it myself.”125 This young person’s opinion is widely shared. In a study of homeless children and youth in Minnesota, 51 percent cited their newfound freedom as one of the reasons for remaining away from home.126 When youth finally achieve a sense of belonging and community, regardless of the specific risks of the situation, it is not surprising that they are averse to going back to 127 a space they recall largely, if not entirely, negatively. Distrust of Independence can be authority, not believing that success is possible in a system that they hard to give up: “I’ve see as broken, and a sense of adventure were also cited as important been out of my parents’ considerations for staying on the streets. “The street was fun and house since I was adventurous, especially in the summer… it was a party, running around selling weed so you can get money.”128 14... just problems at home... I held a place The same study confirmed a number of other reasons that mirror for three years paying those already identified as contributors to youth becoming homeless rent... I don’t like to in the first place: use a lot of support. I • Conflict at home (63 percent) like to do it myself.” • A family that will not tolerate their presence in the home for a variety of reasons (39 percent) • Parental substance abuse (24 percent) • Criminal activity (19 percent) • The risk of emotional abuse (22 percent) • The fact that their sexual orientation specifically is unacceptable to their parent or guardian (7 percent)129 There are of course differences that might help to explain why some youth decide to return home while others do not. Thompson et al.’s analysis of almost 18,000 Runaway and Homeless Youth Management Information Systems (RHYMIS) case files shows that child welfare professionals should ensure that intervention efforts aimed at reunifying youth with their families are “based on adequate assessments so that they can be tailored to the specific needs of these groups of youth.”130 Runaway youth are more likely to go home if they know doing so will not lead to physical or sexual assault and if they can be steered clear of criminal behavior as much as possible. Hyde’s study of youth in Los Angeles confirms this. Her respondents “with histories of severe physical abuse that occurred across different stages of childhood were least likely to express a desire for transitioning off the streets.”131 In the case of throwaway youth, where relations with family are usually in a worse state, work needs to be done not just with the youth but also with the family. Throwaway youth have a

126 Wildergreater Research. propensity (2005). than runaway youth to have been involved in criminal behavior and drug 127 Raleigh-Duroff,use. Unlike C. (2004). the Factors families that influenceof runaway homeless youth, adolescents the familiesto leave or stayof throwawayliving on the street. youth Child need and Adolescent assistance Social Work Journal,with 21learning(6). p.569. how to cope with a returned child, including appropriate parenting skills.132 128 Ibid. p.570. 129 Wilder Research. (2005). 130 Thompson, S. J. et. al. (2001). p.170. 131 Hyde, J. (2005). p.180. 132 Thompson, S. J. et. al. (2001). p.170. How many, and why? 23 The federal response to youth homelessness

In this section of our report, we discuss the process behind policy developments in the United States that have acknowledged and attempted to deal with the problem of homelessness. In order to provide context, this discussion will not focus exclusively on LGBT youth. Early policy discussions underlying the development of homelessness programs rarely even contemplated LGBT people. Where relevant, however, we discuss the impact of policy changes on It was little more than LGBT youth specifically. a quarter century ago The notion of homelessness as a public problem deserving of targeted that the problem of federal policy initiatives does not have a long history. Before the New homelessness in America, Deal era, aid such as there was for the poor and those without shelter and specifically youth and/or income often came from faith-based groups.133 During the homelessness, was 1930s and the Great Depression, while there was some discussion considered no more about the systemic causes of emerging homelessness, it did not lead than a criminal matter. to any organized response or solution at the governmental level. The country was in dire economic straits and policy-makers were unable or unwilling to dedicate time or resources to this newly recognized problem. The focus was on “families with children standing in the soup line and newly caught in the web of abject poverty.”134 Much progress was made helping such families, as well as widows and children, but homelessness was not a targeted priority. By the 1960s and 1970s, the War on Poverty and Lyndon Johnson’s other Great Society initiatives facilitated a national awareness of homelessness in political and public policy arenas, though there was inadequate attention to a growing crisis in low income housing.135 In the late 1970s, citing economic justifications, mental hospitals began discharging large numbers of patients via “deinstitutionalizations.”136 Additionally, there is evidence that during the Reagan administration more stringent welfare eligibility requirements increased the population of homeless youth.137 According to the Urban League Review, some blamed this increase on “closed mental hospitals, alcoholism, drug

133 Boddie, S. C. (2003). Faith-based organizations and the distribution of social responsibility: A look at black congregations. Retrieved September 12, 2006, from http://www.religionandsocialpolicy.org/docs/events/2003_spring_research_conference/boddie.pdf 134 NASW Delegate Assembly (1996). Homelessness. Washington, DC: National Association of Social Workers. p.184. 135 NASW Delegate Assembly (1996). p.185. 136 Jencks, C. (1994). The homeless. Cambridge, MA: Harvard University Press. 137 Crowley, J. E. (2003). The gentrification of child support enforcement services, 1950-1984. The Social Science Review, 77(4). LGBT Youth 24 Homelessness addiction and laziness” as well as the Reagan administration’s “scathing attacks on social welfare programs.”138 Research supports a link between lack of access to institutional mental healthcare and youth homelessness. For example, when in the 1990s Laura Embry et al. followed 83 youth after their discharges from institutions, one-third of the adolescents “experienced at least one homeless episode after discharge.”139 It was little more than a quarter century ago that the problem of homelessness in America, especially youth homelessness, was considered no more than a criminal matter. After all, the argument went, if young people were irresponsible and disrespectful enough to run away, then that was surely a sign of a troublemaker who was likely to only cause more trouble down the road.

THE RUNAWAY AND HOMELESS YOUTH ACT

A BRIEF LEGISLATIVE HISTORY National attention was not drawn to the increasing problem of runaway and homeless youth until the 1970s, and by 1976 an estimated two million young Americans had run away, double the number reported five years earlier.140 Additionally, people began to realize that in many instances the youth running away in the 1970s were very different from their contemporaries who fled home in the 1960s—at least, they were different from the images portrayed by the media during that socially and politically volatile decade. The entire nation saw a president assassinated and a faraway war run out of control, while hundreds of thousands protested that war and the dire social conditions at home. “The ‘flower children’ of the mid-1960s… often deserted their homes for a subculture ‘Utopia’ in a spirit of rebellion” was how one media outlet described the 1960s runaways.141 In contrast, among the youth who ran away from home during the 1970s, an estimated 40 to 60 percent were reported to have left home because of some form of abuse, “to escape a growing epidemic of once unspeakable crimes—incest and child abuse.”142 In all likelihood, of course, many of the 1960s runaways were also escaping physical, emotional or sexual abuse or trying to find an environment they felt was safer in some other way then their home. The countercultural attitudes of that decade perhaps encouraged them to search for a better place to live. However, the media’s capacity to shape perceptions of a policy issue is made starkly clear by the presumption of youthful rebellion motivating earlier waves of homelessness. The far less idealistic picture acknowledged in the 1970s made it signifi- cantly harder for policy-makers to continue to ignore a very real and growing problem. To address this growing concern, the United States Senate Committee on the Judiciary’s Subcommittee to Investigate Juvenile Delinquency held two days of hearings in the spring of 1972.143 The name of the committee hardly suggested that there was a sympathetic body

138 Davey, J. (1993). Homelessness in the United States: The Reagan legacy. Urban League Review, 16(1). 139 Embry, L. V. S. A. et. al. (2002). Risk factors for homelessness in adolescents released from psychiatric residential treatment. Journal of the American Association of Child and Adolescent Psychiatry, 39(10). 140 U.S.News & World Report. (1977, January 17). Why children are running away in record numbers. p.62. 141 Ibid. 142 Ibid. 143 Subcommittee to Investigate Juvenile Delinquency. (1972, January 13). Runaway youth. Committee on the Judiciary. Legislative Hearings on S.2829. Washington, DC: Government Printing Office. 25 of legislators waiting to address the crisis facing some of the country’s neediest young people. However, respected Senator and subcommittee Chairman Birch Bayh (D-IN) noted, in addressing the changing nature of youth who ran away: [T]oday… running away is less likely to be a healthy striving for adulthood than an anguished cry for help from a child who has nowhere to turn… [who is] escaping from the reality of serious problems at home, at school, or within themselves.144 Senator Bayh went on to say that not only had the number of runaway youth dramati- cally increased, but there had been “an alarming increase in the number of very young runaways.”145 In New York City, for example, 43 percent of the runaways in 1972 were between the ages of 11 and 14.146 Prior to 1974, youth who ran away from home were considered criminals. If found by police they were forcibly returned to their homes without any attempt to deal with the problem that caused them to run away. The problem was viewed only as “a form of delinquency characterized by disobedience and ‘acting out.’”147 Today this indifference to home, school or risk of abuse strikes us as shocking, but young people were then far less likely to be seen as having individual rights and far more likely to simply be considered troublemakers ignoring their parents. Many youth, with no option but to live on the streets, were forced to resort Committing a criminal to a life of crime. It was not until they were arrested and sent to act that would justify either juvenile detention centers or institutions for the mentally ill detention might be the and insane that many youth were offered any form of counseling only way for runaway to address underlying problems. In other words, committing some youth to put a potentially sort of criminal activity that would justify detention in one kind safe roof over their head of facility or another might be the only way for runaway youth to and access any kinds of put a potentially safe roof over their head and access any kind of professional support. professional support. The standard of counseling that was provided was less than ideal. In 1972, the committee called as its first witness a senior employee for a District of Columbia nonprofit that worked with youth in the city. William Treanor, Director of Special Approaches in Juvenile Assistance, Inc., noted that …the critical problem for young people is that if they want to find a living situation that will help them meet their needs, there is nothing for them, and what the Government provides for them is incarceration and institutionalization.148 So support was lacking for all kinds of reasons, and in the meantime the youth might be housed in a less than healthy environment with the potential to encourage further anti-social behavior. There were very few private agencies that provided support for runaways at the time. Of those that did, many often lacked the necessary funds to do a comprehensive job, and according to one agency representative, they had to “overcome community and police suspicion and hostility.”149 In order for shelters to house runaway youth, they had to

144 Ibid. p.5. 145 Ibid. p.6. 146 Ibid. p.6. 147 Hyde, J. (2005). p.172. 148 Subcommittee to Investigate Juvenile Delinquency. (1972, January 13). p.15. 149 Ibid. p.5. LGBT Youth 26 Homelessness obtain parental permission, which often caused conflicts. With a child viewed as unable to articulate his or her own needs or concerns about the living environment from which they were escaping, this was an easy time for predators, sexual and otherwise, to retain control of their victims. During the Senate hearings, the reality of such a conflict of interest was amply illustrated. One witness was asked what would happen to a child found living on the streets who had run away because she was tired of being sexually molested by her stepfather. According to the witness, in the eyes of California law, …the child is a runaway and beyond parental control. She is subject to arrest and is ineligible for any services other than after the arrest and detention in Juvenile hall. Time of detention for kids like that is frequently six months.150 Under the leadership of Sen. Bayh, the subcommittee held its hearings as a way to begin addressing the root of the problem rather than merely the consequences: We are concerned with juvenile crime, and juvenile drug abuse, and we have devel- oped rehabilitation programs to help juveniles after they are in trouble. But what we have too often failed to realize is the need for prevention. We have developed very few programs to help our young people before they become serious lawbreakers. The runaway is a strong potential candidate for juvenile delinquency and a life of adult crime. If we can help the runaway deal with the problems that caused him to run, we can prevent many runaways from becoming truly delinquent.151 Clearly a key motivating factor for action was a reduction in juvenile delinquency. Senator Bayh’s acknowledgement of the root causes of the epidemic of youth homeless- ness enabled others to join him in proposing systemic changes that might have a real impact on the long term problem. While the notion of any federal response was novel, critics remind us that real understanding of the issue was still some way off. The policy solutions considered by Congress rested on four assumptions: • Runaway children would end up on the streets and without resources. • Removal from the streets would save them. • Temporary shelter was all that was required to “tide them over.” • Law enforcement and juvenile justice should not be involved in the processes developed.152 In short, “the interpretation of runaway behavior… was based primarily on a single linear episode in which the youth voluntarily leaves home, finds resources while in need, and is directed back home.”153 If only the problem had been or would remain that simple.

CONGRESS ACTS As a result of the 1972 hearings, Congress passed and President Gerald Ford signed into law the Runaway Youth Act (RYA) as part of the 1974 Juvenile Justice and Delinquency

150 Ibid. p.35. 151 Ibid. p.6. 152 Staller, K. M. (2004). Runaway youth system dynamics: A theoretical framework for analyzing runaway and homeless youth policy. Families in Society, 85(3). p.381. 153 Ibid. The federal response 27 Prevention Act. This new legislation decriminalized runaways by requiring states to separate services to runaway youth from the law enforcement, mental health, child welfare and juvenile justice systems.154 Second, it required that states that received federal funding provide runaway youth with shelter, food, counseling and other necessities. With these mandates for improved services came new federal dollars, initially provided under the Basic Center Program. Federal funding increased drastically after passage of this landmark legislation, from $2.3 million in 1973 to $7 million in 1976.155 In 1977, the Runaway Youth Act was expanded and renamed the Runaway and Homeless Youth Act (RHYA). Subsequent revisions of the law led to the expansion of services and the creation of two critical new programs, the Transitional Living Program in 1988 for older homeless youth and the Street Outreach Program in 1994 to help and protect homeless youth on the streets. These three programs remain the central components of legislation addressing youth homelessness in America today. In 2003, Congress passed the Runaway, Homeless and Missing Children Protection Act (RHMCPA), which reauthorized and amended RHYA and the Missing Children’s Assistance Act through the fiscal year 2008. This latest reauthorization combines the funds for the Basic Center Program and the Transitional Living Program. We turn now to a brief consideration of what exactly these key programs are intended to achieve, and how.

FEDERAL PROGRAMS FOR HOMELESS YOUTH

BASIC CENTER PROGRAM The Basic Center Program funds are provided “to establish or strengthen community- based programs that address the immediate needs of runaway and homeless youth and their families.”156 Funds are administered through the U.S. Department of Health and Human Services’ Family and Youth Services Bureau (FYSB). Drop-in centers that provide some immediate aid as well as referrals to other community resources are critical because many homeless youth are difficult to reach on the street, and if they are going to voluntarily seek help it needs to be in a comfortable space designed specifically to address their concerns and needs. The Ruth Ellis Center in Detroit, Mich., is one such program, and later in this report the organization’s executive director profiles efforts to serve LGBT youth of color. All basic centers are required to offer the following types of assistance: • Emergency shelter, either directly or by arrangement with another service provider • Food, clothing, medical care, or other services that youth need • Individual, group and family counseling • Recreation programs • Outreach targeting both youth who may need assistance and other public or private agencies that work with youth and families

154 U.S. Department of Health and Human Services: Family and Youth Services Bureau. (2006). Fact sheet: Basic center program. Author. Retrieved September 10, 2006, from http://www.acf.hhs.gov/programs/fysb/content/youthdivision/programs/bcpfactsheet.htm 155 U.S.News & World Report. (1977, January 17). p.62. 156 U.S. Department of Health and Human Services: Family and Youth Services Bureau. (2006). LGBT Youth 28 Homelessness • Aftercare services for youth after they leave the shelter While some youth might find their own way to a drop-in center designed to help them get off the streets, not all will do so. As a result, professionals seeking to help homeless youth need to get out on the streets and find their future clients. This is the task of street outreach staff.

STREET OUTREACH PROGRAM The Street Outreach Program (SOP) was created to prevent the sexual abuse or exploita- tion of young people who are living on the streets. It was first created through the Violence against Women Act of the Violent Crime Control and Law Enforcement Act of 1994 and has been reauthorized under the Runaway, Homeless, and Missing Children Protection Act of 2003. Under the SOP, the Family and Youth Services Bureau awards grants to private nonprofit agencies to conduct outreach designed to build relationships between grantee staff and street youth with a goal of helping these kids leave the streets.157 Services that are often offered include: • Street-based education and outreach • Access to emergency shelter • Survival aid • Individual assessments • Treatment and counseling • Prevention and education activities • Information and referrals • Crisis intervention • Follow-up support Much of this assistance is provided on the streets by trained staff, but youth are also encouraged to visit a drop-in center in the hopes of beginning the transition from street permanence to shelter. In New York City, the Ali Forney Center (AFC) operates a drop-in center and SOP specifically targeting the LGBT homeless youth population. Their intent is multifold. Initially, the aim is to have youth meet an outreach worker, visit the drop-in center and meet with a social worker. Perhaps the youth will then take a space in a short- term emergency shelter operated by the agency and later, if ready and able, move into a transitional living program still run by AFC. The benefits of working with youth in this continuous way are obvious: stability, predictability and consistency of policies, people and priorities. Of course, not all youth can or want to benefit from this continuum of care, but a great deal of help can be administered right where young homeless people are hanging out on the streets. Mobile health screening and treatment vans, on-the-go dentists and basic mental health consultation services can all be brought to youth in need. The U.S. Department of Health and Human Services encourages all RHYA funding

157 Ibid. The federal response 29 applicants to develop their project descriptions and curricula utilizing the Positive Youth Development (PYD) framework.158,159 Faith-based and community organizations are also encouraged to apply for all types of RHYA funding.160 Despite the enormous need for this type of work, the Street Outreach Program provides a total of only $15 million per year in funding, with the maximum amount for each grant set at $200,000.161

TRANSITIONAL LIVING PROGRAM When youth are found on the street, the ideal situation might well be to see them at a drop-in center, perhaps provide short term emergency shelter, then see them return home. Whether this home is with natural, adoptive or foster parents or another relative or adult with whom the youth has a healthy and safe established relationship, reunification is the optimal outcome. Unfortunately, in too many instances, such an environment does not exist. Many runaway or homeless youth cannot return to their families, oftentimes due to abusive situations, abandonment or severe family conflict. To address this reality, Congress sought to offer the kind of longer-term supportive assistance that emergency shelter programs were not designed to provide. The Transitional Living Program for Older Homeless Youth (TLP) was created in a 1988 amendment to the Runaway and Homeless Youth Act. The program provides longer term residential services to homeless youth ages 16-21 for up to 18 months and services to provide youth with the skills necessary to live independently.162 Living accommodations may be with host families, in group homes, maternity group homes, or supervised apart- ments. Transitional Living Program grantees must provide the following services directly or by referral: • Safe, stable living conditions • Basic life-skill building • Interpersonal skill building • Educational opportunities • Assistance in job preparation and attainment • Substance abuse education, information and counseling • Mental health care • Physical health care Transitional Living Program grants are available to public and private nonprofit agencies, Indian tribes and faith-based organizations, and each organization is able to apply for a maximum grant of $200,000.163

158 U.S. Department of Health & Human Services, Administration for Children and Families. (2006). Street Outreach Program. Author. Retrieved July 5, 2006, from http://www.acf.hhs.gov/grants/open/HHS-2006-ACF-ACYF-YO-0105.html. p.2. 159 More information about Positive Youth Development models follows later in this publication, including in contributions from our partnering agencies. 160 U.S. Department of Health & Human Services, Administration for Children and Families. (2006). p.7. 161 Ibid. p.6. 162 Cooper, E. F. (2006). The runaway and homeless youth program: Administration, funding, and legislative actions. CRS Report for Congress. Retrieved July 5, 2006, from http://opencrs.cdt.org/rpts/RL31933_20060323.pdf. p.5. 163 Cooper, E. F. (2006). p.6. LGBT Youth 30 Homelessness The Green Chimneys program in New York City operates a scattered-site apartment-based TLP known as the Triangle Tribe Apartments exclusively for youth who identify as LGBT. Theresa Nolan, their Division Director of New York City programs, has contributed a section to this report regarding the practicalities of operating such a program.

NATIONAL RUNAWAY SWITCHBOARD A critical addition to these federally funded programs, created to provide advice and support to all people impacted by youth homelessness, is the National Runaway Switchboard (NRS).164 NRS is a free hotline (1-800-RUNAWAY, open 24 hours a day and seven days a week) for homeless and runaway youth and their families, enabling them to seek assistance from trained volunteers and staff.165 The NRS has also produced a pamphlet for public distribution that specifically addresses LGBT youth in crisis.166 NRS offers: • Crisis intervention • Information referrals, for both parents and runaway young people, to appropriate resources in their locale • Message relay service so youth can contact their parents. • Three-way calling so youth can speak to parents while NRS counselors remain on the line • Free tickets home courtesy of a collaboration with Greyhound Bus Lines167 Despite their disproportionate numbers, the NRS Web site makes no reference whatsoever to LGBT youth. The only link related to sexuality takes the viewer to a non-governmental site.

FEDERAL FUNDING UNDER THE RUNAWAY AND HOMELESS YOUTH ACT In 2004 alone, due to a lack of funding, more than 2,500 youth were denied access to a TLP program for which they were otherwise qualified.168 In addition, 4,200 youth were turned away from Basic In real, inflation-adjusted Center Programs, which provide family reunification services and dollars, there have been emergency shelter. The most basic needs of vulnerable youth are not cuts in money available being met because of a lack of funding. Given the relative political to provide the most basic impotence of people experiencing homelessness, they must hope services to society’s most that advocacy groups fighting on their behalf will be able to push for vulnerable young people. changes in funding priorities. Table 1 demonstrates how despite a dramatic increase in demand for services, RHYA funding has remained relatively constant over the past few years. In real, inflation-adjusted dollars, this means that there have been cuts in money available to provide the most basic services to society’s most vulnerable young people.169

164 For more information, see http://www.nrscrisisline.org/ 165 Cooper, E. F. (2006). p.8. 166 National Runaway Switchboard. (2005). 167 For more information, see www.greyhound.com 168 Data compiled from the federally administered Runaway and Homeless Youth Management Information System (RHYMIS). 169 Project HOPE: Virginia education for homeless children and youth program. (2006). The federal response 31 Table 1: Federal RHYA Funding 2001 to 2006 ($ in millions) Program FY01 FY02 FY03 FY04 FY05 FY06 Basic Centers $48.4 $48.3 $49.5 $49.2 $48.8 $48.8 Transitional Living $20.7 $39.7 $40.5 $40.3 $39.9 $39.9 Street Outreach $15.0 $15.0 $15.4 $15.3 $15.2 $15.2 Total $84.1 $103.0 $105.4 $104.8 $103.9 $103.9

Thousands of youth are already being turned away from these essential programs. The U.S. Department of Health and Human Services reported in 2003 that nearly 40 percent of the youth who went to Transitional Living Programs for help were turned away due to lack of resources.170

MCKINNEY-VENTO HOMELESS ASSISTANCE ACT Prior to the early 1980s, most homelessness assistance for adults and families was conducted at the local level. After initial efforts to help youth specifically, one of the first notable federal interven- In 2003, nearly 40 tions came in 1983. A federal task force was created to provide percent of the youth local governments with information on how to obtain surplus who went to Transitional federal property that could be used as homeless shelters. In 1987, Living Programs for help the Stewart B. McKinney Homeless Assistance Act was signed into were turned away due law, renamed in 2000 as the McKinney-Vento Homeless Assistance Act. The act included a provision to establish the Interagency to lack of resources. In Council on the Homeless171 to coordinate efforts by various addition, 4,200 youth agencies addressing the issue of homelessness. While runaway and were turned away from throwaway youth are provided for specifically in the Runaway and Basic Center Programs. Homeless Youth Act, the McKinney-Vento Homeless Assistance Act also benefits runaway youth and the shelters that provide for them. Among the programs that help this population are the following:

Homeless Assistance Grants, U.S. Department of Housing and Urban Development (HUD) The U.S. Department of Housing and Urban Development’s (HUD) mission is to “…increase homeownership, support community development and increase access to affordable housing free from discrimination.”172 Specifically, when it comes to people experiencing homelessness, they have a range of programs that “are managed by local organizations that provide a range of services, including shelter, food, counseling, and jobs skills programs.”173 There are a number of ways in which youth-serving agencies can access HUD funds. The following brief summary provides an idea of the scale of these programs and the definite recent shift towards encouraging faith-based agencies to apply. We consider the impact of this trend later in this publication.

170 Project HOPE: Virginia education for homeless children and youth program. (2006). 171 For more information, see www.ich.gov 172 U.S. Department of Housing and Urban Development. (2003, October 3). HUD’s mission. Author. Retrieved October 31, 2006, from http://www.hud.gov/library/bookshelf12/hudmission.cfm 173 U.S. Department of Housing and Urban Development. (2006, October 13). Homeless. Author. Retrieved October 31, 2006, from http://www.hud.gov/homeless/index.cfm LGBT Youth 32 Homelessness Continuum of Care grants provide permanent and transitional housing to homeless persons. In addition, these grants fund services such as job training, health care, mental health counseling, substance abuse treatment and child care. Youth shelters are eligible. In 2003, Continuum of Care grants totaled $1.1 billion.174 Emergency Shelter Grants convert buildings into homeless shelters, assist in the operation of local shelters, and fund related social service and homeless prevention programs. Youth shelters are eligible. In 2003, Emergency Shelter Grants totaled $159 million.175 The federal budget for fiscal 2007 proposes a $184 million increase for HUD’s Homeless Assistance Grants to a total of $1.5 billion.176 From 2002 to 2004, HUD increased the number of grants to faith-based organizations from 650 to 835, a 28 percent increase.177 A 2003 press release highlighted HUD’s awards of $168 million to faith-based organizations.178

Emergency Food and Shelter (EFS) Program, U.S. Department of Homeland Security The EFS Program is administered by the Federal Emergency Management Agency (FEMA). In fiscal years 2005 through 2007, FEMA allocated $153 million each year for the EFS Program, which supports social service agencies in 2,500 jurisdictions in the U.S. “The EFS funds are used to supplement food, shelter, rent, mortgage, and utility assistance programs for people with non-disaster-related emergencies.”179 Individual grants range from $2,000 to $5,864,000.180 The national board of the EFS program includes the American Red Cross,181 Catholic Charities USA,182 United Jewish Communities,183 the National Council of the Churches of Christ in the USA,184 the Salvation Army185 and United Way of America.186,187

Health Care for the Homeless (HCH) Program, U.S. Department of Health and Human Services HCH programs provide for primary health care and substance abuse services at locations accessible to people who are home- In 2004 15 percent of HCH- less, emergency care with referrals to hospitals for in-patient care funded clients were children services and/or other needed services, and outreach to difficult- and youth up to age 19. to-reach homeless persons in accessing care and establishing

174 U.S. Department of Housing and Urban Development. (2003, December 19). CPD: 2003 Competitive and FY 2004 formula grant awards. Author. Retrieved July 5, 2006, from http://www.hud.gov/offices/cpd/homeless/budget/2003/index.cfm 175 U.S. Department of Housing and Urban Development. (2003, December 19). 176 United States Office of Management and Budget. (2006). Budget of the United States Government, FY 2007, Department of Housing and Urban Development. Author. Retrieved July 7, 2006, from http://www.whitehouse.gov/omb/budget/fy2007/hud.html, p.12. 177 United States Office of Management and Budget. (2006). p.11. 178 Sullivan, B. (2003, December 19). Bush administration announces record $1.27 billion to help hundreds of thousands of home- less individuals and families: HUD grants part of strategy to end chronic homelessness. U.S. Department of Housing and Urban Development. Retrieved July 7, 2006, from http://www.hud.gov/news/release.cfm?content=pr03-143.cfm 179 Federal Emergency Management Agency (FEMA). (2004, December 20). FEMA announces $153 million in homeless aid awards for 2005. Author. Retrieved July 7, 2006, from http://www.fema.gov/news/newsrelease.fema?id=15785. p.1. 180 The Catalog of Federal Domestic Assistance. (2006). Emergency food and shelter national board program. Author. Retrieved July 7, 2006, from http://12.46.245.173/pls/portal30/CATALOG.PROGRAM_TEXT_RPT.SHOW?p_arg_names=prog_nbr&p_arg_ values=97.024. p.4. 181 For more information, see www.redcross.org 182 For more information, see www.catholiccharitiesusa.org 183 For more information, see www.ujc.org 184 For more information, see www.ncccusa.org 185 For more information, see www.salvationarmyusa.org 186 For more information, see www.unitedway.org 187 Federal Emergency Management Agency (FEMA). (2004, December 20). p.1. The federal response 33 eligibility for entitlement programs and housing.188 Federal assistance for HCH programs has steadily increased from $35.7 million in 1990 to $155 million in 2006.189 In 2004, 15 percent of HCH-funded clients were children and youth up to age 19.190 The funds allocated enable 182 projects in all 50 states, the District of Columbia and Puerto Rico to help approximately 600,000 people. This is still far short of the number of people, including many youth, who are in need of the services.

The Education for Homeless Children and Youth program, U.S. Department of Education The McKinney-Vento Homeless Education Act provides federally guaranteed education to runaway and homeless youth.191 The Act “removes barriers to school enrollment for unaccompanied youth [by] waiving documentation requirements (i.e. proof of immuniza- tion) or adopting more lenient attendance policies” and “requires that states address enrollment delays for youth without guardians and take steps to enroll such youth in school immediately.”192 This legislation intends that every homeless youth receive an education and be immedi- ately accommodated by the school system in every state. Homeless youth have a federally guaranteed protection within the education system of the United States. Under this program, state educational agencies (SEAs) must ensure that each home- less child and youth has equal access to the same free, appropriate public education, including a public preschool education, as other children and youth. In addition, homeless students may not be separated from the mainstream school environment.193 Districts must be proactive in enforcing these requirements, though In the most recent avoidance is possible. The system depends on state and city agencies year for which data are promptly appointing qualified individuals to serve as case managers available (FY 2000)... and advocates for homeless youth and holds school administrators only 28 percent of accountable for ensuring the safety and public education of quali- identified qualifying fying youth. A liaison must be identified who will proactively identify children and youth homeless children and youth. As with so many other well-intentioned received services. programs, however, in the most recent year for which data are avail- able (FY 2000), states could help only 11 percent of school districts nationwide. This meant that only 28 percent of identified qualifying children and youth received services. And funding remains flat; $63 million in 2005 and 2006, and the Bush administration requested the same amount in its 2007 budget.194,195

189 U.S. Department of Health and Human Services. (2006). Health care for the homeless, About HCH. Author. Retrieved July 7, 2006, from http://bphc.hrsa.gov/hchirc/about/default.htm 190 Ibid. 191 U.S. Department of Health and Human Services, Administration for Children and Families, Family and Youth Services Bureau. (2006, January 9). Family and Youth Services Bureau information memorandum. Author. Retrieved July 6, 2006, from http://www. acf.hhs.gov/programs/fysb/content/aboutfysb/McKinney-Vento_IM.pdf 192 Ibid. p.1. 193 United States Department of Education. (2004, July). Education for Homeless Children and Youth Program. Author. Retrieved July 7, 2006, from http://www.ed.gov/programs/homeless/guidance.pdf. p.2. 194 United States Department of Education. (2004, July). 195 Lawsuits are an unfortunate but sometimes necessary step in ensuring full compliance with these rules. One such example is the federal class-action suit filed against several Suffolk County, MA school districts charging failure to comply with the McKinney-Vento Act in providing education to homeless youth. See: Cummings, J. (2004). Three local school districts named in class action homeless student lawsuit. The Beacon. Retrieved July 5, 2006, from http://www.babylonbeacon.com/news/2004/0319/Front_page/003.html). The lawsuit claims the state, the social services department and the districts have systematically failed “to accept and educate homeless children ‘simply because they are homeless.’” LGBT Youth 34 Homelessness THE IMPACT OF FEDERAL IMMIGRATION POLICY ON LGBT HOMELESS YOUTH Immigration policy in the United States is based on the notion of family reunification. Because of this, it discriminates against all LGBT people whose relationships the federal government does not recognize. Runaway or throwaway LGBT youth who are non-citizen or alien residents may face problems qualifying to stay in the United States after many years if a family member who is qualified to sponsor them refuses to do so due to objec- tions to their declared sexual orientation or gender identity. Many may face dangerous or even lethal consequences if they are forced to return to a nation that might no more than nominally be considered home. Many non-citizen youth run away from home outside the United States and manage to find their way here, gravitating in many cases to cities where they feel they might fit in better than in their country of origin. Once on the street, these youth may lack proper proof of identity or immigrant status, which can cause problems gaining access to services, education and shelters. Many more may not even realize that they are here illegally until they are asked to provide documentation of some sort for a job, student loan or other services. Identifying a qualified local attorney or immigrant support organization sympathetic to the cause of these youth is the first step for any young person or agency facing such a dilemma. The New York City-based Urban League’s Peter Cicchino Youth Project deals with “a handful” of these cases every year.196 Such organizations are likely to best understand the three ways in which non-citizen homeless youth might qualify to remain in the United States in a self-petitioned visa category.197 1. The Violence against Women Act allows LGBT young people who meet the defini- tion of “battered children” to self-petition for permanent residency. Evidence of emotional, physical or sexual abuse, or the legitimate threat thereof, prior to leaving the home is critical to this particular classification. 2. Special Immigrant Juvenile Status (SIJS) is available to abused or neglected or abandoned youth subsequently found eligible for foster care by a juvenile court. This route includes youth placed in care by child protective services and also those staying with friends or an alternative family member. If the temporary caregiver is willing to petition for guardianship, juvenile court becomes involved, making the individual eligible “through the back door.” 3. The third option is to seek asylum based on sexual orientation or gender identity. This is not as easy to secure because there are strict timelines on filing and youth often lack the evidence or experience of assault in their home country to justify their argument that they personally face serious risks if forced to leave the United States.198

196 Personal telephone communication with the author. August 29, 2006. 197 Hazeldean, S. & Singla, P. (2004). Out in the cold: The challenges of representing immigrant lesbian, gay, bisexual, and transgender youth. An Urban Justice Center Report. Retrieved August 31, 2006, from http://www.urbanjustice.org/pdf/publications/lesbianandgay/ OutintheCold.pdf 198 For more information on providing services to non-citizen youth, contact Immigration Equality at www.immigrationequality.org. The federal response 35 ORGANIZATIONAL ADVOCACY FOR PEOPLE EXPERIENCING HOMELESSNESS There are a number of secular national organizations that do not provide direct services to the homeless but do advocate on their behalf and/or bring together agencies and other organizations that do provide direct services. • The National Coalition for the Homeless (NCH), which includes members who have experienced homelessness, “engages in public education, policy advocacy, and grassroots organizing,” focusing its work around “housing justice, economic justice, health care justice, and civil rights.”199 • The National Alliance to End Homelessness (NAEH) is a nonprofit organization “whose mission is to mobilize the nonprofit, public, and private sectors of society in an alliance to end homelessness.”200 NAEH targets federal legislators, assists primary service providers and local public officials, and advocates for effective strategies to end homelessness. • The National Low Income Housing Coalition “is dedicated solely to ending America’s affordable housing crisis.” While working to help all Americans who lack adequate housing, they focus their advocacy “on those with the most serious housing problems, the lowest income households.”201 • The National Housing Conference (NHC) “raises awareness of housing affordability issues” and “fights to maintain federal support for affordable housing and community development programs.”202 • United Way of America enables local service providers by partnering with both public and private agencies and offering funding.203 Other groups focus their efforts on particular sub-populations or on single topics that impact the entire homeless population. These include: • National Network for Youth204 • National Youth Advocacy Coalition205 • National Association for the Education of Homeless Children and Youth206 • National Health Care for the Homeless Council207 • National Law Center on Homelessness and Poverty208 • National Policy and Advocacy Council on Homelessness209

199 National Coalition for the Homeless. (2006, June 26). About NCH: Who we are. Author. Retrieved July 7, 2006, from http://www.nationalhomeless.org/ 200 National Alliance to End Homelessness. (2006). About the alliance. Author. Retrieved July 7, 2006, from http://naeh.org/about/index.htm 201 National Low Income Housing Coalition. (2005). About NLIHC. Author. Retrieved October 18, 2006, from http://www.nlihc. org/about/index.htm 202 National Housing Conference (NHC). (2006). Annual report: National Housing Conference report of activities, 2005. Author. Retrieved July 7, 2006, from http://www.nhc.org/housing/about-annual-report 203 United Way of America. (2006). Our work. Author. Retrieved September 10, 2006, from http://national.unitedway.org/ourwork/index.cfm 204 For more information, see www.nn4youth.org 205 For more information, see www.nyacyouth.org 206 For more information, see www.naehcy.org 207 For more information, see www.nhchc.org/council.html 208 For more information, see www.nlchp.org 209 For more information, see www.npach.org LGBT Youth 36 Homelessness • National Student Campaign against Hunger and Homelessness210 • Corporation for Supportive Housing211 National organizations, both secular and faith-based, often provide guidance and financial support for local primary service providers to help people experiencing homelessness, including LGBT homeless youth. When federal funds get disbursed to the state governments, they are then allocated to local public service departments and private nonprofit organizations that each provide shelter, food, and assistance to homeless youth. For example, the New York City Administration for Children’s Services (ACS) places homeless youth in foster homes and funds licensed shelters to house youth. They provide intervention and counseling as necessary to work towards the safety and security of homeless youth in NYC.212 ACS’s partnership with New Yorkers for Children exposes children in foster care to youth development support in an effort to maintain youth in the care of foster homes and off the streets.213 Local nonprofit organizations such as Covenant House New York and The Ali Forney Center work with New York City to provide emergency shelter services for homeless youth.214,215 While faith-based Covenant House has the financial backing of a major national organization, the secular Ali Forney Center unfortunately has much more restric- tive funding sources. It can stay open only through the grants it wins from government departments and the donations of individuals committed to the well-being of the LGBT homeless youth it serves. While programs like the Ail Forney Center, or Sylvia’s Place or Green Chimneys in NYC work exclusively with LGBT youth, there are shelters in the city and around the country who are not receptive to LGBT homeless youth. While it is not always the case that they are faith-based programs, the growth of faith-based social service provision and its potential impact on homeless LGBT youth warrants specific attention.

FAITH-BASED SERVICE PROVIDERS “I recognize that government has no business endorsing religious creed, or directly funding religious worship or religious teaching. That is not the business of the government. Yet government can and should support social services provided by religious people, as long as those services go to anyone in need, regardless of their faith. And when government gives that support, charities and faith-based programs should not be forced to change their character or compromise their mission.” –President George W. Bush216

210 For more information, see www.nscahh.org 211 For more information, see www.csh.org 212 The City of New York. (2006). Child welfare links, NYC Administration for Children’s Services. Author. Retrieved July 12, 2006, from http://www.nyc.gov/html/acs/html/statistics/child_welfare_links.shtml 213 New Yorkers for Children. (2006). Programs supported by NYFC. Author. Retrieved July 12, 2006, from http://www.newyorkersfor- children.org/programs2.html 214 Covenant House New York. (2006). About us: Facts and stats. Author. Retrieved August 31, 2006, from http://www.covenanthouseny. org/about_us_facts_stats.asp 215 The Ali Forney Center. (2004). Housing for homeless LGBT youth. Author. Retrieved July 12, 2006, from http://www.aliforney- center.org/services.html 216 White House Office of Faith-Based and Community Initiatives. (2005). Protecting the civil rights and religious liberty of faith-based organizations: Why religious hiring rights must be preserved. Author. Retrieved July 11, 2006, from http://www.whitehouse.gov/ government/fbci/religious-hiring-booklet-2005.pdf. p.ii. The federal response 37 On December 12, 2002, President George W. Bush issued an executive order permitting federal financial assistance for faith-based social service organizations, simultaneously granting them permission to retain their religiously-based missions. According to the executive order, federal funds are not to be used to support any inherently religious activities, such as worship, religious instruction, or proselytizing. An organization may, however, retain religious terms in its name, select board members on a religious basis, and include religious references in its mission statement and other chartering or governing documents.217 Federal programs such as the Compassion Capital Fund are designed to help faith-based and community groups.218 The White House Office of Faith-Based and Community Initiatives denies that federal monies are set aside for faith-based organizations in an effort to maintain the administration’s commitment to the separation of church and state. However, in the same breath, the administration notes that: …each year hundreds of millions of dollars go to religious charities and grassroots groups to provide vital Federal services for the poor. The government does not ask, “Does your organization believe in God?” It asks, “Does your program work? Does it meet the specific requirements of the grant? Is it turning peoples’ lives around? Is it accountable for the money it receives?219 According to statistics from the White House, $2.15 billion dollars in Fiscal Year 2005 competitive non-formula programs went to faith-based organizations (FBOs). Those funds included 881 Health and Human Services grants to faith-based organizations totaling $780 million, an 82 percent increase from 2002 in the number of grants, and a 58 percent (or $288 million) increase in dollar terms.220 In 2003, at least 30 such grants were for basic center programs, 18 for street outreach work and 25 for transitional living programs.221 Can a faith-based service provider for people experiencing homelessness, whose code of ethics is largely based on an interpretation of scripture and religious ideology, be assumed to treat all those in need equally, including openly LGBT people? While a definitive answer to this question is not possible, we can certainly expect national faith-based organizations to partner with sympathetic local faith-based service providers. This means that when a national or large group allocates funds to localities, they will likely only enable those local programs that have a similar religious foundation and outlook to provide services in their name. Funding for FBOs from executive departments has also grown significantly:222 • The U.S. Department of Housing and Urban Development (HUD) awarded 765 grants to FBOs in fiscal year (FY) 2003, an 11 percent increase over 2002 worth $53 million. Also, more than half of allocated funds for Section 202 Elderly Housing,

217 White House Office of Faith-Based and Community Initiatives. (2006). 218 White House Office of Faith-Based and Community Initiatives. (2006). Helping those in need: An overview of the federal grants process. Author. Retrieved July 5, 2006, from http://www.whitehouse.gov/government/fbci/guidance/helping.htm. p.2. 219 Ibid. p.2. 220 For 2002 data, see White House office of faith-based and community initiatives. (2004, March 2). Select grants to faith-based organizations at five agencies. Author. Retrieved August 31, 2006, from http://www.whitehouse.gov/government/fbci/3-2_final_pres.pdf. For 2005 data, see White House office of faith-based and community initiatives. (2006, March 9). Grants to faith-based organizations: Fiscal year 2005. Author. Retrieved November 7, 2006, from http://www.whitehouse.gov/government/fbci/final_report_2005.pdf. 221 Thememoryhole.org is a web site run by a freelance writer and editor. The web site’s slogan states that they are “Rescuing knowledge, freeing information.” The writer pursues freedom of information cases to open up the work of the federal government and others to scrutiny. In this case, the data cited here can be located at The Memory Hole. (2005, January 6). Faith-based funding recipients, 2003. Author. Retrieved August 31, 2006, from http://www.thememoryhole.org/pol/faith_based_2003.htm 222 White House office of faith-based and community initiatives. (2004, March 2). LGBT Youth 38 Homelessness totaling $316 million, went to FBOs. 223

• The U.S. Department of Education raised the percentage of According to statistics the FBO Supplemental Services providers (organizations that from the White House, provide tutoring under the “No Child Left Behind” initiative) $1.17 billion dollars from 2 percent to 9 percent over the course of FY 2003.224 in Fiscal Year 2003 • Overall, $1.17 billion, or 8.1 percent of Federal competitive competitive non- 225 programs went to FBOs. formula programs While more and more FBOs are receiving federal funds, social service went to faith-based funding levels have not increased overall. Consequently, the impact organizations (FBOs). of FBOs has not been to increase services to people experiencing homelessness, but rather only to change who provides those services. This means potentially more services being provided by anti-LGBT organizations and staff. Given that many adults might feel uncomfortable or even intimidated in an explicitly religious service provider’s facility, imagine how a newly-out LGBT youth is likely to feel. If an organization’s core belief is that homosexuality is wrong, that organization (and its committed leaders and volunteers) may not respect clients’ sexual orientation or gender identity and may expose LGBT individuals to discriminatory treatment. Such treatment might include “conversion therapies” designed to change a client’s sexual orientation or other religiously-grounded counseling, a topic to which we will return shortly.226 We readily acknowledge that many FBOs do remarkable work, providing critical services to the neediest of people, without discriminating against anyone. However, situations can arise that cause grave concern to homeless LGBT youth advocates.

THE POTENTIAL FOR ANTI-LGBT DISCRIMINATION AT FAITH-BASED SERVICE PROVIDERS While it might not seem objectionable for a particular church to provide meals to the hungry, what happens when the church’s beliefs Volunteers who believe conflict dramatically with those that they serve? What happens when in an organization’s the service a church is providing is not a meal, but education on HIV religious mission and are prevention that only mentions abstinence? Or when “counseling” to not trained social work openly LGBT youth is aimed at making them feel guilty or ashamed? professionals may feel There are faith-based organizations who, with the backing of our courts, less inclined to adhere conduct employment discrimination based on sexual orientation. How to professional standards do these same organizations deal with other issues that conflict with of practice and ethics. their religious beliefs? It is not always easy to identify the organization whose work is grounded on religious underpinnings. Ebaugh et al. conducted a study of social service providers and found that self-identified faith-based organizations are far less identifiable by name alone; only half of these organizations mention their religious character explicitly

223 Ibid. p.5. 224 Ibid. 225 Ibid. 226 For more information on “conversion therapy” or ex-gay programs targeted at youth, see Cianciotto, J. & Cahill, S. (2006). Youth in the crosshairs: The third wave of ex-gay activism. National Gay & Lesbian Task Force. Retrieved March 30, 2006, from http://www. thetaskforce.org/downloads/crosshairs.pdf 227 Ebaugh, H. R., Pipes, P. F., Chafetz, J. S. & Daniels, M. (2003). Where’s the religion? Distinguishing faith-based from secular social service agencies. Journal for the Scientific Study of Religion, 42(3). p.415. The federal response 39 in their names.227 Some people are concerned that the lack of explicit religiosity in the titles of many faith-based organizations may be a covert method of attracting clients searching for services in order to expose them to religious proselytizing. Ebaugh et al. also indicated that the ratio of volunteers to paid staff in secular organiza- tions is 3:1, while the same ratio in faith based organizations is as high as 15:1.228 Such a dramatic difference is not particularly surprising given that religiously affiliated programs might well be attached to a congrega- tion full of potential unpaid volunteers. However, this professional If an organization’s versus volunteer discrepancy may create a lack of accountability core belief is that within faith-based organizations that provide services to homeless homosexuality is wrong, populations. Volunteers who believe in an organization’s religious mission and are not trained social work professionals may feel less that organization (and inclined to adhere to professional standards of practice and ethics. its committed leaders Instead, they may be tempted to forcibly expose clients to religious and volunteers) may not ideology because they have no fear of losing their job even if they respect clients’ sexual overstep agency-established boundaries. orientation or gender identity and may expose In the next section of our report we turn to some of the critical chal- lenges homeless youth face, and discuss evidence that shows LGBT LGBT individuals to youth are not just over-represented, but also often experience more discriminatory treatment. trauma, greater risk and less support than other youth. Specifically, we consider a number of issues of importance to LGBT youth in out-of-homecare or on the streets, all of which ought to be familiar to any practitioner seeking to work with this community. Among those we address are substance abuse, mental health crises, risky behavior, criminal victimization and involvement with the criminal justice system. We also discuss some of the specific challenges facing homeless youth who identify as transgender.

228 Ebaugh, H. R. et. al. (2003). p.418. LGBT Youth 40 Homelessness Critical issues affecting LGBT homeless youth

The challenges of dealing with homelessness and integrating an LGBT identity into daily life put tremendous stresses and strains on youth. We begin this section with a discussion of the mental health issues facing this population. We then turn to the related problem of substance abuse. Whether taken legally or otherwise to ease depression, make life seem more bearable, or time The practicalities pass more quickly, LGBT homeless youth are disproportionately of dealing with prone to substance abuse problems. homelessness and Mental health crises and substance abuse impact the decisions home- integrating an LGBT less youth make about their behaviors on the streets, particularly identity into daily life when it comes to sexual activity. In light of this, we include discus- put tremendous stresses sion of risky behaviors in which research suggests LGBT youth are and strains on youth. more likely to participate. We also include a section on the particular needs and issues faced by transgender homeless youth. The range of potential crises faced by homeless youth each day includes lack of shelter, food, income and a safe space to “hang out.” These factors combine to drive some in the direction of survival-focused criminal activity. In turn, they become involved with the juvenile justice and prison systems. Therefore, we discuss the role of LGBT youth as victims and victim- izers, as well as the consequences of their interactions with the criminal justice system.

MENTAL HEALTH ISSUES While all homeless youth are disproportionately prone to psychological issues compared with the general population, new research suggests that LGBT homeless youth may be especially vulnerable.229 Confronted with the social stigma attached to being a sexual minority, in addition to the many stresses that come with being homeless, the LGBT homeless population may be more likely to develop psychological problems.

229 In the course of this chapter, literature refers to LGBT youth, LGB youth and gay and/or lesbian youth. We remain consistent in our use of LGBT where appropriate, but when analyzing another author’s work, we refer only to the specific population they studied. 41 HOW ARE HOMELESS YOUTH AFFECTED? Before focusing specifically on research in mental health issues faced by LGBT homeless youth, we first review the available research on the prevalence of mental health issues among homeless youth in general. Martha Burt’s analysis of the National Survey of Homeless Assistance Providers and Clients (NSHAPC) found that 46 percent of clients under 24 years of age suffered from mental health problems within the last year. Those percentages climbed to 50 for those under 20 years of age and 56 percent for those aged 20 to 24 years old when clients were asked about mental health problems over the course of their lifetime. Forty five percent of clients over the age of 25 reported mental health problems over the last year and 57 percent over the course of their lifetime.230 Despite the age difference within the population, this report indicated that homeless youth are just as badly affected by mental health problems as their older counterparts. In a separate study of 432 homeless youth in Hollywood, CA, Youth who feel Unger and colleagues reported that the prevalence of mental health extremely negative about problems and substance-related disorders far exceeded the rates of their lives are prone to these disorders in community and school samples of adolescents, becoming desperate with 82 percent of the homeless youth surveyed reporting at least enough to risk their lives. one mental health problem.231 A lack of effective social support contributes to mental health prob- lems, particularly depression, in homeless youth. Homelessness may interact with other factors, such as a history of childhood sexual abuse, causing youth to rely on their peers for social support. Understandably, these peers are also likely to suffer from inadequate support networks and are also likely to be suffering from mental health problems. One study found that while peer social support might be expected to reduce depression, social support from peers on the street may actually lead to pressure towards delinquency and may contribute to depression.232 Even for youth who have positive support networks, including supportive contact with family members and the presence of supportive friendships, depression continued for those who were abused by family members or care- takers.233 Homeless youth who experience abuse at the hands of their caregivers before running away are at greater risk for mental illness than those who were not abused in the home. Unfortunately, friendships with other street youth may exacerbate this problem. While homeless youth may congregate in specific areas and appear to be part of a rela- tively cohesive, if displaced, community, loneliness is a significant problem and has been linked to a number of mental health problems, including depression and psychosomatic illness.234 Work by Ami Rokach of the Institute for the Study of Psychosocial Stress sheds light on how the causes of loneliness differ between homeless youth and the population at large.235 Rokach surveyed 324 adolescents in Toronto, Canada, including 113 homeless youth and 211 domiciled youth about their experiences with five different causes of loneli- ness: personal inadequacies, developmental deficits, unfulfilling intimate relationships, relocation/significant separation and social marginality.

230 Burt, M., Aron, L.A., Lee, E., & Valente, J. (2001). Helping America’s homeless. Washington, DC: The Urban Institute Press. p.157. 231 Unger, J. B., Kipke, M. D., Simon, T. R., Montgomery, S. B. & Johnson, C. J. (1997). Homeless youths and young adults in Los Angeles: Prevalence of mental health problems and the relationship between mental health and substance use disorders. American Journal of Community Psychology, 25(3). 232 Bao, W.-N., Whitbeck, L. B. & Hoyt, D. R. (2000). Abuse, support, and depression among homeless and runaway adolescents. Journal of Health and Social Behavior, 41. 233 Ibid. LGBT Youth 42 Homelessness On every scale except personal inadequacies, homeless youth consistently scored higher. According to Rokach, “it is almost an inevitable conclusion that being homeless includes being lonely, desolate, and isolated.”236 The relationships between loneliness, hopeless- ness, and life-threatening behaviors indicate that youth who feel extremely negative about their lives are prone to becoming desperate enough to risk their lives.237 Some homeless youth report that loneliness and depression are mediated by a personal sense of resilience. This protective capacity to cope with adversity may be a factor behind the better than average personal inadequacies score of Rokach’s respondents. Additionally, their resilience mechanism seems to be Research found that strengthened by the maintenance of connections between homeless more than half of youth and their family, peers, and other adults.238 homeless youth reported For homeless youth who lack strong support networks, loneliness suicidal thoughts and desolation may be internalized much of the time. The literature and over one quarter on suicidal behavior in homeless youth reveals some of the sad attempted suicide in the consequences of this isolation. Family problems, mental illness, preceding 12 months. and physical and sexual abuse have all been associated with suicidal behavior and homeless youth at risk for these factors are particularly vulnerable.239 Previous research found that more than half of homeless youth reported suicidal thoughts and over one quarter attempted suicide in the preceding 12 months.240 While the factors that predict suicidal behavior in homeless youth are similar to those in the general population, the much greater incidence of those factors contributes to the need for special awareness of suicide risk in the homeless youth population.241

MENTAL HEALTH CRISES FACING LGBT YOUTH Research has documented high rates of depression and substance abuse among sexual minorities, as well as alarmingly high rates of suicide and suicidal thoughts.242 One study in 2004 found that significantly more LGB youth had thoughts of suicide than did their heterosexual peers (73 percent compared to 53 percent), and one-half of LGB youth had attempted suicide at least once, compared to one-third of heterosexual youth.243 The results of other studies are equally disturbing. In a study of youth in Massachusetts, half of the LGB-identifying youth had contemplated suicide.244 In 2005, the National Runaway Switchboard estimated that a lesbian, gay, bisexual, transgender and/or questioning youth commits suicide every five hours and 48 minutes and that 30 percent of gay and bisexual males attempt suicide at least once.245 As far back as the late 1980s, when the federal govern-

234 McWhirter, B. T. (1990). 235 Rokach, A. (2005). The causes of loneliness in homeless youth. The Journal of Psychology, 139(5). 236 Rokach, A. (2005). p.477. 237 Rew, L. et. al. (2001). 238 Ibid. 239 Yoder, K. A., Hoyt, D. R. & Whitbeck, L. B. (1998). Suicidal behavior among homeless and runaway adolescents. Journal of Youth and Adolescence, 27(6). 240 Ibid. p.757. 241 Leslie, M. B., Stein, J. A. & Rotheram-Borus, M. J. (2002). Sex-specific predictors of suicidality among runaway youth. Journal of Clinical Child and Adolescent Psychology, 31(1). 242 Safren, S. A. & Heimberg, R. G. (1999). Depression, hopelessness, suicidality, and related factors in sexual minority and heterosexual adolescents. Journal of Consulting and Clinical Psychology, 67(6). 243 Whitbeck, L. B., Chen, X., Hoyt, D. R., Tyler, K. A. & Johnson, K. D. (2004). Mental disorder, subsistence strategies, and victimization among gay, lesbian, and bisexual homeless and runaway adolescents. The Journal of Sex Research, 41(4). p.334. 244 Wen, P. (2002, October 22). 245 National Runaway Switchboard. (2005). Critical issues affecting LGBT youth 43 ment conducted research on suicide among all youth, a report produced under the auspices of the Secretary of Health and Human Services Task Force noted specifically the troubling research about LGB suicide. According to the report, the primary cause is “a society that discriminates against and stigmatizes homosexuals.”246 That is, these youth are not depressed as a natural function of their sexual orientation, but because of the consequences of living in a society that does not treat them fairly or equally. The effects of homophobia on sexual minority youth have been confirmed in more recent academic literature. The primary cause [of One study reported that openly identifying as LGB places a young LGB youth suicide] is “a person at risk for a number of stresses that contribute to the society that discriminates development of these problems, including abuse and stigmatization against and stigmatizes by peers.247 For those youth who attempt to hide the discovery of homosexuals.” their sexual orientation from peers and family, fear of discovery may undercut whatever benefits those social support systems might otherwise provide.248 In fact, one study found that when controlling for predictors of distress, no significant difference in rates of depression and suicidal thoughts existed between sexual minority youth and their heterosexual counterparts.249 A significant difference between the two populations was only found when the study considered sexual orientation along with other factors that increased risk of depression and suicidal thought, such as a lack of social support.250 Other studies do, in fact, indicate that LGB and questioning youth are at an increased risk for suicidality, which Rotheran-Borus et al. ascribe to pressures of “gay-related stress.”251,252 This suggests that they are disproportionately the victims of their environ- ments and that anti-LGBT stigma takes a real and serious toll on them. Faced with verbal and physical harassment from their peers and family, these youth are at special risk for taking what for them may seem like their best option: living on the streets.253 Some also see suicide as a solution. Homelessness is traumatic for all youth. For LGBT youth, who must also deal with “coming out” and living in a society that is often hostile, emerging research suggests that the dangerous consequences of homelessness are amplified. Cochran et al.’s comparative study of sexual minority and heterosexual homeless youth found that while the reasons for leaving home were similar between the two populations, LGBT youth left home more frequently than heterosexual youth.254 Fourteen percent left home because of family conflict over the youth’s sexual orientation.255 LGBT homeless youth reported more depressive symptoms than their heterosexual peers and showed significantly higher

246 Gibson, P. (1989). 247 Savin-Williams, R. C. (1994). Verbal and physical abuse as atressors in the lives of lesbian, gay male, and bisexual youths: Association with school problems, running away, substance abuse, prostitution and suicide. Journal of Consulting and Clinical Psychology, 62(2). 248 Safren, S. A. & Heimberg, R. G. (1999). p.859. 249 Ibid. p.864. 250 Ibid. p.865. 251 Morrison, L. L. & L’Heureux, J. (2001). Suicide and gay/lesbian/bisexual youth: Implications for clinicians. Journal of Adolescence, 24. 252 Rotheram-Borus, M. J., Hunter, J. & Rosario, M. (1994). Suicidal behavior and gay-related stress among gay and bisexual male adoles- cents. Journal of Adolescent Research, 9(4). 253 Savin-Williams, R. C. (1994). Verbal and physical abuse as stressors in the lives of lesbian, gay male, and bisexual youths: Association with school problems, running away, substance abuse, prostitution and suicide. Journal of Consulting and Clinical Psychology, 62(2). p.267. 254 Cochran, B. N. et. al. (2002). 255 Ibid. LGBT Youth 44 Homelessness rates of withdrawn behavior, social problems and delinquency, among other troubling psychological issues.256 Whitbeck et al. conducted a comparative study of LGB homeless youth and their heterosexual counterparts in which they specifically examined the lifetime prevalence of five mental disorders: conduct disorder, major depressive disorder, post-traumatic stress, alcohol abuse and drug abuse.257 They found that LGB adolescents are at greater risk for substance abuse, as they seem to use alcohol and drugs to cope with the societal stigma of homosexuality.258 Evidence for increased risk of mental health problems is presented by Remafedi et al. and Fergusson et al., with the latter reporting an increased risk of generalized anxiety disorder, major depression, conduct disorder, nicotine dependence, substance abuse, suicidality and co-morbidity of multiple disorders in LGB youth.259,260 A study comparing the mental health of 366 heterosexual youth with 63 LGB youth in the Midwest found that LGB youth were more likely to report symptoms of a major depressive episode than heterosexual youth, with gay males significantly more likely to meet the criteria for a major depressive episode than heterosexual males (42.1 percent compared to 24.4 percent).261 LGB adolescents were also more likely to have post- traumatic stress disorder.262 Homeless lesbians were found to be particularly troubled; not only did they have higher levels of mental health problems, but they also reported more physical and sexual victimization than any other group.263 Additionally, a difference may exist between mental health at the time of a study and the lifetime mental health of lesbian, gay, bisexual, and questioning youth. Noell and Ochs indicate that these youth present with high rates of depression and suicidal ideation on recent measures but do not seem to show these trends on lifetime measures of mental health.264 Whether this is a result of the resiliency noted earlier is not addressed.

MENTAL HEALTH SERVICES Limited mental health service resources do exist in shelters and walk-in clinics for home- less youth. Unfortunately, utilization of these services varies among young people on the street. One study confirmed that a mere 9 percent of homeless youth had accessed mental health services.265 This further increases their risk for mental and physical harm. The Midwest Homeless and Runaway Adolescent Project, a study of 602 homeless and runaway youth in “non-magnet” cities (avoiding typically studied cities such as New York, Los Angeles and San Francisco in favor of smaller centers in Nebraska, Kansas, Iowa and

256 Ibid. pp.774-775. 257 Whitbeck, L. B. et. al. (2004). 258 Rosario, M., Hunter, J. & Gwadz, M. (1997). Exploration of substance abuse among lesbian, gay, and bisexual youths: Prevalence and correlates. Journal of Adolescent Research, 12. 259 Remafedi, G., Farrow, J. A. & Deisher, R. W. (1991). Risk factors for attempted suicide in gay and bisexual youth. Pediatrics, 87(6). 260 Fergusson, D. M., Horwood, L. J. & Beautrais, A. L. (1999). Is sexual orientation related to mental health problems and suicidality in young people? Archives of General Psychiatry, 56(10). 261 Whitbeck, L. B. et. al. (2004). p.334. 262 Ibid. 263 Ibid. 264 Noell, J. W. & Ochs, L. M. (2001). Relationship of sexual orientation to substance use, suicidal ideation, suicide attempts, and other factors in a population of homeless adolescents. Journal of Adolescent Health, 29(1). 265 Slesnick, N. & Prestopnik, J. (2005). Dual and multiple diagnosis among substance using runaway youth. American Journal of Drug and Alcohol Abuse, 31(1). Critical issues affecting LGBT youth 45 Missouri) revealed gaps in utilization of support services in the homeless youth popula- tion.266 In the sample, females, younger runaways, shelter users, youth with social support networks, and youth abused by their family members or caretakers were more likely to seek out intervention services.267 However, minority youth who were abused by family members or caretakers were less likely to see a mental health professional than One study confirmed white homeless youth, suggesting that minority homeless youth do that a mere 9 percent 268 not receive the services that are available to other homeless youth. of homeless youth Additional adequately funded research is needed to provide statisti- had accessed mental cally significant data on the mental, physical and sexual health of health services. homeless youth, and LGBT homeless youth specifically, to ensure that resources are utilized to their optimum effect. These studies, as a whole, suffer from many of the flaws that attend any research into people experiencing homelessness or sexual minority populations: it can be difficult to reach the research populations, and when data are acquired, it may still be difficult to generalize findings across the population as a whole. Nevertheless, the findings that LGBT homeless youth face special mental health challenges are too substantial to ignore.

SUBSTANCE ABUSE The consequences of substance use and abuse are well documented in many subsets of the general population. Before focusing specifically on the LGBT youth cohort, we provide a basic overview of the literature on all homeless youth. Ask the average person on the street their impression of young people who experience homelessness, and odds are a good number of them will reference abuse of drugs and alcohol as common behaviors.269 The fact that substance abuse pathways both lead to and result from homelessness draws attention to the particular vulnerability of youth to be impacted by the ready availability of drugs and alcohol. The prevalence of alcohol and tobacco use among runaway youth can be seen as initially rooted in family conflict or breakdown, including situations where youths were exposed to family members who abused alcohol and/or drugs.270 Subsequent to becoming homeless, with all the attendant risks and stresses it brings, substance use has been identified as a coping strategy for all youth.271 Substance abuse is not an isolated behavioral outcome automatically causing or resulting from homelessness. Rather, it is inextricably linked to other behavioral and mental health concerns. The combination of stressors inherent in the daily life of homeless youth leads to substance abuse at alarmingly high rates when compared with the general population. Most shelters do not meet the need for effective intervention

266 Berdahl, T. A., Hoyt, D. R. & Whitbeck, L. B. (2005). Predictors of first mental health service utilization among homeless and runaway adolescents. Journal of Adolescent Health, 37(2). 267 Ibid. 268 Berdahl, T. A. et. al. (2005). 269 Mallett, S., Rosenthal, D. & Keys, D. (2005). Young people, drug use and family conflict: Pathways into homelessness. Journal of Adolescence, 28(2). 270 Ibid. 271 Cited in Mallett, S. et. al. (2005). LGBT Youth 46 Homelessness beyond basic crisis counseling. One study of 226 runaway youth living in two shelters in the southwest United States found that only 10 to 15 percent were ever treated for drug- and alcohol-related problems.272 Add to this the facts that suicidality, self-injurious behavior and low self-esteem have each been associated with increased prevalence of drug and alcohol abuse disorders and that depressive symptoms are associated with increased risk of alcohol abuse disorder, and a picture emerges of the risks facing homeless youth.273 Substance use and abuse is both a cause and a result of homeless- ness in the general population of homeless youth. In a study of Despite the prevalence of 302 homeless youth, Shelley Mallet and colleagues described the relationship between young people’s substance use and their substance abuse among pathways into homelessness. They found that 38 percent of young homeless youth, only 10 people who reported personal or familial alcohol and drug use to 15 percent were ever indicated that the substance abuse led directly to their homeless- treated for drug- and ness. Additionally, 17 percent of the drug-using youth reported alcohol-related problems. problematic drug use beginning after they became homeless as a result of different family conflicts.274 Numerous studies have documented patterns of drug and alcohol use in various popula- tions of runaway adolescents, universally resulting in compromised health and safety. Specific subpopulations of homeless youth face specialized risks. For example, a 2005 analysis of homeless youth who lacked parental monitoring and/or have peers that have been incarcerated or carry weapons indicates that they are at high risk for drug use.275 Judy Greene and colleagues provide an analysis of substance use among street youth, runaway youth residing in a shelter, and non-homeless adolescents. Table 2 details the percentages of youth in their study reporting alcohol and drug use. 276

Table 2: Percentage of youth in different housing situations and the substances they use Homeless youth Homeless youth Non-homeless Substance on the street in shelters youth Tobacco 81% 71% 49% Alcohol 81% 67% 57% Marijuana 75% 52% 23% Crack cocaine 26% 8% 1.4% Intravenous drugs 17% 4% 1% Other drugs (stimulants, hallucinogens, inhalants) 55% 34% 16%

272 Cited in Slesnick, N. & Prestopnik, J. (2005). p.193. 273 Jennifer, B. U., Michele, D. K., Thomas, R. S., Susanne, B. M. & Christine, J. J. (1997). Homeless youths and young adults in Los Angeles: Prevalence of mental health problems and the relationship between mental health and substance abuse disorders. American Journal of Community Psychology, 25(3). 274 Mallett, S. et. al. (2005). p.192. 275 Bousman, C. A., Blumberg, E. J., Shillington, A. M., Hovell, M. F., Ji, M., Lehman, S. & Clapp, J. (2005). Predictors of substance use among homeless youth in San Diego. Addictive Behaviors, 30(6). 276 Adapted from Greene, J. M., Ennet, S. T. & Ringwalt, C. L. (1997). Substance use among runaway and homeless youth in three national samples. American Journal of Public Health, 87(2). Critical issues affecting LGBT youth 47 The prevalence of substance use was consistently higher for street youth than it was for those in a shelter, and the shelter group in turn had markedly higher usage rates than non- homeless youth. These results demonstrate that the very real risk of substance use by youth is affected, at least in part, by their living circumstances. Substance use may be a coping mechanism which increases in prevalence as the living situation of homeless youth becomes more stressful and less stable. Regardless, the disparity in rates of substance use between homeless and housed youth is cause for concern, particularly because these findings having been replicated by Lynn Rew and colleagues277 as well as other more recent research.278 For example, in Minnesota, five separate statewide studies have found that between 10 percent and 20 percent of homeless youth self-identify as chemically dependent.279 Researchers based at Urban Peak, a youth services agency in Denver, Colorado that works with youth regardless of sexual orientation or gender identity, joined with trained outreach workers to conduct an eight-city public health survey. On December 9, 2004, they spoke with homeless youth living in Austin, Chicago, Minneapolis, Salt Lake City, St. Louis, Boulder, Colorado Springs and Denver. Twenty-two percent of their respon-

Figure 1: Lifetime substance use by homeless youth

Cocaine 37.2% Crack/freebase 22.6% Inhalants 20.2% Ecstasy 35.4% Cigarettes 68.6% Marijuana 78.7% Alcohol 78.5% Ketamine 14.5% Mushrooms 37.0% GHB 10.0% PCP 11.9% Heroin 13.5% Methamphetamine 25.1% DMX/Coricidin 13.0% Valium/Librium/Xanax 20.2% LSD 27.5% Oxycontin 17.2% Morphine/Codeine/Vicodin/Demerol 21.5% FRY/AMP/Wets 6.3% Other 5.3% Cocaine % used during lifetime Crack/freebase 277 Rew, L., Taylor-Seehafer, M. & Fitzgerald, M. L. (2001). Sexual abuse, alcohol and other drug use, and suicidal behaviors in homeless Inhalants adolescents. Issues in Comprehensive Pediatric Nursing, 24. 278 Slesnick, N. & Prestopnik, J. L. (2005). Ecologically based family therapy outcome with substance abusing runaway adolescents. Ecstasy Journal of Adolescence, 28(2). Cigarettes 279 Wilder Research. (2005). p.27. LGBT Youth Marijuana 48 Homelessness Alcohol Ketamine Mushrooms GHB PCP Heroin Methamphetamine DMX/Coricidin Valium/Librium/Xanax LSD Oxycontin Morphine/Codeine/Vicodin/Demerol FRY/AMP/Wets Other

0 10 20 30 40 50 60 70 80 dents identified as LGB and 1 percent as transgender. Their findings reveal high rates of substance use among homeless youth living outside typically studied cities such as New York and San Francisco (see Figure 1).280 They find that personal substance usage, family substance usage and likelihood of enrollment in a treatment program are higher for LGB homeless youth than for non-LGB homeless youth.281 Participants reported that supply and demand greatly influenced which drugs were available in different cities at various times and that fluctuating prices dictated which substances were used by homeless youth. Some Denver youth reported that heroin was available for as little as two dollars per bag.282 Additionally, homeless youth begin using drugs and alcohol at a very young age. The age of first use in the Urban Peak study was extremely low, with roughly half of the young people reporting substance use before the age of twelve and 14 percent indicating first substance use before the age of ten.283 As Greene et al.’s study suggests, being in the welfare system rather than on the streets does not inoculate homeless youth from the risks of drug abuse. A 2001 study of 144 runaway youth in a southwestern city examined whether previous foster/group home experience affected substance abuse levels among youth residing in a shelter at the time of the study. Researchers found that a history of residence in a foster/group home was associated with substance-related problems and increased use of prescription medications for psychological problems.284 Access to institutional care might have increased the potential for some youth to obtain needed medications that may have been forbidden or unavailable in their original home environment or on the streets. However, these data also indicate that out-of-home placement has negative consequences for homeless youth already vulnerable to substance abuse and other risks to their health and well-being.

SUBSTANCE USE AND LGBT YOUTH In recent years, increased attention has been paid to how LGBT youth might be at particular risk for substance abuse and associated A trajectory of negative health risks. Social stigma is a potent force behind the substance life experiences... abuse problems of LGBT homeless youth. LGBT youth in general includes foster care, experience chronic stress that is inflicted by peers and family members running away, living in in the form of verbal and physical abuse.285 However, this verbal and a group home, arrest, physical abuse is associated not only with increased substance abuse incarceration, sex work, by LGBT youth but also with negative outcomes including school- exposure to a wide range related problems, running away from home, conflict with the law, 286 of illegal drugs, and prostitution and suicide. For more information on these issues, intravenous drug use. see the “mental health issues” section of this report (see page 41).

280 Van Leeuwen, J., Boyle, S., & Yancy, A. (2004, December). Urban Peak public health survey report 2004: A multi-city collaborative. Unpublished work. p.20. 281 Van Leeuwen, J. M.et al. (2006). p.18. 282 Van Leeuwen, J.et al. (2004, December). 283 Ibid. 284 Slesnick, N. & Meade, M. (2001). System youth: A subgroup of substance-abusing homeless adolescents. Journal of Substance Abuse, 13. 285 Savin-Williams, R. C. (1994). 286 Ibid. Critical issues affecting LGBT youth 49 Current efforts to uncover any patterns of alcohol and drug use in the LGBT youth population have not focused purely on homeless youth. In an initial study, Rosario et al. hypothesize that LGB youth might be more inclined to turn to drugs and/or alcohol to cope with emotional distress that results from the social stigma of homosexuality.287 Of the 154 LGB young people in the study, 93 percent of the females and 89 percent of the males reported lifetime use of any legal or illicit substance. Sixty-seven percent of the female youth and 59 percent of the male youth specifically reported using an illicit drug.288 In a follow-up study with 156 young subjects, Rosario et al. concluded that increased substance use was connected to the coming-out process, but only temporarily.289 As LGB youth became involved with other LGB youth in recreational and social activities, their alcohol and marijuana use initially increased, but then decreased with greater involvement in such activities.290 Taking this problem to a different level, in San Francisco 19 percent of LGBT severely Verbal and physical poor or homeless youth admitted to selling drugs, another factor abuse is not only 291 contributing to the escalated level of abuse by LGBT youth. associated with Among homeless youth who often lack housing and social stability, increased substance this appears to be more evidence of the need for social service abuse by LGBT youth, providers to be aware of the specific risks faced by LGBT youth. but also school-related Adequate provisions must be made to minimize the risk of their problems, running substance use escalating above that of their heterosexual peers. away from home, In their study of young males who self-identified mainly as gay or conflict with the law, bisexual and self-reported a sexual encounter with another male prostitution, and suicide. within the previous six months—also known as young men who have sex with men (YMSM)—Clatts et al. report a trajectory of negative life experiences relative to the onset of drug use. This trajectory includes foster care, running away, living in a group home, arrest, incarceration, sex work, exposure to a wide range of illegal drugs, and intravenous drug use.292 The report belies some common assumptions about substance use as a direct cause of homelessness. The authors indicate a consistent timeline of negative life events in the three YMSM categories in the study (those who have never been homeless, those who have experienced homelessness in the past, and those who are currently homeless). The two groups that either have been or are currently homeless experienced negative life events such as homelessness before the onset of drug use, indicating that few of the YMSM they surveyed had used drugs prior to becoming homeless.293 The evidence in this instance, therefore, suggests that substance abuse is a consequence of homelessness, not its cause. James Van Leeuwen et al.’s work supports these findings by demonstrating that, above and beyond the public health risks that all homeless youth face, the risks are exacerbated for

287 Rosario, M. et. al. (1997). p.455. 288 Ibid. pp.462-463. 289 Rosario, M., Schrimshaw, W. & Hunter, J. (2004). Predictors of substance use over time among gay, lesbian, and bisexual youths: An examination of three hypotheses. Addictive Behaviors, 29(8). 290 Ibid. 291 Fagan, K. (2006, January 9). 292 Clatts, M. C., Goldsamt, L., Yi, H. & Gwadz, M. V. (2005). Homelessness and drug abuse among young men who have sex with men in New York city: A preliminary epidemiological trajectory. Journal of Adolescence, 28(2). 293 Ibid. LGBT Youth 50 Homelessness homeless youth identifying as LGB.294 In their six-state, eight-city study of public health issues that focused on substance use, Van Leeuwen et al. indicate that alcohol abuse was more common among LGB respondents (42 percent of sample) than non-LGB youth (27 percent of sample) and 38 percent of LGB youth had been in a substance abuse treatment program, as compared to 27 percent of 295 non-LGB youth. Injection drug use was more common among the Above and beyond the LGB youth, though there was no significant difference between LGB public health risks that and non-LGB youth in sharing needles or other drug paraphernalia, behaviors directly related to additional health problems.296 all homeless youth face, the risks are exacerbated Bryan Cochran and colleagues explain these phenomena by attrib- for homeless youth uting the substance use to coping with daily stressors associated with identifying as LGB. homelessness and coming out in general. They note: GLBT homeless adolescents experience not only the vulner- abilities, daily difficulties, and survival challenges of living on the street but also the discrimination faced by GLBT youth in general. In coping with these stressors, they may use more substances more frequently than do heterosexual youth.297 Various substance abuse treatment strategies for youth experiencing homelessness paint a hopeful picture for those runaways that have some access to a caretaker either in their family or in a foster home. Slesnik and Prestopnik have evaluated the efficacy of ecologi- cally-based family therapy (EBFT), a counseling approach in which a single counselor sees both the young client and a family member or caretaker. This counselor provides both parties with a range of behavioral, cognitive and environmental interventions in a series of family and individual sessions.298 Slesnik et al. provide evidence that this family- based approach can bring about a decrease in substance abuse in homeless youth that is significant compared with the influence of services shelters typically provide, such as crisis intervention, food, shelter, clothing, placement assistance and talking to shelter staff.299 Of course, for such family/youth interventions to work there needs to be a willing youth and a proximate family member or guardian, which may be particularly challenging for LGBT youth experiencing homelessness. In such cases, the existence of an appropriate support structure, be it a drop-in center or a shelter, is crucial. Slesnick and Prestopnik argue that the mission of the shelter system “is not correcting the ‘pathologies’ of troubled youth, but rather… providing for the successive ‘needs’ of young people.”300 It is also critical that those who work with homeless youth have an awareness of the potential benefits of family involvement, as well as knowledge of quali- fied alternative strategies, particularly for high-risk LGBT youth. Other researchers have interpreted substance use as an escape-avoidance coping tactic in homeless adolescents and propose that a treatment strategy that targets anxiety disorders in these youth may be productive.301

294 Van Leeuwen, J. M.et al. (2006). 295 Ibid. 296 Ibid. 297 Cochran, B. N. et. al. (2002). p.775. 298 Slesnick, N. & Prestopnik, J. L. (2005). 299 Ibid. 300 Ibid. p.284. 301 Ibid. Critical issues affecting LGBT youth 51 This body of literature highlights the compounded risk of substance abuse in LGBT home- less youth. Despite the limitations of research on homeless or LGBT youth, a pattern of concerns arises when dealing with this highly at-risk population. LGBT homeless youth face substantial challenges in avoiding initial drug use when it may be part of a coping mechanism, and yet more difficulties in subsequently overcoming abuse. Moreover, young people’s individual challenges on the streets—the stress of vulnerable living circumstances and the intersecting stigma of identifying as LGBT—are oftentimes exacerbated by risk- taking peers. Targeted outreach to this vulnerable population is essential to improve the health and quality of life of homeless LGBT young people.

LGBT HOMELESS YOUTH PROFILE: DANNY Danny, 19 and gay, is originally from Denver, Then Danny started sinking into the world of Colorado. He began being pushed from foster drugs, as do many homeless LGBT youth. Cocaine home to foster home when he was seven years got to be an hourly activity for him, but he real- old, and as a young boy he was molested by ized he needed to stop using it when one of his several people. When he was 17, after spending friends brought over a needle and suggested they two years detained by the Division of Youth start using the drug intravenously. “It scared the Corrections for a parole violation, he moved hell out of me,” he said, “because I know where it in with his aunt, who is can lead.” His sister died of a heroin overdose, and an alcoholic. After a fight the realization that his drug use was inching closer Though he never about politics, Danny’s and closer to heroin convinced him to get sober. thought of it as aunt told him to keep his Danny currently attends treatment groups as well prostitution, Danny’s “gay ass” out of her house. as Alcoholics Anonymous, but he worries about situation forced him to He had had enough—this methamphetamine use specifically among LGBT seek out men looking for unstable environment youth: “I see meth as a big problem in our com- sex so he would have reminded him of all those munity. I’ve done meth with only gays and lesbians. a roof over his head. years in foster care—so But cocaine, everybody does it, gays, straights.” he left his aunt’s house. Although he was still tech- Urban Peak, a youth shelter in Colorado, nically supposed to be in foster care at this point, referred him to his drug treatment groups. he says, “I slipped through the cracks. They lost Danny has been staying at Urban Peak off and my file I guess. And I found myself homeless.” on for the past two and a half years. Though he wanted to stay with his biological parents, Like many homeless youth, Danny’s life on the it is not a viable option. “They are Jehovah’s streets was filled with drug abuse and sustained Witnesses, and I happen to be everything that’s by survival sex. Danny first began earning so against them,” he explains. “My mother money for food and drugs by reading tarot showed me my grave she buried me in. She cards on the street. Though he never thought of said that I was dead to her.” Though Danny is it as prostitution, Danny’s situation forced him no longer considered a family member, he has to seek out men looking for sex so he would somewhat rekindled his relationship with his have a roof over his head: “I’d go to the library, mother as a “family friend,” because although I’d get on Craigslist[.org] and Manhunt[.com] she will not accept a gay family member, she can and Gay.com, just to find somewhere to sleep tolerate a gay friend. Urban Peak staff is essen- for the night, not for money. I slept with them tially Danny’s only housing option because he so I could have a place to stay.” cannot live with his family. LGBT Youth 52 Homelessness RISKY SEXUAL BEHAVIOR Homeless people often engage in behaviors that are, either directly or indirectly, associated with an increased risk of poor health outcomes. Homeless youth are especially vulnerable to engaging in risky behaviors because, in many instances, their basic needs for food, shelter and attention are not being met. Furthermore, they must also cope with a decreased capacity to negotiate the stresses of adolescence.302 In this section, we discuss sexual risks encountered by homeless LGBT youth, including survival sex and generally risky sexual behavior.

RISKY BEHAVIOR IN HOMELESS LGBT YOUTH Although the data documenting differences between LGBT and heterosexual homeless youth are mixed, it is important to remember that homeless LGBT youth are a highly vulnerable population, susceptible to risky behavior much like their heterosexual peers. Lesbian and gay youth are more likely to run away from home as a result of conflict with parents over sexual orientation than bisexual 303 or heterosexual youth. Oftentimes, homophobic families kick Oftentimes, homophobic LGBT youth out of their homes, creating a subgroup of homeless families kick LGBT youth youth dubbed “throwaways” who have been rejected by their care- out of their homes, givers and are thus even more vulnerable to negative outcomes.304 A study of thrown away youth in 10 cities found that they were creating a subgroup of approximately twice as likely as those without such an experience to homeless youth dubbed report suicidality, substance use, and criminal behavior such as theft, “throwaways” who have selling drugs and carrying weapons.305 been rejected by their caregivers and are thus Research conducted by Susan Ennett et al. illustrates the impact of even more vulnerable isolation on risky behaviors of homeless youth. Ennett et al. indicate that runaway youth lacking a social network were more likely to to negative outcomes. report using illicit drugs, having multiple sex partners and engaging in survival sex than youth that had a social network of peers.306 These data highlight the increased prevalence in the homeless LGBT youth population of exposure to a variety of negative life experiences and underscore the need to study risky behaviors and their causes and effects in this highly vulnerable population.

SEXUAL HEALTH RISKS FOR HOMELESS YOUTH POPULATIONS Rosenthal and colleagues find that homeless youth engage in sexually risky behaviors to cope with neglect of their basic needs. They participate in promiscuous sexual behavior combined with substance use, increasing their risk for physical and mental health problems.307 There are a number of additional studies that support these findings. Halcon and Lifson found that homeless youth who self-identified as heavy users of alcohol

302 Rosenthal, D. & Moore, S. (1994). 303 Rew, L., Whittaker, T. A., Taylor-Seehafer, M. A. & Smith, L. R. (2005). Sexual health and protective resources in gay, lesbian, bisexual, and heterosexual homeless youth. Journal for Specialists in Pediatric Nursing, 10(1). 304 Ringwalt, C. L., Greene, J. M. & Robertson, M. J. (1998). Familial backgrounds and risk behaviors of youth with thrownaway experi- ence. Journal of Adolescence, 21(3). 305 Ibid. 306 Ennett, S. T., Bailey, S. L. & Federmand, E. B. (1999). Social network characteristics associated with risky behaviors among runaway and homeless youth. Journal of Health and Social Behavior, 40. p.63. 307 Rosenthal, D. & Moore, S. (1994). Critical issues affecting LGBT youth 53 (consuming 15 or more drinks per week) reported having multiple sexual partners in the previous month. Injection drug use in females was also associated with having multiple sex partners.308 Over half of the young homeless women in the sample had been pregnant at least once, and over a quarter had been pregnant at least twice.309 In a 2001 study of homeless youth in youth centers, Wagner et al. found that almost 22 percent of sexually active males reported fathering a child. And of the 266 youths in their sample who were sexually active, 55 percent reported having at least one sexually transmitted infection (STI, also known as a sexually transmitted disease (STD)).310 Lyn Rew has created a simple overview of the determinants of sexual health among homeless youth:311

Determinants of Sexual Health of Homeless Youth • Socio-demographics (age, gender, ethnicity) • Sexual History (sexual orientation, sexual abuse, sexual debut) • Culture of Homelessness (duration, cause) • Cognitive-Perceptual Factors (knowledge of STDs, future time perspective, perceived social support, perceived connectedness, perceived health status, condom use) • Behavioral Factors (assertive communication, help-seeking for STDs) • Sexual Health Practices (safe sex behaviors, risky sexual behaviors)

Additional evidence from Rew et al., who studied 414 homeless adolescents, confirms high rates of sexually transmitted infections among homeless youth. One-quarter of their respondents reported treatment for gonorrhea, one in 10 were treated for chlamydia, one in 20 had been treated for syphilis and one in 14 were treated for AIDS.312 According to New York City-based research cited in the New York Times, an individual experiencing homelessness was seven times as likely as other New Yorkers to die from AIDS, 16 times as likely to be diagnosed with HIV, and the rate of tuberculosis infections among people experiencing homelessness was 11 times that of the general population.313 Substance use, unprotected sex with any number of sex partners, and exposure to STIs and HIV makes homeless LGBT youth more susceptible to further negative outcomes. An important factor in maintaining sexual health is consistent condom use. In a study of 425 homeless adolescents between 16 and 20 years of age, Rew et al. found that heterosexual and bisexual homeless youth were more likely to use condoms with a partner than their lesbian and gay counterparts.314 Their findings suggest that lesbian, gay, and bisexual homeless young people should not be treated as an aggregate, and

308 Halcon, L. L. & Lifson, A. R. (2004). Prevalence and predictors of sexual risks among homeless youth. Journal of Youth and Adolescence, 33(1). pp.75-76. 309 Ibid. p.76. 310 Wagner, L. S., Carlin, L., Cauce, A. M. & Tenner, A. (2001). A snapshot of homeless youth in Seattle: Their characteristics, behaviors and beliefs about HIV protective strategies. Journal of Community Health, 26(3). p.227. 311 Rew, L. (2001). Sexual health practices of homeless youth: A model for intervention. Issues in Comprehensive Pediatric Nursing, 24. 312 Rew, L., Fouladi, R. T. & Yockey, R. D. (2002). Sexual health practices of homeless youth. Journal of Nursing Scholarship, 34(2). 313 Santora, M. (2006). Health of the homeless is worse than imagined, new study finds. New York Times. Retrieved January 31, 2006, from http://select.nytimes.com/gst/abstract.html?res=F00F11F6355B0C728FDDA80894DE404482 314 Rew, L. et. al. (2005). p.16. LGBT Youth 54 Homelessness that homeless lesbian and gay youth may have a harder time negotiating condom use with a partner.315 In a study of 3,816 students who participated in the 1987 Minnesota Adolescent Health Survey, researcher Elizabeth Saewyc found that lesbian and bisexual young women are more likely than their hetero- LGBT homeless youth sexual counterparts to be sexually active, to perform sex work for are in greater need survival and to be at higher risk for physical and sexual abuse, and of targeted health less likely to use contraceptives effectively.316 According to Saewyc, promotion approaches “As with most homeless youth, [homeless lesbian and bisexual and materials that 317 female youth’s] principal method of survival is prostitution.” instruct them on how While not generalizable to all LGB youth, in a recent meta-analysis to successfully negotiate of various surveys incorporating responses from 801,990 adolescents condom use with their in the Pacific Northwestern United States and Canada, Saewyc sexual partners. found that LGB adolescents are disproportionately likely to acquire HIV and more likely than their heterosexual peers to have been sexually abused.318

SURVIVAL SEX With homeless LGBT youth on the street lacking stability in many areas of their lives, including shelter, nourishment and ongoing educational opportunities, it is not surprising that many resort to desperate means to survive. Rew and colleagues define survival sex as “exchanging sex for anything needed, including money, food, clothes, a place to stay or drugs.”319 Reflecting the experience of so many youth, 22-year-old Brian Murray describes his prostitution since 15 years of age stoically: “You’ve got to do what you’ve got to do to survive.”320 Like other sex workers, Brian will often seek shelter in an all-night Internet café where he can cruise online for a man to have sex with who will let him stay for the night. New technologies provide new techniques for homeless young sex workers to find their clients. In a focus group interview conducted by the author, Danny, a young gay man living in a shelter in the western United States, admitted that he, too, had done this. However, he simultaneously denied ever having been involved in prostitution or survival sex, despite being provided with a definition beforehand. “I’d go to the library, I’d get on Craigslist[. org] and Manhunt[.com] and Gay.com, just to find somewhere to sleep for the night, not for money. I slept with them so I could have a place to stay,” he explained.321 In one study, youth without a social network “were almost eight times as likely to have traded sex for money, drugs, food, or shelter compared to those with a network,” 322 and

315 Ibid. 316 Saewyc, E., Bearinger, L. H., Blum, R. W. & Resnick, M. D. (1999). Sexual intercourse, abuse and pregnancy among adolescent women: Does sexual orientation make a difference? Family Planning Perspectives, 31(3). 317 Ibid. p.127. 318 Saewyc, E., Skay, C., Richens, S. & Reis, E. (2006). Sexual orientation, sexual abuse, and HIV-risk behaviors among adolescents in the Pacific Northwest. American Journal of Public Health, 96(6). 319 Cited in Anderson, J. E. et. al. (1994). p.23. 320 Jacobs, A. (2004, June 28). Young, gay and homeless, with few places to turn. International Herald Tribune. p.2. 321 As stated during a focus group interview with the author. 322 Ennett, S. T. et. al. (1999). p.70. Critical issues affecting LGBT youth 55 the presence of a family member or a friend within the network decreased the prevalence of survival and unprotected sex.323 Youth who acquire “street competency,” the practical actions and skills that allow one to survive on the street, do so from a number of sources, including their households early on and later their homeless peers. A young man interviewed for a 2005 study of homeless youth in New York City related his experience as follows: When I arrived from Minnesota I knew the youth system. I knew there were programs out there that were more than happy to house me for a little while until I got the gist of things in New York… I ran down the next morning and found the number for the shelter [for youth]. From there I learned from other kids where the good places to hustle were—where the money was, how to do it.324 Several reports indicate that anywhere from one-quarter to about one-third of all homeless adolescents have engaged in survival sex and that a history of receiving goods for sex was associated with a history of sexually transmitted infection.325 A study of 542 male homeless adolescents in Montreal, Canada reported that 27.7 percent of the sample had been involved in survival sex, with 32 percent of the youth involved citing mainly female clients, 41 percent having primarily male clients, and 27 percent having clients of both genders.326 In a New York City study that was carried out while Rudy Giuliani was mayor and subsequently kept secret, more than one-third of homeless youth acknowledged earning money by prostituting themselves, and more than 50 percent felt it was likely or very likely they would end up contracting AIDS.327 In San Francisco, researchers studied 93 youth ages 13 to 25 involved in homeless youth behaviors. Sixty-seven percent of the participants “I really had to. I had no were living on the streets or in a shelter or transitional living money. My boyfriend did program, and 31 percent admitted they had worked as prostitutes it... I thought about it for to survive.328 In a separate study of youth working the piers in New York City, stories confirmed that “they began hustling as a way to a long-ass time. And I earn easy money, and many reported that they were curious about was on hormones and I the sexual experiences.” However, as one youth commented, “after was depressed too, and (the curiosity) goes away, it’s just about money.”329 I had no money in my pocket. I was stuck. I put According to a 1994 study of homeless youth that included, among money in my pocket.” others, sexual minority youth from the Gay and Lesbian Community Service Center in Los Angeles, California, approximately one-half of ––19-year-old African male and one-third of female homeless youths engaged in survival American transgender sex.330 Higher rates of survival sex were reported among males than homeless youth in females, and older female adolescents were less likely to use condoms Detroit, Michigan.

323 Ibid. 324 Lankenau, S. E., Clatts, M. C., Welle, D., Goldsamt, L. & Gwadz, M. V. (2005). Street careers: homelessness, drug use, and sex work among young men who have sex with men (YMSM). International Journal of Drug Policy, 16. p.16. 325 Halcon, L. L. & Lifson, A. R. (2004). 326 Haley, N., Roy, E., Leclerc, P., Boudreau, J.-F. & Boivin, J.-F. (2004). HIV risk profile of male street youth involved in survival sex. Sexually Transmitted Infections, 80. p.526. 327 Kihara, D. (1999). 328 Fagan, K. (2006, January 9). 329 Maitra, R. (2002). p.11. 330 Anderson, J. E. et. al. (1994). See also Halcon, L. L. & Lifson, A. R. (2004). LGBT Youth 56 Homelessness than younger women.331 While existing research shows that it is crucial to ensure that young lesbian and gay homeless youth know appropriate safer-sex practices, evidence suggests that experiences on the streets may make youth complacent. In a separate study of 276 homeless youth ages 16 to 23, females were found to have a better self concept sexually and to have safer sex more often than men.332 Moreover, for homeless female adolescents, having regular or casual female partners was a predictor of initiation into prostitution. Eighteen percent of the young women in the study reported having same-sex sexual partners.333 Homeless gay and bisexual young men who engage in survival sex are also at risk for negative health outcomes. In one study, young men who have sex with men (YMSM) exhibited heightened levels of anxiety and avoidance in close relationships (identified as having a fearful attachment style in personal relationships) and were more likely to have been homeless and to have participated in sex work than YMSM with a more secure social attachment style.334 Participation in sex work was predicted by greater age, lower socio-economic status, Latino identity and having been in foster care. Transgender homeless youth were about three times more likely to engage in survival sex than the rest of the sample.335 The extra risks facing transgender youth are discussed in greater detail in a separate section of this report, but one study of transgender youth in New York who used the Safe Space program in the 1990s estimated that half of the trans- gender runaways worked as prostitutes and 20 percent had tested positive for HIV.336 Survival sex is a desperate and risky behavior borne out of isolation and the lack of any tangible resources. It causes negative health outcomes for any homeless youth, but especially for highly vulnerable LGBT homeless young people. Those who have been abused while younger, especially sexually abused males, are particularly prone to taking sexual risks.337 A limited number of health care facilities for LGBT youth do exist in the United States, including some that receive outside funding to provide services for homeless youth without an address or health insurance. For example, the mission of the Adolescent Health Center at the Mount Sinai Medical Center in New York City is to provide …confidential comprehensive medical, mental health, family planning, and health education services to young people between the ages of 10–21… The Adolescent Health Center is committed to providing treatment to all teenagers regardless of ability to pay, and will accept all payment plans as well as those without medical coverage.338 Such programs are rare, and for those unable to access such services the ongoing risks are extraordinarily high. The problem is also not as simple as homeless youth engaging

331 Ibid. 332 Taylor-Seehafer, M. & Rew, L. (2005). Gender and sexual orientation differences in personal resources, social resources, and sexual health outcomes in homeless youth. Journal of Adolescent Health, 36. 333 Weber, A. E., Boivin, J.-F., Blais, L., Haley, N. & Roy, E. (2004). Predictors of initiation into prostitution among female street youths. Journal of Urban Health: Bulletin of the New York Academy of Medicine, 81(4). 334 Gwadz, M. V., Clatts, M. C., Leonard, N. R. & Goldsamt, L. (2004). Attachment style, childhood adversity, and behavioral risk among young men who have sex with men. Journal of Adolescent Health, 34. 335 Gaetz, S. (2004). 336 Pratt, C. (1995, June 18). The perilous times of transgender youth. The New York Times. p.CY7. 337 Taylor-Seehafer, M. & Rew, L. (2005). 338 The Mt. Sinai Medical Center. (2006). Adolescent Health Center: Our mission. Author. Retrieved June 21, 2006, from http://www. mountsinai.org/msh/msh_program.jsp?url=clinical_services/ahc.htm Critical issues affecting LGBT youth 57 in a single risky behavior while managing or moderating all others. Risk clustering, a tendency to engage in several risk behaviors simultaneously, increases the risk of adverse health consequences, including high rates of STIs, pregnancy and substance abuse, and it is often observed in homeless and street youth.339 One study found that 50 percent of the homeless youth sampled reported two or more simultaneous risks, including recent sexual intercourse, a history of STIs and a history of survival sex.340 The capacity of homeless youth to manage risks and to ultimately escape the streets is by no means assured. One community that faces particular threats to safety and health is transgender homeless youth, which we discuss in more detail in the next section.

THE EXPERIENCE OF TRANSGENDER HOMELESS YOUTH The bulk of this report’s analysis addresses the experiences of LGBT youth collectively, but there are a number of issues that specifically impact those who are transgender. In this section, we discuss these issues in order to better enable service providers to meet the needs of transgender homeless youth. Individuals who identify with the umbrella term “transgender” Transgender individuals often simultaneously refer to themselves in a number of additional are disproportionately ways, including transsexual, cross-dresser, androgyne, genderqueer, represented in the femme queen, butch, boi, drag king or queen and others. Regardless homeless population, and of their specific identity, gender non-conforming people require some reports indicate that 341 similar protections of privacy and safety. Additionally, transgender one in five transgender individuals may be heterosexual, gay, lesbian or bisexual; sexual individuals need or are at orientation is completely distinct from their gender identity. risk of needing homeless Transgender individuals are disproportionately represented in the shelter assistance. homeless population. More generally, some reports indicate that one in five transgender individuals need or are at risk of needing home- less shelter assistance.342 Despite these alarming statistics, most emergency and short-term homeless shelters are segregated by birth sex, and placements within the shelter system are determined by staff members who decide which shelter to admit a client to regardless of the individual’s gender identity.343 Like their LGB peers, trans-identified individuals become homeless due to a lack of affordable housing, mental health and addiction problems, physical abuse and estrange- ment from their families. However, they have fewer legal protections from job and housing discrimination than other sexual minorities and often face additional complications in accessing appropriate care.344 Economic realities and discrimination can make a trans- gender person’s life remarkably difficult. Transgender people typically need to update their identification documents and legally change their name to reflect the gender that

339 Halcon, L. L. & Lifson, A. R. (2004). 340 Ibid. p.76. 341 Mottet, L. & Ohle, J. M. (2003). 342 Ibid. 343 Ibid. 344 Mottet, L. (2004). The education and policy needs of transgender individuals. SIECUS Report, 32(4). LGBT Youth 58 Homelessness they are living. However, many transgender youth are unable to do this either because of the fees associated with officially making these changes or because they cannot meet the medical standards that some state agencies require before updating gender.345 Accurate and up-to-date documentation is usually a prerequisite for access to education, jobs, safe spaces and services. Lack of documentation places yet another hurdle in the way of a transgender young person who is trying to stay safe and healthy. One study of transgender individuals indicates that approximately 60 percent have been harassed or victims of violence, while 37 percent have experienced economic discrimina- tion.346 In many places in the United States, trans-identified homeless individuals are denied access to shelters because of their gender or are placed in inappropriate housing based on social service providers’ perceptions or ignorance. This lack of stable housing can subsequently lead to problems in gaining or maintaining employment, further lessening life stability. Evidence suggests that because of this lack of housing or employment, many homeless transgender people turn to survival sex, which obviously increases their risk for exposure to sexually transmitted infections and becoming victims of violence.347 Much like their gender-conforming peers, some trans-identified individuals may engage in additional survival crimes such as theft or selling drugs as a source of income, increasing their risk of becoming victims of physical and sexual assault, violent crimes that are seldom reported to the police.348,349 The spiral of despair is all too obvious and difficult to escape without adequate institutional support. Trans-identified youth who begin exploring their gender identity at an earlier age face similarly rampant discrimination as trans-identified adults. However, their youth and inexperience in life inevitably raises the stakes for them. In a study completed by the Gay, Lesbian and Straight Education Network (GLSEN), 90 percent of transgender youth in schools reported feeling unsafe, compared with 46 percent of gay or bisexual males and 41 percent of lesbian and bisexual female students.350 Additionally, transgender youth are even more marginalized than their gay, lesbian, and bisexual (GLB) peers, often feeling unwelcome at agencies that serve GLB youth.351 Homeless transgender youth face similar safety and privacy concerns on the street, where discrimination against LGBT youth is rampant. Shelters often create unsafe and hostile environ- ments by imposing gender-enforcing behavioral rules and dress codes, causing many transgender youth to wind up on the street, engaging in risky survival and coping behaviors.352 Like homeless youth in general, trans-identified homeless youth are often reprimanded for their survival crimes by the criminal justice system, which exposes them to further violence and abuse.

345 HCH Clinicians’ Network. (2002, June). Crossing to safety: Transgender health & homelessness. Healing Hands. 6(4). 346 Cited in Ibid. 347 HCH Clinicians’ Network. (2002, June). 348 Mottet, L. & Ohle, J. M. (2003). 349 Dean, L., Meyer, I. H., Robinson, K., Sell, R. L., Sember, R., Silenzio, V. M. B., Bowen, D. J., Bradford, J., Rothblum, E., White, J., Dunn, P., Lawrence, A., Wolfe, D. & Xavier, J. (2000). Lesbian, gay, bisexual, and transgender health: Findings and concerns. Journal of the Gay and Lesbian Medical Association, 4(3). 350 Cited in Cianciotto, J. & Cahill, S. (2003). Education Policy: Issues affecting lesbian, gay, bisexual and transgender youth. National Gay & Lesbian Task Force Policy Institute. Retrieved September 10, 2006, from http://www.thetaskforce.org/downloads/EducationPolicy.pdf 351 Haynes, R. (2001). Towards healthier transgender youth. Reprinted with permission from Crossroads, a publication of the National Youth Adocacy Coalition. Retrieved June 21, 2006, from http://www.transgenderzone.com/library/hl/fulltext/27.htm 352 Mottet, L. & Ohle, J. M. (2003). Critical issues affecting LGBT youth 59 EXCERPT FROM QUEER YOUTH IN CARE IN MANITOBA: AN EXAMINATION OF THEIR EXPERIENCES THROUGH THEIR VOICE S Linda Dame, a former practicing social worker incredibly ridiculous and abusive case planning in Winnipeg, Canada, writes of being told strategies for many years, if not throughout her about a “particularly troublesome” client with entire young life. No note in the file referred to whom she would be working… her transgenderism, and all notes referred to her as male and used her original name, even I was informed that he was the most difficult thought she had changed it years previous. File child my entire office had ever experienced notes from as young as six years old described her and very easily the most difficult child in the interest in “dressing like a female.” A psychologi- entire system period… After prodding, I was cal consultation conducted when this youth was told that this teen liked to act out by dressing about eight years old stated that when asked to provocatively and inappropriately and used his draw a picture of herself, she drew a woman… negative attention-getting behavior to escalate staff in his home… I had a good idea of what The staff in the treatment home where she was considered provocative dress within youth lived routinely ridiculed her and ignored Child culture, and I felt unperturbed by it. I was soon Advocate’s Office’s direction to respect her to discover that nothing that I was told regard- chosen name, even after she launched a formal ing this youth was either accurate or fair. complaint. Case planning notes in her files outlined strategies to address her cross-dressing At the time of our first meeting… I had reviewed behavior, for example, allowing her to wear the file… so I already knew that this boy was in women’s clothing complete with make-up only fact a transgender male to female young woman on Thursdays and only in the house. This and and that she, not he, had been subjected to other strategies failed miserably.

Source: Dame, L. (2004). Queer youth in care in Manitoba: An examination of their experiences through their voices. The Canadian Online Journal of Queer Studies in Education, 1(1).

ACCESS TO MEDICAL CARE FOR THE HOMELESS TRANSGENDER COMMUNITY There are two types of medical care that transgender people need access to. First, simple, non-trans-specific (not related to sex reas- Trans-identified youth signment) health care. In attempting to acquire this care, whether who begin exploring for a cold, flu, heart condition or broken leg, many transgender their gender at an individuals experience maltreatment from medical providers who earlier age will face are judgmental, unsympathetic and poorly informed about gender similar discrimination identity. This maltreatment makes it less likely that a transgender as trans-identified person will seek health care in the future. Poorly informed medical adults. However, their providers also often fail to provide important services, including youth and inexperience gender-appropriate screening and care for life-threatening diseases inevitably raises the such as breast or cervical cancer in female-to-male (FTM) patients stakes for them. and HIV infection in male-to-female (MTF) individuals.353

353 Lombardi, E. (2006). Enhancing transgender health care. American Journal of Public Health, 91(6). LGBT Youth 60 Homelessness The second type of care that transgender people need is related to sex reassignment and gender identity. Many transgender people need access to care in the form of counseling, hormone prescriptions and hormone-level monitoring, and sex reassignment-related surgeries in order to become and stay healthy. Thus, an important aspect of caring for transgender youth is ensuring that they have access to the medical care they need. An important part of this care “I started taking is related to changing the physical appearance of their body to better hormones when I was reflect their gender identity. Trans people are routinely denied this 13. I know plenty of care through private insurance, Medicaid and other health care stories about people systems. Such care is also often denied altogether to transgender just overdosing until youth under the age of 18. their liver just wasn’t If such care is not provided, trans-identifying people will often seek functioning.” out alternative suppliers of hormones and other substances that alter their physical appearance. Unable to access appropriate profes- sional medical care in a proper medical setting, homeless trans-identified individuals, including youth, are more likely to use street hormones or hormones illegally purchased from unscrupulous physicians without any monitoring of the health outcomes.354 This inevitably places them at higher risk for HIV and hepatitis from using shared needles.355 One study conducted by the San Francisco Transgender Health Project reported that over 50 percent of trans-identified participants had injected hormones outside conventional medical settings.356 Anwar, who identifies as a male living a female lifestyle, reported in a 2003 study: “I started taking hormones when I was 13. I know plenty of stories about people just overdosing until their liver just wasn’t functioning.”357 Additionally, people often resort to dangerous, self-administered Homeless trans youth silicone injections, which are illegal in the United States and spur are often ostracized masculinizing or feminizing physiological changes.358 Keisha, who by agencies that identifies as male-to-female (MTF), reflected on injecting silicone: serve their LGB peers, I was really scared. The risk I might be taking to my body. How and are therefore bad it was going to hurt. It did hurt… It’s like you feel your disproportionately at risk muscle and your bone separate. And that hurts. The first time for self-injury, substance you just feel it and it feels icky. But then as it begins to press, and abuse, and exposure to the muscle begins to press on to the epidermis, it’s agony. But HIV and other sexually it’s worth it, because—especially if you know what you want. You transmitted infections. know how you want to look… So I’ll be fine.359 The industrial-grade silicone commonly used on the street is subcuta- neously injected into cheeks, lips, chins, foreheads, breasts, thighs, hips and other parts of the body. The accumulation of liquid silicone in the body can result in scarring, systemic illness, disfiguration, respiratory illness and death.360

354 Ibid. 355 Dean, L. et. al. (2000). 356 Ibid. 357 As cited in Sausa, L. A. (2004). The HIV prevention and educational needs of trans youth. Retrieved June 21, 2006, from http://www. lydiasausa.com/Lydia_Sausa_Brochure.pdf 358 Dean, L. et. al. (2000). 359 As cited in Sausa, L. A. (2004). 360 Denny, D. (1997). Transgendered youth at risk for exploitation, HIV, hate crimes. American Educational Gender Information Service, Inc. Retrieved June 21, 2006, from http://www.youthresource.com/community/transtopis/being_trans/exploitation.htm Critical issues affecting LGBT youth 61 RISKS FACING HOMELESS TRANSGENDER YOUTH Trans-identified homeless youth are at particular risk for negative health outcomes compared to LGB youth. According to the American Academy of Pediatrics Committee on Adolescence, transgender youth are just as likely as gay and lesbian youth to be the victims of social stigma, hostility, isolation and alienation and to experience higher rates of substance use and suicidality.361 Additionally, trans youth are particularly marginalized on the basis of shelter and employment. Many homeless transgender youth are under the age of 18 and, in many areas, can neither get a job due to lack of photo identification, nor

Figure 2: A summary of risky behaviors reported by trans-identified youth

Mental health and well-being Thoughts of suicide 83% Attempted suicide 54% Sexually assaulted or raped 71% Engaged in sex work 46% Self-mutilation 21%

Body modifications Engaged in body modification 88% Engaged in hormone therapy 25% Received silicone injections 8% Intend to acquire hormones and/or 33% undergo surgery in the future

Alcohol and substance use Alcohol use 75% Binge drinking 21% Illegal drug use 79% Sold drugs 21% In recovery programs for substannce abuse 8% Sex under the influence of alcohol 96% Sex under the influence of illegal drugs 75%

HIV and STIs Reported being HIV positive 13% Reported an STI 17% Reported no being at risk for HIV 63% Engaged in unsafe behaviors in the 96% past year that placed them at risk Mental health and well-being Thoughts of suicide Attempted suicide

361 Dean, L. et. al. (2000). Sexually assaulted or raped LGBT Youth Engaged in sex work 62 Homelessness Self-mutilation Body modifications Engaged in body modification Engaged in hormone therapy Received silicone injections Intend to acquire hormones and/or undergo surgery in the future Alcohol and substance use Alcohol use Binge drinking Illegal drug use Sold drugs In recovery programs for substannce abuse Sex under the influence of alcohol Sex under the influence of illegal drugs HIV and STIs Reported being HIV positive Reported an STI Reported no being at risk for HIV Engaged in unsafe behaviors in the past year that placed them at risk

0 20 40 60 80 100 qualify for sex reassignment surgery.362 Homeless trans youth are often ostracized by agen- cies that serve their LGB peers, and are therefore disproportionately at risk for self-injury (suicide and self-mutilation of their genitalia), substance abuse, unsupervised medical care (injection of street hormones and silicone for their masculinizing or feminizing proper- ties) and high exposure to HIV and other sexually transmitted infections (from shared needles or unprotected survival sex).363 Street youth go to great lengths to access body-altering substances because they wish to halt the development of secondary sex characteristics such as growth of facial hair or breasts. Miriam Yeung, policy director at the LGBT Community Center in New York City, notes: “Transition becomes more difficult and costly after puberty… You don’t have to shave off your Adam’s apple if you don’t develop it.”364 Figure 3 provides a graphic account of the risky behaviors reported by transgender-identified youth.365

COMMUNITY-BASED HEALTH CENTERS REACHING OUT TO LOW AND NO INCOME TRANSGENDER PEOPLE Few medical care resources exist that offer services to homeless transgender adults and young people, and, as a result, trans youth can end up at particular risk. The American Journal of Public Health’s Field Action Report acknowledges the need for a “community-tailored health intervention program that creates a safe space where transgender [people] can feel comfortable discussing issues related to gender history, sexual risk, depression and substance abuse” and advocates inclusion of trans-identified practitioners to deliver health care services to transgender patients.366 These are clinics that serve transgender clients, but they are mostly located in major urban areas, leaving many suburban and rural transgender youth without services. The following are examples of the few clinics serving transgender clients. The Transgender Clinic of Tom Waddell Health Center in San Francisco, California is a community health provider serving the transgender community. The clinic provides comprehensive care to transgender individuals, including primary well-care, nutritional and mental care, and social services, serving individuals of all gender identities (including MTF, FTM, intersex and a range of others), along with arranging translators for indi- viduals whose primary language is not English.367 In New York City, the Callen-Lorde Community Health Center offers comprehensive health care to trans-identifying clients regardless of their health insurance status, providing general primary care, trans-affirmative gynecological care, referrals for trans-sensitive mammography, cross-gender hormone therapy, laboratory monitoring, transgender counseling and education, and case management services including

362 Mottet, L. (2004). 363 HCH Clinicians’ Network (2002, June). 364 Roehr, B. (2004, September 22). Youth face health battles. Windy City Times. Retrieved June 21, 2006, from http://www.windycityme- diagroup.com/gay/lesbian/news/ARTICLE.php?AID=6160 365 Sausa, L. A. (2004). The HIV prevention and educational needs of trans youth. Lydia A. Sausa. Retrieved June 21, 2006, from http:// www.lydiasausa.com/Lydia_Sausa_Brochure.pdf 366 Nemoto, T., Operario, D., Keatley, J., Nguyen, H. & Sugano, E. (2005). Promoting health for transgender women: Transgender Resources and Neighborhood Space (TRANS) program in San Francisco. American Journal of Public Health, 95(3). 367 San Francisco Department of Public Health. (2005). Transgender Clinic of Tom Waddell Health Center. Author. Retrieved June 12, 2006, from http://www.dph.sf.ca.us/chn/HlthCtrs/transgender.htm Critical issues affecting LGBT youth 63 assistance with legal name changes, referrals for surgeons, and other support services.368 Unfortunately, they do not provide service to those under the age of 18 due to potential liability issues. In Chicago, the Broadway Youth Center on the city’s north side caters to the needs of transgender youth whether they are homeless or not. They provide much-needed reduced- price hormone therapy as well as counseling and critical peer-support groups to those over 18 and under 18 on a case-by-case basis. The idea is not only to maintain physical health, but also to promote mental health via support and evidence that they can look forward to a productive future.369 In Cleveland, Ohio, MetroHealth’s Dr. Henry Ng is one medical professional who has specifically sought out community input via forums at the LGBT community center. By coming to the community in need, Dr. Ng is ensuring optimal comfort and safety for an underserved population to speak to how his health care agency can better serve and treat people. Dr. Ng’s model is rare. As the youth program coordinator noted, “He’s just one of those good guys who’s doing what he’s supposed to do, doing what he can.”370 Sadly, state law does not allow MetroHealth to provide those under 18 years of age with transgender- related services. However, the organization is developing a primary care practice for all LGBT patients in Cleveland that will open in early 2007.371

CONCLUSION Data and anecdotal evidence speak to the particularly harsh challenges that trans- gender homeless youth face every day, one of the most harmful of which is the lack of information and awareness on the part of many social service professionals. At the same time, the relative lack of research specifically addressing transgender needs worsens this situation. There is a very clear need for more extensive research into the needs of this community.

368 Callen-Lorde Community Health Center. (2006). Callen-Lorde Community Health Center. Author. Retrieved September 10, 2006, from http://www.callen-lorde.org/ 369 Uptown Publications. (2003). ‘It doesn’t have to be tragic’. Author. Retrieved September 15, 2005, from http://www.gaylesbiantimes.com 370 Glassman, A. (2006, January 20). 371 Confirmed in an email communication from Dr. Ng to the author. LGBT Youth 64 Homelessness LGBT HOMELESS YOUTH PROFILE: AKIRA

Akira, 19, is an African-American who self-iden- anymore. She spent the past few years bouncing tifies as a male-to-female transgender youth. She from couch to couch; ”It was somewhere with lives in Detroit, Michigan. After leaving home somebody,” she says. And when she ran out of due to emotional stress, places to stay, she lived on the street. she spent time couch surf- For Akira, survival has ing and is now renting an Multiple risk factors exist for homeless LGBT been muddled by drugs, apartment with one of her youth, and problems in one part of life will sex work, unstable brothers in what is prob- often spill over into other areas, leading some living conditions and an ably her most stable hous- to feel that their lives are spinning out of con- interrupted education. ing situation since she was trol. Akira is no different. Her depression set in 16. Though Akira’s fam- after she lost her job and her apartment. In an ily forced her to support effort to cope, she began self-medicating with herself independently and be responsible for drugs and alcohol. her own housing, she says that now her family is more accepting of her gender identity and Because I was going through all that… I just they keep in contact with her regularly. Akira kept smoking [weed]. I had lost my job. I is a remarkable example of a young person who just kept smoking, kept smoking, smoking, is surviving and still focused on a successful and drinking, and drinking, and drinking. future despite her many challenges. And I was miserable.

For Akira, survival has been muddled by drugs, When she needed money to support herself sex work, unstable living conditions and an and to buy drugs, alcohol and hormones, she interrupted education. After identifying first became a sex worker. “I had to, I really had to,” as a gay male and then Akira explains. “I had no time. I had no money. as a transgender woman, My boyfriend did it. I mean, I had to, you Older transgender sex Akira has witnessed both know?” She learned street smarts and survival workers who had offered homophobia and trans- techniques from older transgender women in advice also served as a phobia on a personal similar situations and quickly learned how to warning to Akira. She level. After being forced to navigate this dangerous street subculture. Older leave her mother’s house, transgender sex workers who had offered advice looked at them and Akira moved in with her also served as a warning to Akira. She looked thought, “I’m not going best friend, whose room- at them and thought, “I’m not going to be like to be like that now. They mates were convinced that that now. They had been doing this for so long, had been doing this for she was running an escort right? They got nothing to show for it.” so long, right? They got service out of the apart- nothing to show for it.” ment even though she was Realizing that she needs more than street not involved in sex work smarts to survive and ultimately thrive, Akira at the time. According to plans to finish her last 12 high school credits Akira, “they [said] I was born a prostitute… that and obtain her diploma. Afterward, she hopes all transsexuals are prostitutes.” At that point, to attend college to study business management Akira’s friend told her she could not stay there and then work in real estate.

Critical issues affecting LGBT youth 65 CRIME AND VICTIMIZATION Research consistently shows that LGBT youth face victimization at home, at school, at their jobs, and for those who are homeless, at shelters and on the streets. There are rarely opportunities to feel 100 percent safe from harassment. Even if their home life is tranquil on the surface, many LGBT youth are first victimized in school.

PHYSICAL AND VERBAL HARASSMENT IN SCHOOL A study published in 2002 of 315 lesbian, gay, bisexual, and questioning (LGBQ) high school students in Massachusetts and Vermont indicated that LBQ females were at greater risk for truancy owing to fear, suicidality, drinking, drug use and victimization. Ten percent of LBQ females were victimized 10 or more times in the previous 12 months compared with about 1 percent of heterosexual females.372 The Gay, Lesbian and Straight Education Network (GLSEN)373 has for years documented the anti-LGBT verbal and physical harassment and assaults endured by LGBT youth in school environments.374 GLSEN’s 2005 study of 1,732 students aged 13 to 20 shows the extent of anti-LGBT harassment and violence in America’s classrooms:375 • 75.4 percent of students hear remarks such as “faggot” or “dyke” frequently or often. • 89.2 percent hear peers use demeaning phrases such as “that’s so gay” or “you’re so gay.” • Because of their sexual orientation, 64.3 percent felt unsafe, 64.1 percent had been verbally harassed, 37.8 percent had been physically harassed and 17.6 percent had been physically assaulted. • Because of their gender expression, 40.7 percent of students felt unsafe, 26.1 percent had been physically harassed, 45.5 percent had been verbally harassed and 11.8 percent had been physically assaulted. • 58.6 percent of victims never reported their harassment or assault to school officials, and of those who did, only 43.8 saw effective action taken by those officials. • 55.1 percent never reported incidents of harassment or assault to their parents or guardians, and 43.6 percent of the students who did inform their parents or guardian reported that that person took no action. Outside the classroom, similar negative experiences are often fueled by discrimination, which leads to homophobic peers perpetuating harassment and anti-gay violence. D’Augelli and Hershberger (1993) found that in a 14-city sampling of sexual minority youth, 80 percent reported verbal abuse, 44 percent reported threats of violence, 30 percent had been chased and 17 percent had been physically assaulted.376 Ryan and Rivers (2003) reflect on this problem by saying, “One of the primary barriers to providing appro-

372 Bontempo, D. E. & D’Augelli, A. R. (2002). Effects of at-school victimization and sexual orientation on lesbian, gay, or bisexual youths’ health risk behavior. Journal of Adolescent Health, 30(5). p369. 373 For more information, see www.glsen.org 374 GLSEN’s study on school climate does not include students who identify as questioning, so the discussion here is related only to LGBT students. 375 Kosciw, J. G. & Diaz, E. M. (2006). The 2005 national school climate survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools - Executive summary of a report from the Gay, Lesbian and Straight Education Network. Gay, Lesbian and Straight Education Network. Retrieved September 6, 2006, from http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/582-2.pdf 376 D’Augelli, A. R. & Hershberger, S. L. (1993). LGBT Youth 66 Homelessness priate services in a safe environment for LGBT youth has been the lack of understanding of the severity and routine nature of the harassment they experience.”377

YOUNG AND HOMELESS VICTIMS OF CRIME Homeless youth are often assumed to be solely criminals, not victims.378 In reality, however, homelessness is a “stress-filled, dehumanizing, dangerous circumstance in which individuals are at high risk of being witness to or victims of a wide range of violent acts.”379 Homeless youth are likely to be victimized the most. Take, for example, Gary, an 18-year-old former client of the Ruth Ellis Center in Detroit, Michigan: The National Runaway For Gary, living on the streets was complicated by the people Switchboard suggests he had to deal with to secure a place to sleep. Most days, he that the likelihood of was fine—a friend could help him out. On other days, strangers being a victim of crime were his only option. Gary came to Street Outreach Program for increases sevenfold survival services every day. Gary would have been 18 years old just by virtue of in May, but he was shot just three months before his birthday. identifying as LGBT. Police continue to investigate the murder as a hate crime.380 The degree to which homeless youth are disproportionately the victims of crime rather than the perpetrators is fairly well established. Miller et al.’s study of youth in Calgary noted the prevalence of crime against homeless youth, confirming that most experienced some sort of violence on a daily basis.381 The National Runaway Switchboard suggests that the likelihood of being a victim of crime increases sevenfold just by virtue of identifying as LGBT.382 Other researchers have confirmed a general tendency among LGBT youth to be the victims of robbery, rape and assault.383 In one study, 272 homeless youth in Seattle, of whom 37 percent identified as homo- sexual or bisexual, reported high rates of victimization.384 Among the entire sample, 35 percent had been beaten up at least once, 39 percent had been robbed, 44 percent had been threatened with a weapon, 47 percent of the females and 37 percent of the males had been propositioned to partake in the “street economy” by selling sex, and 31 percent of the females and 13 percent of the males had been sexually assaulted.385 The street economy is fertile ground for increased risk and violence. Integration into the street economy often occurs if a youth’s only sources of income are from activities such as dealing drugs, stealing, panhandling, sex work or posing for or selling pornography.386 All

377 Ryan, C. & Rivers, I. (2003). Lesbian, gay, bisexual and transgender youth: victimization and its correlates in the USA and UK. Culture, Health & Sexuality, 5(2). p.115. 378 Gaetz, S. (2004). p.447. For a more comprehensive review and analysis of the experiences of LGBT youth in public schools, see Cianciotto, J. & Cahill, S. (2003). 379 Fitzpatrick, K. M., LaGory, M. A. & Ritchey, F. J. (1999). Dangerous places: Exposure to violence and its mental health consequences for the homeless. American Journal of Orthopsychiatry, 69. p.439. 380 Personal written communication between the author and Grace McClelland, Executive Director of the Ruth Ellis Center. 381 Miller, P. et. al. (2004). p.742. 382 National Runaway Switchboard. (2005). 383 Kipke, M. D., Simon, T. R. & Montgomery, S. B. (1997). Homeless youth and their exposure to and involvement in violence while living on the streets. Journal of Adolescent Health, 20. 384 Wagner, L. S. et. al. (2001). 385 Ibid. p.223. 386 O’Connor, M. L. (1998). Unsafe behaviors place street youth, especially women, at risk of HIV. Family Planning Perspectives, 30(1). Critical issues affecting LGBT youth 67 of these risky behaviors are especially problematic for LGBT youth and have the potential to interact with each other to increase risk exposure levels. In other words, it is a circle from which some youth are permanently unable to escape. Among 372 homeless and runaway youth in Seattle, Tyler et al. found that “youth who experienced more sexual abuse were likely to affiliate with deviant peers, trade sex, and report numerous sexual partners on the streets,” a lifestyle that increases their risk for sexual victimization via involvement in risky behaviors.387 Youth do not have to become homeless for this cycle to begin. The victimization experienced in dysfunctional homes is believed to provide “basic training” for runaway youth to build abusive and coercive relationships with peers, leading to association with deviant peers and further negative physical and mental health outcomes.388 Additionally, a study published in 2001 pointed to a greater risk for sexual victimization for women, with 30 percent of young homeless females reporting victimization by sexual abuse compared with 15 percent of young homeless males.389 These findings are supported by a more recent study that describes the distinct impact of street spaces on female versus male street youth as follows: The gendered nature of the streets means that the various spaces that street youth colonize—to sleep, to occupy at night, to walk alone within, to eat, to meet friends, to drink or take drugs, to rest in or otherwise exist within—carry different risks for males and females.390 Because the streets are a male space, young women are less likely to operate independently when working and are more likely to find themselves engaging in economic activities (sex trade, drug dealing) where they are forced to surrender independence—and earnings—to others (usually males).391 One Canadian study links the victimization of homeless youth to a theory of social exclusion, drawing connections between victim status and lack of access to employment, housing and public spaces.392 The study’s authors note that the combination of circumstances homeless youth face on the street typi- cally pushes them “into places that impair their ability to adequately Only 33.1 percent of ensure their safety and security and, consequently, increase their risk homeless youth in one 393 of criminal victimization.” study told anyone at In Gaetz’s sample of 208 Canadian youth, 29.6 percent identified all when they were as LGB and 2.7 percent as transgender; the average age of all youth the victim of a crime. was only 20.1 years old. On average, they left home when they were Even fewer reported 16 years old. More than four-fifths of these youth had been victims their worst ever of crime, versus only 25 percent of all Canadians and 39.7 percent case of victimization of 15-to-24-year-old Canadians. Almost all categories of crime to the police. victimization were higher for homeless youth when compared with

387 Tyler, K. A., Hoyt, D. R., Whitbeck, L. B. & Cauce, A. M. (2001). The impact of childhood sexual abuse on later sexual victimization among runaway youth. Journal of Research on Adolescence, 11(2). p.164. 388 Ibid. 389 Ibid. p.161. 390 O’Grady, B. & Gaetz, S. (2004). Homelessness, gender and subsistence: The case of Toronto street youth. Journal of Youth Studies, 7(4). p.410. 391 Ibid. p.412. 392 Gaetz, S. (2004). 393 Gaetz, S. (2004). p.428. LGBT Youth 68 Homelessness their domiciled counterparts. The results were highly statistically significant for sexual assault and robbery.394 The nature of life on the streets means that reporting criminal victimization can lead to further trouble. This is reflected in Gaetz’s analysis of a sample of homeless youth. Only 33.1 percent of respondents told anyone at all when they were the victim of a crime,395 while only 12.2 percent reported their worst ever case of victimization to the police. Some youth cited their concern about appearing to be snitches as one reason for declining to report offenses, while others were involved in illegal activity at the time of their victimiza- tion.396 Silence often won out when there was …stigma associated with the offense (e.g., sexual assault)… [I]ndividuals feel reluctant, or unable, to tell anyone about In Des Moines, Iowa, the incident, particularly adults or police. In such cases, they the police consider kids are left to deal to deal with the emotional baggage and other who are harmed to be consequences of the crime on their own.397 “volunteer victims” There are parts of this country where the repeated victimization of because they know it is homeless LGBT youth, as well as their potential for involvement in a potentially dangerous criminal activity, has persuaded local authorities to seek constructive area but they still choose solutions. In Minnesota, the Department of Public Safety granted to hang out there. funds to the city of Minneapolis to provide case management and host home services for homeless LGBT youth; the city’s Department of Health Services served as fiscal agent for the project.398 In other places, government officials take the opposite approach. In Des Moines, Iowa, a particular part of town popular with homeless and LGBT youth is a haven for violence, but youth still choose to congregate there. The city police officers believe that the kids who are harmed are “volunteer victims” because they know it is a tough and potentially dangerous area but they still choose to hang out there. The fact that alternatives might be severely limited or themselves unsafe for many of the youth is not considered.399 Having a safe and secure place to sleep every night would obviously alleviate some of the immediate risks that homeless youth face, but the lack of social inclusion also plays a role. As Gaetz concludes: Being young and homeless… means many things—among the most significant being that one’s health and safety are jeopardized on a day-to-day basis... the trauma associ- ated with victimization will no doubt have a devastating effect and can present yet another barrier to moving successfully off the streets.400 Gaetz also suggests that the constant witnessing of bad behavior by street contemporaries may lead homeless youth to copy such activity. Compared with their non-homeless peers, it certainly seems to be the case, and evidence suggests that the abusive backgrounds from which many homeless youth emerge only make this outcome more likely.401

394 Ibid. p.433. 395 Ibid. p.440. 396 Ibid. 397 Ibid. p.439. 398 Dylan Nicole, d. K. (2004). City enters partnership to assist lesbian and gay homeless youth. Nation’s Cities Weekly, 27(10). 399 Anonymous. (2002, August 14). Out of control: At downtown’s biggest street party. Cityview, Des Moines, Iowa. p.9. 400 Gaetz, S. (2004). p.444. 401 Gaetz, S. (2004). p.426. Critical issues affecting LGBT youth 69 Hagan and McCarthy402 compared samples of 563 school students with 386 street youth in Toronto, Canada to see what risks enhanced the likelihood of any given youth being involved in criminal activity. Youth were classified as high-risk or low-risk using a formula created by the authors that included measures of family structure, class and parental control. This permitted the authors to segregate the youth into high, medium and low risk classifications. Their results show that high-risk youth are far more likely to commit delinquent acts regardless of One study of 1,055 whether they are on the street, but among low-risk youth, the odds of undergraduates... such behavior increase dramatically if they become homeless.403 found those majoring in For example, among low-risk youth the probability of being engaged criminal justice “unique in 20 or more serious offenses is 20 percent if they become homeless. in the degree to which That probability is reduced to only half of one percent if they remain they hold negative housed. In contrast, among high-risk youth, the odds of this level attitudes towards of repeated delinquency if housed are 3 percent but if living on the gays and lesbians.” streets climb to almost 38 percent.404 Without specifying a particular number of delinquent acts, the findings are stark. Fully 58.6 percent of the difference in likelihood to commit a crime is explained by youth’s experiences on the street.405 Once in the habit of committing such offenses, “theft activity often moves from the level of innovation [for immediate survival purposes] to avocation.”406 Despite the efforts of cities like Minneapolis to remedy some of the problems inherent in living on the streets, it is important to remember that oftentimes, homeless youth must be aggressive in seeking out the assistance they need. Their reluctance to do so on some occasions is not wholly unwarranted. There is ample evidence in the academic literature that law enforcement personnel are actually more homophobic, on average, than other people.407 Additionally, recent research suggests that the next generation of law enforcement professionals do not have a professional attitude towards the LGBT people they will eventually be charged with serving. In one study of 1,055 undergraduates at four universities, one researcher found that those majoring in criminal justice “are unique in the degree to which they hold negative attitudes towards gays and lesbians.”408 In another study, researchers conducted a content analysis of textbooks used widely in the field and surveyed 254 students, 176 of whom were law and justice majors.409 The content analysis confirmed that while other minority groups are addressed in the literature used to teach tomorrow’s law enforcement professionals, LGBT issues are conspicuously absent.410 Researchers found that the law enforcement students have higher levels of homophobia but were unable to explain why.411

402 Hagan, J. & McCarthy, B. (1992). 403 Ibid. p.552. 404 Ibid. p.553. 405 Ibid. p.554. 406 Ibid. p.556. 407 For example, see Arnott, J. (1994). 408 Cannon, K. D. (2005). “Ain’t no faggot gonna rob me!”: Anti-gay attitudes of criminal justice undergraduate majors. Journal of Criminal Justice Education, 16(2). p.226. 409 Olivero, J. M. & Murataya, R. (2001). Homophobia and university law enforcement students. Journal of Criminal Justice Education, 12(2). 410 Ibid. p.273. 411 Olivero, J. M. & Murataya, R. (2001). p.277. LGBT Youth 70 Homelessness THE CRIMINALIZATION OF HOMELESSNESS The National Coalition for the Homeless (NCH)412 has joined with the National Law Center on Homelessness and Poverty (NLCHP)413 to analyze a disturbing trend spreading across the United States: the criminalization of many life-sustaining activities associated with homelessness.414 Cities and towns are being increasingly creative in their efforts to force homeless people, including youth, out of the public eye and the public sphere. Pushed out of downtown areas, they are often thrust into the criminal justice system, moved away from many of the services they need and, ultimately, the prospect of escaping the streets altogether. Laws against sleeping, sitting or lying down under certain conditions in certain parts of a town or city openly criminalize people experiencing homelessness; selective enforcement of other ordinances does so more subtly. Twenty-seven percent of the 224 cities surveyed prohibited sitting or lying in certain public spaces, a 14 percent jump since 2002. Some cities have also begun to target people who feed the homeless in public spaces.415 In September of 2006, officials in Los Angeles reached an agreement with the ACLU to permit police to arrest people sleeping or lying on sidewalks between 6 a.m. and 9 p.m.416 The agreement came after a federal appeals court had earlier deemed such arrests cruel and unusual punishment.417 Other cities have embarked on similar programs to “clean up” downtown areas, though the constitutionality of such efforts is doubtful. A Las Vegas ordinance passed in July 2006 was struck down in October by a federal judge who declared that a ban on feeding the homeless was unconstitutional because it was “vague and denies the homeless people equal protection of the law.”418 In Sarasota, NCH notes the Florida, after two anti-lodging laws were deemed unconstitutional by “documented state courts, city commissioners passed a more targeted law including relationship between a clause that those eligible for arrest have “no other place to live.”419 increased police actions In other words, a person who has to sleep on the street qualifies for and the increasing arrest under the rule precisely because they have nowhere else to sleep. numbers of hate crimes/ If they had a home but for some reason chose not to sleep there, they violent acts against presumably would not be arrested. homeless people.” By punishing people simply for being homeless, cities and towns actually make a potential solution to the problem harder to achieve. If a homeless person ends up with a criminal record, it may be harder for him or her to qualify for certain benefits and difficult to rent permanent housing in the future. Additionally, NCH notes the “documented relationship between increased police actions

412 For more information, see www.nationalhomeless.org 413 For more information, see www.nlchp.org 414 The National Coalition for the Homeless & The National Law Center on Homelessness and Poverty. (2006). A dream denied: The criminalization of homelessness in U.S. cities. Washington, DC: Author. See also: The National Coalition for the Homeless. (2004). Illegal to be homeless: The criminalization of homelessness in the United States. Washington, DC: Author. 415 The National Coalition for the Homeless & The National Law Center on Homelessness and Poverty. (2006). p.9. 416 Winton, R. (2006, September 19). Plan would end homeless “tent cities”. Los Angeles Times. Retrieved October 31, 2006, from http:// www.latimes.com/news/local/la-me-homeless19sep19,0,6587007.story?coll=la-home-headlines 417 Weinstein, H. & DiMassa, C. M. (2006, April 15). Justices hand L.A.’s homeless a victory. Los Angeles Times. Retrieved October 31, 2006, from http://www.latimes.com/news/local/la-me-homeless15apr15,0,2130546.story?coll=la-home-headlines 418 Ellingson, T. (2006). Las Vegas now says feeding homeless ordinance unconstitutional. lasvegasnow.com. Retrieved October 31, 2006, from http://www.klas-tv.com/Global/story.asp?S=5600200&nav=menu102_2 419 The National Coalition for the Homeless & The National Law Center on Homelessness and Poverty. (2006). p.25. Critical issues affecting LGBT youth 71 and the increasing numbers of hate crimes/violent acts against homeless people.”420 Those inclined to attack their fellow citizens become emboldened when local policy and practice dehumanizes people experiencing homelessness and suggests that they alone are responsible for numerous social and economic ills. Research has proven that it is both far more expensive to house someone in jail than in supportive housing and far less productive for the individual or society in the long term.421 In the case of juveniles, who require particularly expensive, specialized care, costs can be 10 times as high in a juvenile justice or full-time rehabilitation service facility as they would be doing what it takes to get them off the street.422 As New York State Judge Kathryn Freed commented of people bought before her court for fare dodging on a bus that would take them to a homeless shelter: I consistently put on record how outraged I am by the whole thing. It’s a complete waste of the court’s time [to prosecute the illegal bus riders]. It takes a lot of person- power to process them, house them, and feed them. Meanwhile, the shelter, where they’re heading, is set up to do just that.423 Some proponents of punishment for petty offenses such as fare dodging believe that threatening potential offenders with more severe consequences will reduce offenses. Similar beliefs underlie a trend toward criminalizing various intrinsic aspects of homeless- ness or for tightening restrictions for crimes predictably committed by people experiencing homelessness. But what purpose does this serve? In the case of the homeless male youth population, while some do fear sanction by the state for criminal activity, serial offenders actually do not.424 A study of 125 male street youth in Edmonton, Alberta found that few feared getting caught, though some expressed a level of fear regarding the severity of their potential punishment should they be apprehended. Factors that reduced the level of fear experienced by homeless male youth included poverty, drug use, associating with other criminals, and having a lack of social constraints that might exist if they were still living at home with their parents or guardian.425 It is interesting in particular to note that despite living on the streets, parental perceptions of their behavior were still a factor in the level of fear for some respondents. Their lifestyle reduces their perception of risk in so many ways that it is difficult for homeless youth to objectively assess risk when it comes to the potential of being punished. For example, increased drug use among homeless youth, including LGBT youth, may lead to a cycle of criminal behavior: committing robbery to secure funds to buy drugs, which in turn leads to needing more money for more drugs, etc. In the case of violent crime, the longer youth have been homeless and living on the streets, the greater their expressed

420 National Coalition for the Homeless. (2006). Hate, violence, and death on main street USA: A report on hate crimes and violence against people experiencing homelessness 2005. Washington, D.C.: Author. p.49 For additional information on this phenomenon see also, National Coalition for the Homeless. (2005). Hate, violence, and death on main street USA: A report on hate crimes and violence against people experi- encing homelessness 2004. Washington, D.C.: Author. 421 See Lewin Group. (2004). Costs of serving homeless individuals in nine cities: Chart book. Author. Retrieved August 31, 2006, from http:// documents.csh.org/documents/ke/csh_lewin2004.pdf 422 Van Leeuwen, J. (2004). Reaching the hard to reach: Innovative housing for homeless youth through strategic partnerships. Child Welfare, 83(5). p.1. 423 The National Coalition for the Homeless & The National Law Center on Homelessness and Poverty. (2006). p.38. 424 Baron, S. W. & Kennedy, L. W. (1998). Deterrence and homeless male street youths. Canadian Journal of Criminology and Criminal Justice, 40(1). 425 Baron, S. W. & Kennedy, L. W. (1998). p.27. LGBT Youth 72 Homelessness certainty of being sanctioned for their behavior because they know how the system works. However, encouragement from their peers to continue established patterns of behavior mitigates these fears and diminishes the probability of the youth in question ceasing serious criminal activity.426 Many homeless youth commit criminal acts because they feel they have no alternative; this reduces their capacity to accurately consider the potential risks of their actions. Results of this study suggest that efforts to “increase the threats of punishment to the point that even high rate ‘chronic offenders’ view the punishments to be certain and severe” may not have the desired effect. The available research shows that traditional deterrence via fear will not work with this population.

THE JUVENILE AND CRIMINAL JUSTICE SYSTEMS The literature on the juvenile justice system is scarce, particularly on the experiences of LGBT youth. In fact, we could find no research dealing specifically with LGBT youth who came to the juvenile justice system directly from the streets. Therefore, in this section we begin by focusing generally on the experiences of LGBT people in prison before turning to a briefer examination of the concerns of homeless LGBT youth within the juvenile justice system. While a lack of adequate research on LGBT youth experiences necessarily limits these discussions, we do know that prisoners who are LGBT or perceived to be LGB or gender nonconforming are at high risk of sexual abuse in prison.

LGBT PEOPLE IN PRISON Research shows that in male facilities, gay men, particularly those exhibiting stereotypically “effeminate” characteristics, and male- Prisoners who are gay, to-female transgender prisoners are extremely vulnerable to sexual transgender, or perceived abuse.427, 428 One study, for example, found that 41 percent of gay to be gay or gender men were sexually assaulted in prison, compared to 9 percent of nonconforming are heterosexual men.429 This same study found that 53 percent of a at high risk of sexual sample of 80 self-identified homosexual prisoners in a medium- abuse in prison. security California prison had experienced sexual harassment and/or threats.430 James Robertson, professor of corrections at Minnesota State University, Mankato, has reviewed a number of studies of male-on-male rape in prison dating back to the 1960s. Nearly all present nonconsensual sex and rape as widespread in prisons. One found such abuse to be more prevalent in state prisons than in federal prisons.431 Many male inmates consent to sexual acts against their will to avoid alternative violence,

426 Baron, S. W. & Kennedy, L. W. (1998). p.45. 427 Mariner, J. (1999). No escape: Male rape in U.S. prisons. Human Rights Watch. p.71. 428 Roderick . Gary Johnson, 385 F.3d 503, 512. (5th Cir. 2004). 429 Wooden, W. & Parker, J. (1982). Men behind bars. New York: Plenum Press. p.18. Cited in Robertson, J. (1999). Cruel and unusual punishment in United States prisons: Sexual harassment among male inmates. American Criminal Law Review, 36(1). 430 Wooden & Parker (1982) 431 Robertson, J. (1999). Critical issues affecting LGBT youth 73 apparently feeling there are no other options.432 The New York Times reported in 2004 on the case of Roderick Johnson, a gay man forced into “daily sex acts” of sexual slavery in a Texas prison: “The Crips already had a homosexual that was with them,” Mr. Johnson explained. “The Gangster Disciples, from what I understand, hadn’t had a homosexual under them in a while. So that’s why I was automatically, like, given to them.” According to court papers and [Johnson’s] own detailed account, the Gangster Disciples and then other gangs treated Mr. Johnson as a sex slave. They bought and sold him, and they rented him out. Some acts cost $5, others $10… “I was forced into oral and anal sex on a daily basis… Not for a month or two. For, like, 18 months.”433 T.J. Parsell, now board chair of the Los Angeles-based national advocacy group Stop Prisoner Rape, was sentenced to prison in Michigan at age 17 for armed robbery. His first day in jail, Parsell was drugged and gang raped. “When they were done, they flipped a coin to see which one I belonged to,” Parsell said.434 The situation can be far worse for transgender women in men’s prisons. Because they are pre-operative, such assignments place them far too often into a “virtual torture chamber of incessant sexual humiliation.”435 In women’s facilities, lesbians and other women who are seen as transgressing gender boundaries are often at heightened risk of sexual torture and other ill treatment. Actual or perceived sexual orientation was found to be one of four categories that make a female prisoner a more likely target for sexual abuse as well as a target for retaliation when she reports that abuse.436

RAPE IN PRISONS Prison rape has been called “America’s oldest, darkest, yet most open secret.”437 A 2000 study of prisoners in four Midwestern states found that approximately one in five male inmates reported being pressured or forced into sex while incarcerated. About one in 10 male inmates reported that they had been raped.438 Another study showed that in women’s prisons, rates of sexual coercion varied from 6 percent to as high as 27 percent.439 Twenty-six years ago, in a dissent to the case U.S. vs. Bailey in which he was joined by Justice William Brennan, Supreme Court Justice Harry Blackmun wrote: The complaints that this Court, and every other American appellate court, receives almost daily from prisoners about conditions of incarceration, about filth, about homosexual rape, and about brutality are not always the mouthings of the purely malcontent… The atrocities and inhuman conditions of prison life in America are

432 Man, C. C. J. (2001). Forecasting sexual abuse in prisons: The prison subculture of masculinity as a backdrop for “deliberate indiffer- ence.”. Journal of Criminal Law and Criminology. p.153. 433 Liptak, A. (2004, October 16). Ex-inmate’s suit offers view into sexual slavery in prisons. New York Times. p.A1. Cited in Ries, D. (2006). Duty-to-protect claims made by inmates after the prison rape elimination act. Journal of Law & Policy, 13(2). pp.915-916. 434 Curtis, K. (2006, January 17). Disputed study: Prison rape, sexual assault rare. Associated Press. Retrieved September 15, 2006, from http://www.msnbc.msn.com/id/10896343/ 435 Rosenblum, D. (2000). “Trapped” in Sing Sing: Transgendered prisoners caught in the gender binarism. Michigan Journal of Gender Law, 6. p.517. 436 Curtin, M. (2002). 437 Man, C. C. J. (2001). pp.127-128. 438 Struckman-Johnson, C. & Struckman-Johnson, D. (2000). Sexual coercion rates in seven midwestern prisons for men. The Prison Journal, 80(4). p.379. 439 Struckman-Johnson, C. & Struckman-Johnson, D. (2002). Sexual coercion reported by women in three midwestern prisons. Journal of Sex Research, 39(3). LGBT Youth 74 Homelessness almost unbelievable; surely they are nothing less than shocking. A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim.440 According to the Prison Rape Elimination Act, “experts have conservatively estimated that at least 13 percent of the inmates in the United States have been sexually assaulted in prison.”441 The conservative National Review reports that this figure, equivalent to 12,000 rapes, represents more rapes than are reported annually against women in New York City, Los Angeles, Philadelphia, Experts have Boston, San Diego and Phoenix combined.442 According to Olga conservatively estimated Giller, editor-in-chief of the Cardozo Women’s Law Journal, “[I]t that at least 13 percent is widely believed that sexual harassment such as intimidation, of the inmates in propositions, extortion, assault and rape runs rampant in the prison the United States system.” She cites a number of studies to back up her claim.443 have been sexually A 1982 Federal Bureau of Prisons study reported that 9 to 20 percent assaulted in prison. of federal inmates, especially new or homosexual inmates, were victims of rape. The study also reported that 30 percent of federal prison inmates engaged in homosexual activity while incarcerated.444 Stop Prisoner Rape was contacted by 507 survivors of prison rape from 2002 through January 23, 2006. Most of these contacts take the form of letters from prisoners. Of these 507 self-reported survivors of prison rape, • 413 are men (81.5 percent) • 63 are woman (12.5 percent) • 26 are transgender (6 percent) • 98 (19 percent) identified as gay, lesbian, bisexual or transgender.445 Human Rights Watch has reported a number of characteristics which can make prisoners more likely to be raped: These include youth, small size, and physical weakness; being white, gay, or a first offender; possessing “feminine” characteristics such as long hair or a high voice; being unassertive, unaggressive, shy, intellectual, not street-smart, or “passive;” or having been convicted of a sexual offense against a minor… prisoners with several overlapping characteristics are much more likely than other inmates to be targeted for abuse.446 Giller notes that “[r]ace and sexuality intersect at the heart of prison rape.” An anonymous ex-prisoner painfully recounted the role that race played in his sexual assault, “[s]ince I’m light skinned the first dudes that raped me were blacks who

440 United States vs. Bailey, 444 U.S. 394 (1980). Dissenting opinion of Mr. Justice Blackmun, joined by Mr. Justice Brennan. Retrieved January 20, 2006, from http://www.healylaw.com/cases/bailey1.htm 441 The Prison Rape Elimination Act. (2005). 42 U.S.C. 15601(2). 442 Lehrer, E. (2003). A blind eye, still turned: Getting serious about prison rape. National Review, 55(10). 443 Giller, O. (2004). Patriarchy on lockdown: Deliberate indifference and male prison rape. Cardozo Women’s Law Journal, (10). 444 Nacci, P. & Kane, T. (1983). Sex and sexual aggression in federal prisons. Washington, D.C.: Federal Bureau of Prisons. Cited in Kantor, E. (2003). HIV transmission and prevention in prison. HIV InSite Center for HIV Information at the University of California San Francisco. Retrieved September 14, 2006, from http://hivinsite.ucsf.edu/InSite?page=kb-07-04-13#s14X 445 Personal communication between Sean Cahill, Director of the National Gay and Lesbian Task Force Policy Institute, and Kathy Hall- Martinez, Executive Director, Stop Prisoner Rape, January 24, 2006. Critical issues affecting LGBT youth 75 thought I was white. After word got out that I was black, they left me alone but then the whites took me off. After that I was a “black” punk and passed on to whites.447 What makes things harder is that prison officials are often unaware of the extent of the problem in their own facilities, either not understanding or not acknowledging the extent of prison sexual abuse: Prison authorities, unsurprisingly, generally claim that prisoner-on-prisoner sexual abuse is an exceptional occurrence rather than a systemic problem. Prison officials in New Mexico, for example, responding to our 1997 request for information regarding “the ‘problem’ of male inmate-on- inmate rape and sexual abuse,” said that they had “no recorded When prisoners known incidents over the past few years.” The Nebraska Department of to be gay or transgender Correctional Services informed Human Rights Watch that such report prison rape, they 448 incidents were “minimal.” are often told that they This official ignorance of the issue is just one of the barriers facing enjoyed the act and victims of prison rape. Many of those subjected to such abuse are that it was consensual. reluctant to report their experiences, fearing retaliation by both prisoners and staff and having justifiably little faith in receiving the appropriate relief. When instances are reported or claims filed, victims are frequently subjected to further abuse, ignored, or told that the incident was their fault or that they deserved what happened to them. Those who report rapes are often not believed or told that they consented. They are often accused of being gay and “wanting it.”449 When prisoners known to be gay or transgender report prison rape, they are often told that they enjoyed the act and that it was consensual. Others have reported that if they do not have physical evidence of an attack (e.g., wounds or scratches), prison authorities do not believe their claims and consider them unsubstantiated. Prisoners who report rape are not protected from other inmates, who may retaliate against the prisoner for being a “snitch.”450,451 Additionally, perpetrators have little need to fear punishment for their offense because punishment is rare.452 Human Rights Watch documented a wide range of physical effects of prison rape that depend on whether it was accompanied by a violent attack (beating, etc.), whether there was anal penetration, and whether a lubricant was used: Prisoners with whom Human Rights Watch is in contact have suffered rape-related injuries ranging from broken bones to lost teeth to concussions to bloody gashes requiring dozens of stitches. A few, like former Texas inmate Randy Payne, were killed during sexual assaults.453

446 Mariner, J. (1999). p.5. 447 Anonymous (2001). The story of a black punk. In Sabo, D. e. al., Prison masculinities. Philadelphia: Temple University Press. cited in Giller, O. (2004). 448 Mariner, J. (1999). p.4. 449 Letter to Human Rights Watch from J.G., Florida, September 4, 1996. Mariner (2001). 450 Lee, A. L. (2003). Nowhere to go but out: The collision between transgender and gender-variant prisoners and the gender binary in America’s prisons. Unpublished work. 451 Roderick Keith Johnson, v. Gary Johnson, 385 F.3d 503, 512 (5th Cir. 2004). 452 Mariner, J. (1999). p.151. 453 Ibid. pp.110-111. LGBT Youth 76 Homelessness Survivors of rape in prison often leave prison in a state of “extreme psychological stress, a condition identified as rape trauma syndrome.”454 Other conditions often brought on by the experience of prison rape include low self-esteem, shame, depression, nightmares, self-hatred, suicidality, uncontrollable anger, and violence.455 In fact, the psychological problems caused by A prison rape can impose being raped while in prison likely play a major role in ex-prisoners’ an “unadjudicated frequent difficulties reintegrating into society upon release, a major death sentence” factor in high recidivism rates. because of the risk of Prison rape also exposes victims to serious risk of life-threatening contracting HIV/AIDS. disease. A prison rape can impose an “unadjudicated death sentence” because of the risk of contracting HIV/AIDS.456 Inmates confined in state and federal prisons have AIDS at 5 times (0.5 percent) and HIV at 4 times (2.3 percent to 2.98 percent) that of the U.S. population. Syphilis has been found among 2.6 to 4.3 percent of all prisoners, while rates of hepatitis C infection are even higher with 17 percent to 18.6 percent of all prisoners infected.457 Approximately 25 percent of the United States population living with HIV passes through the correctional system annually.458 In New York, prisons held about one quarter of all inmates known to be HIV positive as of the end of 2000.459 And of course, without official access to latex barriers, prisoners use ineffective makeshift devices, such as rubber gloves and used plastic wrap, in attempts to practice safer sex.460 This discussion about the realities of life in prison for LGBT people is graphic, but necessary because the consequences of unfair treatment and lack of accountability are so serious. This research did not focus on youth specifically, but it is clear what the consequences are for a young LGBT person if their life on the streets ultimately leads them to the juvenile justice system and prisons.

LGBT YOUTH IN THE JUVENILE JUSTICE SYSTEM There is a paucity of research that can authoritatively speak to the experience of LGBT youth, homeless or otherwise, within the juvenile justice system. In part this is because of the sorts of consequences for inmates openly identifying as LGBT that we reviewed earlier. However, a lack of academic attention to the issue is also a contributing factor. While there is evidence that gay and bisexual male youth are at higher risk of being in trouble with the law than their heterosexual peers, such studies do not address homeless- ness specifically.461,462 One recent study suggested that increased use of drugs by LGB youth, combined with

454 Ibid. p.112. 455 Ibid. 456 Mariner, J. (1999). Cited in Robertson, J. (2003). Rape among incarcerated men: Sex, coercion and STDs. AIDS Patient Care and STDs, 17(8). 457 Cited in Robertson, J. (2003). 458 Spaulding, A., Stephenson, B., Macalino, G., Ruby, W., Clark, J. & Flanigan, I. (2002). Human immunodeficiency virus in correc- tional facilities: A Review. Clinical Infectious Diseases, 35. Cited in Braithwalte, R. L. & Arriola, K. R. J. (2003). Male Prisoners and HIV prevention: A call for action ignored. American Journal of Public Health, 93(5). 459 Marushak, L. (2006, October). HIV in prisons, 2000. Washington, DC: U.S. Department of Justice, Office of Justice Programs. 460 Mahon, N. (1996). New York inmates’ HIV risk behaviors: The implications for prevention policy and programs. American Journal of Public Health, 86(9). 461 Remafedi, G. (1987). Adolescent homosexuality: Psychosocial and medical implications. Pediatrics, 79(3). 462 Rosario, M. et. al. (1997). Critical issues affecting LGBT youth 77 family and school problems, leads to an increased probability of involvement with the system,463 just as the circumstances of being homeless and living on the streets increase the odds of committing a criminal act. One exploratory study of non-homeless lesbian and bisexual girls in the juvenile justice system does shed light on the experiences of this population. The sample size was only six, necessitating a purely qualitative methodology. This research confirmed some factors that led to an increased probability of involve- ment with the system, and found a series of problems related to care Lesbian and bisexual while in the system.464 For example, lesbian and bisexual women women reported being reported being overrepresented in the juvenile justice population, overrepresented in though as the author points out, this overrepresentation “is coupled the juvenile justice 465 with a probable overrepresentation of violent homophobes.” population, where they All six subjects confirmed that they had experienced a variety of meet with “a probable kinds of mistreatment while incarcerated. The motivating factor for overrepresentation of a number of them was clearly their sexual orientation. For example, violent homophobes.” different punishments existed for infractions of sexual behavior rules: a girl’s sentence would be extended by three months if she had sexual contact with a boy, but by six months if that contact was with another girl. Staff members were often openly hostile and homophobic and would not step in to eradicate harassment being perpetrated by other inmates. Rather than deal with issues of harassment and rape among youth at a facility, the staff are most likely to place LGBT youth in isolation.466 Lesbian and bisexual girls are not the only ones who face unfair treatment within the juvenile justice system. Gay male youth are often emotionally, physically and sexually assaulted by the staff and other inmates. One young gay male explained how the staff at his facility ignored and remained ignorant to the abuse he “The staff think that suffered: “The staff think that if a youth is gay, they want to have sex if a youth is gay, they with all of the other boys, so they did not protect me from unwanted want to have sex with sexual advances.”467 Though all LGBT inmates are more likely than all of the other boys, their non-LGBT peers to be raped in prison, “transgender youth and so they did not protect adults are particularly vulnerable to sexual abuse, harassment, and me from unwanted forced nudity in correctional facilities,” according to Jody Marksamer, sexual advances.” an attorney with the National Center for Lesbian Rights.468 Fortunately, positive progress is being made to address this tragedy. In February 2006, an 18-year-old lesbian, a 17-year-old transgender female, and an 18- year-old male perceived to be gay filed a lawsuit against the state of Hawaii for abuses suffered in a state facility.469 The three teens worked with the ACLU to force the state to

463 Schaffner, L. (1998). Female juvenile delinquency: Sexual solutions, gender bias and juvenile justice. Hastings Women’s Law Journal, 9(1). 464 Curtin, M. (2002a). 465 Ibid. p.288. 466 Ibid. 467 Estrada, R. & Marksamer, J. (2006). 468 National Center for Lesbian Rights. (2005, August 15). In historic first, advocates for LGBT prisoners address National Prison Rape Elimination Commission. Author. Retrieved September 25, 2006, from http://www.nclrights.org/releases/pr-prison_release_081905.htm 469 Magin, J. L. (2006, February 13). Hawaii agrees to broad changes in procedures for incarcerated gay youths. New York Times. p.A.16. LGBT Youth 78 Homelessness wake up to the real problems LGBT youth face in the juvenile justice system. The state of Hawaii will now be accountable for more than a dozen requests, including staff protection from physical and sexual abuse, regardless of perceived or actual gender identity, sexual orientation or sex.470 Even with all the challenges they face, many LGBT youth who experience homelessness ultimately do more than survive; they thrive. In this next section we discuss the remark- able resilience of LGBT youth who experience homelessness.

RESILIENCY Many advocates, social service professionals and researchers who work with homeless youth, particularly LGBT youth, are concerned that the resilience of these young people in the face of multiple challenges is too easily ignored.471 Demonstrating that these young people are not lost causes might be just one part of the argument for increasing funding for support services. The research we have summarized on risky sexual behavior, drug and alcohol use and addiction, and mental health crises, as well as levels of victimization and involvement with the criminal justice, should not be used to further pathologize LGBT youth. Rather, research supports a clear need for policies and programs that can change the difficult and oftentimes dangerous context within which homeless youth are forced to live their lives, regardless of their sexual orientation. For example, in their study of five formerly homeless young women of non-specified sexual orientation, Nancy Williams and colleagues identify a number of common characteristics among “resilient, emerging” youth. First, determination to survive and thrive helped them build self-confidence, adopting an “‘I’ll show you’ attitude.”472 In turn, this awareness of strength and success further inflamed their personal determination to overcome the challenges they faced. Developing a sense of meaning and purpose in life, including an awareness of one’s place among others, was another crucial characteristic, along with a sense of spirituality (though not necessarily religiosity) and a desire to help others similarly situated. We see this kind of attitude to some degree or another in a number of homeless LGBT youth who have escaped the streets and dedicated themselves to helping others who faced the same problems. Ali Forney in New York City, whose story we shared in the introduction, is an obvious example. Ali was dedicated to the safety of other homeless LGBT youth; he was a committed HIV prevention worker and aggressively advocated that the NYPD investigate a series of murders of the homeless LGBT youth he had befriended.473 The program named after him continues his legacy of outreach and support. The final two criteria highlighted in Williams’ research, “caring for self” and “accepting

470 Ibid. 471 For more information see Savin-Williams, R. C. (2005). The new gay teenager. Cambridge, MA.: Harvard University Press. 472 Williams, N. R., Lindsey, E. W., Kurtz, P. D. & Jarvis, S. (2001). From trauma to resiliency: Lessons from former runaway and homeless youth. Journal of Youth Studies, 4(2). p.242. 473 Ali Forney Center. (2006). About Ali Forney. Author. Retrieved September 1, 2006, from http://www.aliforneycenter.org/about.html Critical issues affecting LGBT youth 79 help from others,” require interesting philosophical changes on the part of many home- less youth. After being so downtrodden, the ability to view oneself positively and to constructively plan for one’s future is important. Knowing that this can legitimately entail accepting help without sacrificing independence is also crucial. Specifically, Williams et al. found that this entailed developing a relationship based on trust with the giver of help and knowing that the person and their help are of the necessary quality. This point was buttressed by youth in one Canadian study whose “feelings of comfort, safety and trust of staff with whom they Across the country, had interacted at different service providers” was shows to be critical regardless of their 474 to their capacity to successfully move forward. terrible circumstances, The implications of these findings are clear. If efforts to cut care homeless LGBT programs can be reversed and funds found to ease the burden on youth are knuckling overworked and underresourced professional staff, then it is possible down to the task of to bolster the already great potential among most homeless young improving their lives. people and to optimize their success as independent adults. “Street competencies” may also be thought of as a kind of resilience among homeless youth. It is a way of adapting to the hardships they encounter on the streets. Approaches to foster safer ways of engaging in risky survival behaviors include finding shelter, “exchanging sex in a safe manner, avoiding arrest, building relationships with clients, and securing untainted drugs and paraphernalia.” These represent competencies that are connected with resilience in homeless youth.475 Other work that has been done to increase our understanding of homeless youth has dwelt on less positive aspects of the problem. For example, Whitbeck and Hoyt’s analysis of young people’s routes into homelessness noted in particular a degree of precocious independence. The authors were criticized for ignoring more positive data on resiliency. Their data, for example, show that despite all the negativity around them, most homeless youth managed to avoid many of the worst pitfalls of their contemporaries. They did not drop out of school. They did not sink into drug addiction or other destructive behaviors.476 Regardless of their circumstances, studies show that many homeless LGBT youth are working to improve their lives. In their work on homeless youth in two Canadian cities, one large and one small, Miller et al. confirm that while their subjects found life on the street tough, “it was preferable to the life they had left. They all believed that their homelessness was temporary and that they had the capacity to change their situations in time.”477 As one homeless young person put it: What I do is set daily goals. Just minor things that I want to accomplish that day. I set about ten major goals for the year and then I have a blueprint, an outline, for five years or ten years down the road of where I want to be.478 A study published in 2000 by Lindsey et al. highlighted some of the personal strengths that enable homeless youth to make successful transitions into adulthood and lower-risk

474 Miller, P. et. al. (2004). p.743. 475 Lankenau, S. E. et. al. (2005). p.17. 476 Les, B. W. & Dan, R.H. (1999). Nowhere to grow: Homeless and runaway adolescents and their families. Hawthorne, NY: Aldine de Gruyter. 477 Miller, P. et. al. (2004). p.740. 478 Ibid. p.746. LGBT Youth 80 Homelessness environments.479 These included learning new attitudes and behaviors, learning about themselves, learning about being in relationships with others, learning from experience, vicarious learning, possessing certain personal attributes and embracing spirituality to help them cope.480 The researchers suggest that early intervention programs should foster these kinds of learning in an individualized manner, keeping in mind that youth learn at different paces.481 As Gerald Mallon, a noted expert in the field of LGBT child welfare issues, has explained, most LGBT youth are well-adjusted and resilient. This is a point we must not forget and must also use as a foundational truth on which to help build a better future.482 Having laid out the multitude of challenges that stand between homeless LGBT youth and a healthy adulthood, we now consider whether and how the shelter system in the United States is helping them overcome these challenges. First we review research on the existing shelter system and highlight some of the complications of providing adequate care to LGBT homeless youth. Afterwards, we provide examples of five agencies that are doing a good job of helping our community’s homeless youth to thrive.

LGBT HOMELESS YOUTH PROFILE: CUPID

Cupid is a 21-year-old Hispanic lesbian. A New foster homes spilled over into her life at school. York native, she has been living at the Sylvia’s “I was always getting into fights at school. I was Place LGBT youth shelter in Manhattan for always in the dean’s office,” Cupid says. This six months. She has been in and out of foster eventually led to her placements in residential homes since she was four years old and spent treatment facilities. her teenage years in and out of the juvenile justice system. “I ran away from a lot of those When she was 16, Cupid was sent to her first [foster homes], especially the ones who hit me,” residential treatment facility, a group home in she explains. “They hit hard. These were old- upstate New York where she met her first seri- fashioned ass-whoopins.” ous girlfriend. Cupid appreciated the fact that the staff there were not homophobic; indeed, She is one of many LGBT youth who have a good number were lesbians. However, after been kicked out of their homes because of their leaving the group home and spending some sexual orientation. When Cupid was 16, her time living on the streets, Cupid encountered then-foster mother caught her having sex with anti-gay staff at a different shelter. She spent her girlfriend. “She went ballistic, yelled and five months at the infamously intolerant youth kicked me out,” Cupid says, explaining that the shelter Covenant House in New York City. “All woman was a devout Catholic and could not the bad stories you’ve heard about Covenant handle Cupid’s lesbian identity. House are true,” she asserts, explaining she had to leave the shelter because the director The chaotic, abusive environments of Cupid’s was “homophobic.”

479 Lindsey, E. W., Kurtz, P. D., Jarvis, S., Williams, N. R. & Nackerud, L. (2000). How runaway and homeless youth navigate troubled waters: Personal strengths and resources. Child and Adolescent Social Work Journal, 17(2). 480 Lindsey, E. W. et. al. (2000). p.131. 481 Lindsey, E. W. et. al. (2000). p.139. 482 Cited in Curtin, M. (2002c). Lesbian and bisexual girls in the juvenile justice system. Child and Adolescent Social Work Journal, 19(4). Critical issues affecting LGBT youth 81 An acquaintance introduced Cupid to Sylvia’s Like so many homeless LGBT youth, Cupid Place, where the staff have helped her begin to remains hopeful for her future. She plans to gain independence. “I like that we have food, have enough money saved to move out of the we have some type of security, and we have shelter this fall and rent an apartment with her resources, like help getting documents [e.g., girlfriend, D, whom she met at Sylvia’s Place. birth certificates] that you’d need,” she says. She and D are planning on getting married this The staff has helped her secure a MetroCard spring and starting a family after Cupid finishes so she can travel to and from her job as a home her paralegal studies degree: “It’s the closest to health aide, and a stipend for books when she being a lawyer I’m going to get right now. I want begins her paralegal studies courses this winter. to be a lawyer one day.”

LGBT Youth 82 Homelessness Experiences of homeless LGBT youth in the shelter system

There is no single example that can speak to the variety of experiences that LGBT youth have in shelters across the country.483 However, research has shown that homophobia and heterosexism are alive and well in a variety of systems of care, including school, health care, mental health and child welfare systems.484 For example, Gerald Mallon has found that a constant threat of anti-LGBT harassment 485 and violence exists in the foster care system. In surveys of those The director of one state’s involved with the child welfare system, Mallon also found that 78 Human Services agency percent of young clients and 88 percent of professional staff agreed “readily admitted that that group homes were not safe for LGBT youth.486 the residential service There is evidence that while state welfare agencies are reasonably providers in the state, aware of the problem, they are not doing enough to change it. In which are all nonprofits, one state, an executive director of an agency working with homeless do not do well with LGBT youth confirmed that the director of the Department of LGBT youth. Straight Human Services for the state: up told me that.” …readily admitted that the residential service providers in the —Executive Director of state, which are all nonprofits, do not do well with LGBT youth. an agency working with Straight up told me that. And I almost fell out of my shoes, homeless LGBT youth because rarely will you have, if ever… a state administrator at that level… tell you, “We don’t do well with your kids.”487 Mallon also found that some residential service providers deny access to LGBT youth because of homophobic attitudes while claiming that they are doing so because they want to protect LGBT youth from harm in their facility.488 Youth involved with the Ruth Ellis Center in Detroit have reported numerous examples of anti-LGBT harassment and violence in area shelters. For example, transgender youth

483 When we talk about shelters here, we mean group home facilities, emergency shelter spaces, and medium to long-term transitional living programs. 484 Curtin, M. (2002b). Lesbian and bisexual girls in the juvenile justice system. Child and Adolescent Social Work Journal, 19(4). p.287. 485 Mallon, G. P. (1997). 486 Mallon, G. P., Aledort, N. & Ferrera, M. (2002). There’s no place like home: Achieving safety, permanency, and well-being for lesbian and gay adolescents in out-of-home care settings. Child Welfare, 81(2). 487 Personal communication with the author, November 2005. 488 Mallon, G. P. (1992). Gay and no place to go: Assessing the needs of gay and lesbian adolescents in out-of-home care settings. Child Welfare, 71(6). 83 have no place in shelters in the area. They are forced to dress as their birth-assigned gender or are denied admission. Gay and lesbian youth are verbally abused and made to feel unsafe even to the point of being battered in the shelters. Youth report that staff are of little help and sometimes even create problems for them by treating them differently or ignoring them. In most cases, youth often decide for safety’s sake to deny their sexual orientation or gender identity while in “the system” and therefore do not get the help they need. Two examples noted by Ozone House in Michigan make clear that securing a license to house youth does not automatically ensure that a needy LGBT young person will be safe. At one Michigan residential placement facility, LGBT teens, or those suspected of being LGBT, were forced to wear orange jumpsuits to alert staff and other residents. At another facility, staff removed the bedroom door of an out gay youth, supposedly to ward off any homosexual behavior. The second bed in the room was left empty, with other residents warned that if they misbehaved they would have to share the room with the “gay kid.”489 LGBT homeless youth at the Home for Little Wanderers in Massachusetts have reported being kicked out of other agencies when they revealed their sexual orientation or gender identity. Many also said that the risks inherent to living in a space that was not protecting them made them think that they were better off having unsafe sex and contracting HIV because they would then be eligible for specific housing funds reserved for HIV-positive homeless people in need.490 These examples highlight that once they choose to go to a shelter, LGBT youth face a dilemma; openness about their sexual orientation risks potential misunderstanding, abuse and rejection. Those who choose to remain silent reveal less than their helpers need to know to best meet their needs. For example: Tanisha was not new to social service agencies. She had relied on shelters to provide a bed, churches to access food, and job training programs to help her obtain a job. Despite her relationships with these agencies, she knows she has to be careful. If they find out that she is lesbian, they may turn her away. They always ask her if she has a boyfriend and she feels she has to lie to receive services. Some of the help they try to give her is not a good fit, but since they don’t know her situation completely it is not surprising when they don’t meet her needs.491 At Ungar House, one of Green Chimneys’ programs in New York City, the picture is not as bleak. One of a number of programs established to work specifically with LGBT homeless youth, Ungar House ensures that every youth receives the love and encourage- ment they need. One young client of theirs, Teisha Dixon, noted that the staff there have “helped her feel good about her emerging identity.”492 In Denver, Urban Peak493 developed the Starting Transitions and Recovery (STAR) program. This program identifies hard drug users and accelerates the process through which they can be removed from the street and placed into an apartment with appropriate

489 Both examples were confirmed in personal conversations between the author and social service agency staff who had worked at the offending agencies, or had worked with youth who had resided at those agencies. 490 As confirmed by Colby Berger, LGBT training manager at Waltham House. 491 Personal written communication between the author and Grace McClelland, executive director of the Ruth Ellis Center. 492 Rojas, M. (2005, December 11). Green chimneys in NYC helping lesbian, gay, bisexual, and transgender youths. The Journal News. 493 For more information, see www.urbanpeak.org. Urban Peak works with all youth regardless of sexual orientation or gender identity. LGBT Youth 84 Homelessness care and rehabilitation services in place. The idea emerged after a survey of the young homeless population in Denver showed that there was a serious drug problem among homeless youth. The agency did more research and wrote a grant that secured them $500,000 to set up the program. With random drug testing and a “zero tolerance” policy for those who tested positive, the program was not for the uncommitted. However, the motivation of the homeless youth who qualify for the program is great; so far 30 have successfully completed the program and remain sober.494 Alex Montgomery, one survivor of the streets of Denver, spent time in jail for credit card fraud, was in and out of various drug treatment and mental health facilities, and stole money to secure his next cocaine fix. This program more than likely saved his life, getting him off drugs, into safe housing and reconnected with his family: “Last week, my Mom let me stay at her house for three days… that was real nice.”495 Others who have been failed by the formal foster care system but do not want to return to the insecurity of the streets are sometimes forced to find novel programs that may provide the combination of structure they need and independence they desire. In Minneapolis, Project Off-Street, a center for homeless youth, saw a need for LGBT-specific support but had no funds to develop a formal foster care/shelter program. So, working with 18-to-21- year-olds—legal adults, therefore not under the authority of the child welfare system—they began a “host home” program where LGBT individuals could volunteer to host an LGBT youth in their own home. “This was a very cost-effective way of looking at a problem,” said Raquel Simoes, then program coordinator.496 Though the program is not currently running, Kelly Brazil, Project Off-Street’s current LGBT coordinator, confirmed that the agency does hope to reestablish it. And in Los Angeles, GLASS-LA, the oldest LGBT social service agency in the country, is dedicated to “fully utilizing the vast resources of the adult LGBT community by recruiting, screening, training and supervising foster parents and mentors who provide both short and long-term care to children of all ages.”497

FAITH-BASED PROGRAMS While there are some agencies and programs that are supportive and nurturing of LGBT homeless youth, there are still some service providers who are not working appropriately with this population and/or are unmotivated to do so. The rise of faith-based program- ming and funding highlighted earlier in this report may be one contributing factor to this problem. The increased proportion of funds going to faith-based organizations has the potential to leave the neediest people nowhere to turn but their services. Conversely, it is possible that LGBT clients might put off seeking help if they believe that their only option is a potentially anti-LGBT service provider.

494 Rolnick, J. (2004). Need to know: Guerilla marketing surveys power Urban Peak. Stanford Social Innovation Review. 495 Sanchez, R. (2005, May 31). Survey gives snapshot of street kids. Denver Post. p.A1. 496 Urrutia, P. (2000). Program seeks to assist homeless gay youth. The Circle: News from an American Indian Perspective, 21(4). 497 Gay and Lesbian Adolescent Social Services. (2005). Mission statement. Author. Retrieved September 1, 2006, from http://www. glassla.org/mission.html Experiences in the shelter system 85 In their survey of homeless people’s access to services, Heslin et al. indicated that the most vulnerable among those experiencing homelessness, those individuals who had had serious problems finding any food and/or shelter in the previous 30 days, were almost twice as likely to use faith-based services as the rest of the respondents in the study.498 The study also found that the 98 lesbian and bisexual women in the total sample of 994 were only 60 percent as likely as heterosexual women to use faith-based services, indicating that religious organizations are not receptive places for LGBT people in need.499 Additionally, faith-based programs tend not to offer mental health services as readily (9 percent of the time) as secular programs (22 percent).500 This is clearly a critical issue given the research we summarized earlier in this publication indicating that LGBT homeless youth have higher incidence of mental health issues. In this section we summarize a number of instances in which anti-LGBT religious beliefs may be impacting the manner in which social service agencies work with their LGBT clients. Covenant House was founded in 1969 in New York City when a Franciscan priest offered shelter to half a dozen runaways in his Lower East Side apartment. The agency was formally incorporated in 1972 and has since expanded to become the largest privately funded child care agency in the United States, providing shelter and support services to homeless and runaway youth. Service has also been extended to Canada, Honduras, Mexico, Nicaragua and Guatemala.501 The organization’s mission is “to serve the suffering children of the street, and to protect and safeguard all children… with absolute respect and unconditional love.”502 Covenant House describes its hallmark as an “open intake” policy; no child or teenager is turned away on the first visit. All are accepted on a “no questions asked” basis, and only inappropriate behavior or refusal to “What we see is a utilize appropriate services will lead to restrictions on access. pattern of homophobia However, at the Covenant House in Houston, Texas, Chanel, a at Covenant House, male-to-female transgender homeless youth, was told that she could both on the part of not wear a wig or fingernail polish. When a national spokesman other residents and on was asked to comment on the discriminatory practices in Houston, the part of the staff.” Richard Hirsh commented that “some shelters tried to accommo- —Kate Barnhart, a date transgenders in separate quarters. But Houston… had limited program manager 503 experience with such a ‘difficult issue.’” at Sylvia’s Place In all of New York City, there are few transitional living beds consid- ering the number of homeless youth, with only 179 beds for males, 189 beds for unaccompanied young women and 65 beds for teen mothers and their children. Covenant House provides 36 percent, 51 percent and 65 percent of these beds respectively.504

498 Heslin, K. C., Andersen, R. M. & Gelberg, L. (2003). Use of faith-based social service providers in a representative sample of urban homeless women. Journal of Urban Health, 80(3). p.378. 499 Ibid. 500 Ibid. p.380. 501 Covenant House New York. (2006). About us: Our history. Author. Retrieved August 31, 2006, from http://www.covenanthouseny. org/about_us_our_history.asp 502 Covenant House. (2005). The Covenant House mission. Author. Retrieved August 31, 2006, from http://www.covenanthouse.org/ about_mission.html 503 Hung, M. (2000). A diva in the making. Houston Press. Retrieved September 10, 2006, from http://www.houstonpress.com/ Issues/2000-11-16/news/feature2.html 504 Covenant House New York. (2006). LGBT Youth 86 Homelessness Including emergency beds, more than 60 percent of all beds for homeless youth in New York City are provided by Covenant House.505 Kate Barnhart, a program manager at Sylvia’s Place, told the Village Voice that her experience with the agency is reflective of others working in the city, “What we see is a pattern of homophobia at Covenant House, both on the part of other residents and on the part of the staff… we see staff members behaving in ways that are directly homophobic themselves, and we see staff members failing to intervene to stop homophobia among the other residents.”506 In 2000, Rebecca Walton, then a transgender 18-year-old, arrived at Covenant House only to be met by a staff psychologist who refused to call her by her chosen name. A job counselor also mocked her feminine appearance.507 The Village Voice also reported the experience of another transgender homeless youth at Covenant House: Sadaisha Shimmers, who is transgender, says she spent a month in Covenant House about six months ago. Things went well at first—staff allowed her to live on a female floor, and when slurs and threats began, they moved her to a different room. But the threats continued, Shimmers says, and when a staff member joined in, Shimmers vowed to file a grievance. The staff member then discharged her for making a threat, Shimmers claims.508 Another transgender youth noted that “[t]rouble began immediately [at Covenant House in New York]. After her intake session, she was placed with the male clients despite her request to room with women. At her psychological evaluation, the psychologist who examined her suggested she stop dressing as a woman.”509 Eric Hartman, a former social work intern at Covenant House noted that Covenant House is “understaffed,” with “inconsistent” policies and “no clear proto- cols….” One Covenant House psychiatrist told gay clients that their homosexuality was the root of their problems and they should simply stop being gay. Hartman took to sending gay clients to the emergency room at St. Vincent’s Hospital for their psychiatric evaluation instead.510 Despite these reported incidents, New York City initially did nothing to allocate funds to provide safe spaces specifically for LGBT youth. According to Carl Siciliano, executive director of the Ali Forney Center, It’s estimated that 20 to 40 percent of homeless kids in New York are LGBT… but we are not getting 20 to 40 percent of the funds. We are not getting one percent. In my experience, I see that in mainstream shelters, half of the queer kids are abused.511 However, in 2006 the New York City Council allocated $1.2 million for LGBT-specific housing, funds that have been split among Green Chimneys, the Ali Forney Center and

505 Email communication between the author and the Empire State Coalition of Youth and Family Services. New York, NY. 506 Murphy, J. (2005). 507 Ibid. 508 Ibid. 509 Kaysen, R. (2005). LGBT youth are feeling left out in the cold by lack of funds. The Villager. Retrieved September 15, 2005, from http://www.thevillager.com/villager_104/lgbtyoutharefeeling.html 510 Ibid. 511 Schindler, P. (2003, December 4). Homelessness and hope. . Retrieved October 26, 2006, from http://gaycitynews. com/site/index.cfm?newsid=17004807&BRD=2729&PAG=461&dept_id=568864&rfi=8 Experiences in the shelter system 87 Sylvia’s Place. All three agencies are using the funds to expand the number of spaces they can offer, though the total number post-expansion will still be far short of what is needed. Covenant House is not the only agency where problems arise for LGBT homeless youth and staff.512 Kentucky Baptist Homes for Children (KBHC) is Kentucky’s largest provider of state- funded services to “at-risk” youth, with foster care, group home and counseling programs throughout the state for abused, neglect or abandoned youth or those who have been removed from their home for their own safety. According to their mission statement, Kentucky Baptist Homes for Children provides care and hope for hurting families and children through Christ-centered ministries. We are a Christian ministry that, through God’s direction and leadership, reaches out to children and families with Christ’s love and compassion. We are committed to presenting a clear message of Christian values. That… includes a safe work place, an appreciation of multicultural backgrounds, and a commitment to ethical integrity.513 The inhospitableness of the agency towards LGBT staff and clients became clear in 2000 when a “valued employee,” Alicia Pedreira, was fired because she is a lesbian. The initial problem was related to the imposition of specific religious values on staff. KBHC sent a clear message to any existing or future LGBT youth that they were not welcome at the agency. KBHC stated in defense of Padreira’s dismissal, “it is important that we stay true to our Christian values. Homosexuality is a lifestyle that would prohibit employment.”514,515 The imposition of religious rules or demands on staff is also evidenced in the case of the Salvation Army’s Social Services for Children (SSC) program. In March 2003, its director of human resources was instructed to collect religious affiliation information on all SSC staff and to provide the names of any homosexuals working at SSC. Employees were informed that to retain their jobs they would be required to sign a form confirming their agreement: • To not do anything to undermine the Salvation Army’s religious mission. • To teach the Gospel of Jesus Christ. • To declare all the churches they have attended in the last decade. • To authorize their pastors to reveal information from private communications. • To acknowledge that the Salvation Army is a branch of a Christian church.516 A number of social workers objected to this policy on, among others, the professional grounds that they would be unable to serve many needy youth, explicitly noting that:

512 Due to confidentiality issues and fears of reprisals, many former clients and advocates are concerned about sharing those stories publicly. 513 Kentucky Baptist Homes for Children. (2006). KBHC mission and values. Author. Retrieved August 31, 2006, from http://www.kbhc. org/our_mission.php 514 Press, E. (2001, April 1). Faith-based furor. New York Times Magazine. p.62. 515 Smith, R. (2001, July 27). Judge dismisses bias claim against KY agency. The Washington Blade. Padreira’s sexual orientation became public knowledge after a picture of her and her lover at an AIDS fundraiser was entered into the Kentucky State Fair. A federal judge ruled that the firing of Pedreira did not violate any laws or constitutional principles. Judge Charles R. Simpson III, Chief Judge of the U.S. District Court in Louisville, argued that “The civil rights statutes protect religious freedom, not personal lifestyle choices.” 516 Freedom from Religion Foundation. (2004, April). Freethought Today. Author. Retrieved August 31, 2006, from http://www.ffrf. org/fttoday/2004/april/?ft=statechurch LGBT Youth 88 Homelessness …the new religious requirements will require them to provide mandated, govern- ment-funded social services to children in a manner that conflicts with their legal and professional obligations. For example, the children assigned to receive foster care and other services from the Salvation Army include sexually-active teenagers who are at risk for HIV, sexually-transmitted infections and unintended pregnancy. However, the Salvation Army condemns, among other things, non-marital sexual relationships, contraceptive use Increased funding for outside of marriage, homosexuality, abortion, social drinking, faith-based organizations gambling, smoking and drug use as “unacceptable according to brings with it the the teachings of the scripture.” Consequently… their legal and very real threat that professional obligation to provide these teenagers with services religious bias will creep conflicts with the religious principles of the Salvation Army.517 into the treatment In response, Major Gary W. Miller of the Salvation Army said, “If you and management don’t sign the form, you decide you don’t want to work here.”518 philosophies of agencies The advent of increased funding for faith-based organizations brings charged with helping all with it the threat that religious bias will creep into the treatment and youth, including those management philosophies of an increasing proportion of agencies who identify as LGBT. around the country that are charged with helping all youth, including those who identify as LGBT. At the conclusion of this publication, we make a series of policy recommendations intended to directly address potential bias in staffing processes, as well as inadequacies in training and licensing policies.

CONCLUSION Despite the experiences highlighted in this section, there are agencies around the United States that serve LGBT youth admirably—LGBT-specific agencies as well as those where ensuring safety for all out-of-home youth is considered a genuine institutional priority. In the next section, we give space to senior staff of five such agencies to describe a portion of their work. Our hope is that by doing so, agencies who may not currently work with LGBT youth, do not realize that they work with LGBT youth, or wish to begin more specific outreach to the LGBT homeless youth population will see that there are programs across the country doing just such work. These programs work with all kinds of youth in all kinds of cities and the lessons they share have applications everywhere. Each author picked an area in which she felt her agency excelled, where the agency’s programs and practices might provide guidance to other social service professionals and agencies around the country who seek to provide top quality care to every youth who walks through their front door, regardless of sexual orientation or gender identity. The following pieces do not, and are not intended to, represent every aspect of the services provided to youth experiencing homelessness, nor to reflect every kind of agency that provides those services.

517 Ibid. 518 Freedom from Religion Foundation. (2004, April). Experiences in the shelter system 89 LGBT HOMELESS YOUTH PROFILE: SNOWY Snowy, 20, a self-identified bisexual white ing doesn’t mean anything to me now. Going female, is originally from Staten Island, New hungry? What’s hungry? Hungry takes, like, York. Though her family was not wealthy, she three days to come.” never imagined she would one day be home- less. She has spent the past year couch surfing, Her drug use landed her in the hospital, where sleeping in parks and crashing at shelters. Her she stayed for a month. “After they discharged former girlfriend discovered she had been sleep- me from the hospital, I knew I needed to get ing in the park on and off for more than six clean, but my parents wouldn’t take me back,” months and took her to Sylvia’s Place, a New Snowy says. She was back on the streets. York City shelter for LGBT youth, where she has been for two months. Though Snowy earned money selling drugs, she swore that she would not engage in survival sex: Like so many LGBT youth, Snowy didn’t real- “I might be homeless, I might be at the bottom ize how quickly negative situations can escalate of my barrel, but I’m sure there’s a quicker way into homelessness. “I never thought I’d be to make a dollar that will leave me much more on the street,” Snowy says. “I graduated high dignified than selling my body. I may not have school, I held down a job, I was in college. How much dignity now, but you know what, that did I go from there to here? Somebody please little pinky toe that’s hanging outside the water, tell me.” keeping me from drowning, I’m keeping that pinky toe above the water as long as possible.” When Snowy was 19, her husband, then 20 years old, lost his battle with cancer. After his death Since ending up at Sylvia’s Place, Snowy has she could no longer afford their apartment. A been able to take advantage of its medical natural caregiver, she had spent time nursing program, which has helped her get inhalers him through chemotherapy, as in the years to keep her asthma at bay. But she also experi- since she was eight she had helped her mother ences severe back pain caused by a car accident through a disabling accident. She tried to move a few years ago, and the ibuprofen the doctor back home with her parents, but it was a volatile, dispenses doesn’t help. stressful environment. “I couldn’t sleep at home, then I figured I might as well sleep where I know She is currently attending counseling sessions people,” she explained. “And I knew a lot of with her mother in hopes of moving back people who slept in the park.” home: “It’s almost the one year anniversary of my husband dying and I need an emotional So Snowy began sleeping in Manhattan’s public support. I need to be home.” Until then, parks, selling drugs and dealing with her pain Snowy will continue her lifelong role as a care- by self-medicating. “I did so many drugs that taker, always making sure to save a little of her I wasn’t really eating, especially when I was meals to keep in her bag in case she runs into doing coke,” she explains. “For three months someone who needs it, asking, “If the homeless straight, I had basically stopped eating. Not eat- can’t help the homeless, who can?”

LGBT Youth 90 Homelessness Ruth Ellis Center: Street Outreach Program and Drop-In Center BY GRACE MCCLELLAND, EXECUTIVE DIRECTOR Today, a young man living in the residential program at Ruth’s House went to school working towards his GED. Afterwards, Addam (not his real name) will go to a job he has held for over three months. Six months ago, he was on the street, scrambling just to find a place to stay for the night. Addam found Ruth’s House through Ruth Ellis Center’s Drop-In Center, the key program that coordinates outreach and contact with lesbian, gay, bisexual and transgender (LGBT) youth in need. Addam is one of many often referred to as “the invisible minority:” LGBT homeless youth. According to extrapolations from the City of Detroit Department of Senior Citizens and Homelessness Coordination, the estimated number of homeless youth not receiving shelter services in Detroit on any given day ranges from 1,600 to 2,000 youth.519 Incredibly, nearly 640 to 800 homeless LGBT youth are on the streets of Detroit every day. This reality makes the Ruth Ellis Center, the only LGBT-dedicated youth social service agency in the entire Midwest, so very desperately needed.

HISTORY AND BACKGROUND Each of the 15 adults who gathered in Detroit in 1999 to talk about the needs of homeless lesbian, gay, bisexual and transgender youth had been touched in some way by the problems faced by these young people living on the streets or trading sex for shelter: touched profes- sionally, personally or socially. The solution to their worries was the Ruth Ellis Center. The Ruth Ellis Center is named in honor of the life and work of Ruth Ellis, a treasured member of the Detroit LGBT community who died in 2000. Ruth was and remains respected not only for her longevity and endurance as Detroit’s oldest and proudest African-American lesbian but also for her years of service to people in need. As early as the 1930s and 1940s, Ruth was known to provide shelter, physical support and spiritual affirmation to those whose race, sexual orientation or both set them apart from the dominant culture. The work we do at the Ruth Ellis Center is built on her model of responsibility to oneself and one’s community. We take that model and apply it to the teens and young adults in our community.520

519 As confirmed in telephone and email communications with staff at the Ruth Ellis Center. 520 While the work Ruth Ellis did was originally focused on people whose sexual orientation set them apart, today the Ruth Ellis Center is completely trans-inclusive. 91 The mission of the Ruth Ellis Center is to provide short- and long-term residential safe space and support services for runaway, homeless and at-risk LGBT youth in Detroit and southeastern Michigan. The agency’s goals are to help youth between the ages of 12 and 24 who have been thrown away by their families because they are LGBT or questioning. The agency helps these youth directly with programs and services designed for homeless and street youth in crisis, and we are designing programs to help families before youth are forced to leave their homes. Our organization, which began in 1999 with a small start up grant from the Hope Fund of the Community Foundation of Southeastern Michigan, has grown rapidly in the intervening years. After starting with a street outreach program in 1999, our first drop-in center opened in September 2001. Two years later, construction began on Ruth’s House, our transitional living program (TLP), and in February 2004, Ruth’s House opened to its first residents. Only one month later we purchased a home to provide foster care to minors. A federal award in 2004 enabled us to develop our emergency shelter program, and this year we have bought, renovated and moved into a 10,000-square-foot space that now houses both the street outreach program and administrative staff. This space was renovated for and by our youth. Critical support has come from the McGregor Fund in Detroit, the Arcus Foundation in Kalamazoo and many smaller organizations, including Ford Globe, Visteon, Parents, Families and Friends of Lesbians and Gays (PFLAG) Detroit and affirming churches in the area. We also have a strong albeit small group of consistent individual donors. Given that some organizations and individuals are nervous about funding our pro-LGBT mission, these individual donors’ ongoing support ensures that we are able to continue operating.

CHARACTERISTICS OF OUR YOUTH Our youth are “young, black, gifted and gay,” as we like to say. Blessed with talents, energy, pride, intellect, unlimited love and Our youth are “young, an appreciation for those that truly care for them, they face many black, gifted and gay,” challenges but are remarkably resilient. as we like to say. Blessed with talents, energy, The link between abject poverty and lack of stable housing is all too clear, and given that the poverty rates for the immediate Detroit pride, intellect, unlimited area range from 20 percent to 38 percent of the population, the love and an appreciation risk for homelessness in our target service area is astounding. While for those that truly care no specific statistics are kept on the number of LGBT youth who for them, they face are runaway or homeless in Michigan, our experience reflects the many challenges but are research cited earlier in this report, which shows that the number remarkably resilient. of homeless LGBT youth is grossly disproportionate to the general population. Our population is severely oppressed, with issues of race, class, gender identity/expression and sexual orientation impacting their day-to-day existence. Ninety-nine percent of our youth are African-American, over 50 percent of our male population is HIV positive, and over 60 percent of our high-school-age population has dropped out of school due to bullying or discrimination. We provide for the unique needs of homeless and street-based LGBT youth by training affirming street outreach workers and creating a safe space where their sexual orientation and gender identity/expression are understood and accepted. In LGBT Youth 92 Homelessness turn, this frees our youth to concentrate on learning other critical life skills at the only LGBT homeless youth social service agency in We provide for the the entire Midwest. These skills include healthy coping mechanisms, unique needs of decision-making, and harm reduction techniques such as safer-sex homeless and street- practices, street smarts, self-defense and how to avoid trouble. based LGBT youth by training affirming street COLLABORATIONS outreach workers and The street outreach program maintains linkages and close working creating a safe space relationships with many organizations and individuals working where their sexual on both a local and national level, including the National Gay orientation is understood and Lesbian Task Force (the Task Force).521 Locally, the Michigan and accepted. Network for Youth and Families (MNYF),522 whose former executive director, Steve Pollack, was one of the original 15 adults behind the founding of the Ruth Ellis Center, works with us on a statewide project to train youth social services staff about LGBT youth. We also partner with the Triangle Foundation,523 an LGBT-inclusive anti-violence agency, whose victim advocate comes weekly to the Drop- In Center to engage youth in discussions on street safety and violence. AIDS Partnership Michigan (APM)524 provides HIV/AIDS counseling and testing for our youth. After finding at one point in 2003 that 33 percent of the youth we tested for HIV were positive, APM immediately worked with us to implement intensive prevention programs. Finally, Common Ground Sanctuary525 has worked with us on street outreach activities since our inception five years ago, as well as providing shelter services for some of our male clients in need of assistance.

STAFFING OUR PROGRAMS The administration of the agency is under the direction of the Ruth Ellis Center’s executive director, Grace A. McClelland, a Ph.D. candidate in counseling psychology who brings 23 years of experience in criminal justice, social service and educational aspects of work with youth and families to her work in Detroit. Grace also has extensive experience with runaway, homeless and at-risk youth specifically. She has re-engineered the street outreach program (increasing the number of program participants by 750 percent in the last two years), developed and implemented TLP, which opened on February 5, 2004, and prepared for the licensing of the residential programs. Atiba Seitu, program supervisor of our street outreach program, is assisted by two team leaders and two street outreach workers. Collectively, they have over 40 years of experi- ence working with at-risk youth. Our 16 staff, including one state-certified cultural competency trainer, closely reflect the demographics of our target population: 94 percent African-American and 6 percent Caucasian. One staff member identifies as a male-to-female transgender person. Given its urban environment and the fact that the city is 87 percent African- American, 99 percent of the population served to date has been English-speaking

521 For more information, see www.thetaskforce.org 522 For more information, see www.mnyf.org 523 For more information, see www.tri.org 524 For more information, see www.aidspartnership.org 525 For more information, see www.commongroundsanctuary.org Ruth Ellis Center 93 African-American youth. The street outreach staff is 100 percent African-American, and all self-identify as LGBT. The impetus for developing a social service organization for LGBT youth came from the horror stories of how African-American LGBT youth were treated by the systems designed to help them. When 15 adults came together to discuss the situation of youth in Detroit, they were astounded by how many youth they each knew in need of survival services and a home. All 15 people knew of at least one young person in need and many shared stories just like Nate’s. After Nate was outed one evening, his mother got a gun and threatened to kill him if he did not leave immediately. So he went to his room to pack his belongings. His After Nate was outed two brothers followed him and beat him badly. He left home with one evening, his nowhere to go. Nate roamed the streets until he met one of these mother got a gun and caring adults. They cared for him in the best way they could and threatened to kill him decided to do something about this situation. The Ruth Ellis Center if he did not leave was the ultimate result immediately. So he Nate continues to stop by even though he is now 25 years old. His went to his room to tough life on the streets shows in his face but his smile is broad and pack his belongings. His proud. He is now taking care of his health, working, and living in an two brothers followed apartment with his boyfriend. His story is repeated every week when him and beat him we are greeted by a young person waiting for the Center to open badly. He left home because a caregiver has thrown him or her away just because he or she identifies as LGBT. with nowhere to go. In the last two years, two of our youth have been shot and one was murdered just because he was gay. Both youth were involved in the social service system. Horror stories from our youth about the social service providers abound. For example, transgender youth have no place in shelters in the area. They are forced to dress as their birth-assigned gender or are denied admission. Gay and lesbian youth are verbally abused and have been assaulted in the shelters. Youth report that staff are of little help and sometimes even create problems for them by treating them differently or ignoring them. Youth continue to hide in the system by denying their sexual orientation or gender identity, and as a result do not get the help they need. One of the unique features of our program is that it was created, managed and developed by LGBT professionals, LGBT youth and our allies. The strong emphasis is on develop- ment of our youth in conjunction with LGBT members of the community. By starting with LGBT people and maintaining this emphasis, the teams were able to gain trust from our youth more readily. The Ruth Ellis Center also normalizes an LGBT identity by affirming our youth however they present. It is critical to remember that LGBT youth are different in many regards, but they still face the same challenges as every other adolescent. Programs for LGBT youth must be developed regionally, keeping in mind all of the factors affecting the local population: race, culture, poverty, classism, racism, homophobia, current resources for potential collaborations and the capacity to train organizational partners. Advocacy and training are critical components to be considered in developing programs for LGBT youth. Since 1999, the Ruth Ellis Center’s Street Outreach Program (SOP) and Drop-In Center have offered a safe haven for thousands of homeless LGBT youth. In 2004–2005, we recorded a total of 10,112 meaningful contacts with youth, and this year we are on track LGBT Youth 94 Homelessness to exceed 15,000, making the Ruth Ellis Center the largest SOP of its kind in the six-state region.526 Still, the needs of this population continue to grow. The SOP has grown by 50 percent each year over the last three years. As the organization increases the breadth of our programs, services and open hours, we offer help to more young people in new and significant ways. As this growth has occurred, a series of goals and objectives have remained our constant focus, and we believe they can inform the development of other service agencies’ programming in this area.

THE STREET OUTREACH PROGRAM Our Street Outreach Program (SOP) aims to reduce the risk of exploitation and danger to which adolescents are exposed by virtue of living without needed economic, social and community supports. Specifically, this program provides street outreach to thousands of individual LGBT youth regarding the dangers of substance abuse, sexual exploitation, sexually transmitted diseases including HIV and AIDS, and safer sex practices. The SOP establishes contact, rapport, and trust with LGBT youth who are homeless, runaways, hanging out on the streets or otherwise living in unstable situations. The SOP’s drop-in center is at the north end of Detroit in Highland Park on the main north/south artery in the city, making the center accessible to freeways and bus lines. It is within one city block of one specific area where most LGBT street youth tend to congre- gate: Palmer Park and its surrounding motels, adult bookstores, bars and restaurants. Wherever they are, these youth have few options for seeking the basic services an SOP provides, at least in an LGBT-friendly atmosphere. Absent these services, many remain on the streets long-term, using survival sex and crime as a means to access shelter and meet their other basic needs. The primary objective of the outreach effort is to reach and engage runaway, homeless and street-involved LGBT youth on the street and where they gather. The SOP targets those youth who are not already in the care of government agencies such as child protective services, foster care and the juvenile courts. This is accomplished by providing six street outreach shifts per week in places where youth congregate, providing non-judgmental aid and developing strong, trusting relationships between project staff and the youth popula- tion so that those youth feel comfortable seeking help and support. The street outreach workers are well experienced and highly recognized on the streets. They are respected for their message and their ability to relate to street youth. The SOP assists at-risk youth who are in immediate crisis through appropriate interven- tion and/or referral, providing intensive crisis intervention and referrals to 2000 youth annually. Staff can also assist youth in moving and adjusting to a safe and appropriate alternative living arrangement. The SOP Drop-In Center also offers two hot meals nightly, laundry and shower facilities, clothing, shelter and other resource referrals. Too few social service professionals have a complete understanding of LGBT issues, even if they are on the surface supportive. To overcome this problem, the SOP staff provides advocacy and education to social service, county and state agencies and individuals

526 Region five includes Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. Ruth Ellis Center 95 regarding the unmet needs of runaway, homeless and at-risk LGBT youth. Outreach is also extended to community youth-serving agencies, schools, churches, community groups, youth and parents as well as through one-to-one and group presentations about the Ruth Ellis Center, through street and in-home contacts with youth and parents and through print and broadcast media. Another component of the program’s outreach effort involves building relationships with cooperating agencies so that the staff of each agency is aware of the SOP’s services and understands how to access those services. We are also working with agencies as far afield as Oklahoma and Pennsylvania. We provide education and prevention services via groups that are held three times weekly, reaching over 200 youth each week. They address substance abuse, HIV/AIDS prevention and street survival. In collaboration with AIDS Partnership Michigan, youth receive HIV testing, counseling and prevention programming and the SOP team develops and regularly publishes adolescent-friendly written materials to educate youth about substance abuse and sexually transmitted diseases. The SOP individually counsels at-risk youth to identify their strengths, weaknesses and needs, and to increase self esteem. We help them to martial and employ their own inner and external resources and to identify, access and successfully exploit the resources available to them through our agency and other supportive agencies and programs in the community. These critical services ensure that the SOP can also work to decrease the number of LGBT youth who are homeless, providing individual and family counseling to help youth return to their homes if possible. For those for whom returning home is not possible or safe, the program staff work to access safe, suitable housing with some other family member or friend. Long-term independence is important and closely tied to educational and employment opportunities. We work to reduce the dropout rate among LGBT homeless youth and increase the employment rate among our youth in a number of ways. First, through our youth employment training program, each year 300 youth receive job skills training and job coaching that enables them to obtain and retain employment. We also have an after-school tutoring component that assists 200 youth annually with homework as well as helping them to cope with discrimination and harassment in their schools. In particular, we focus special efforts on transgender youth, who face higher risks on the street. Annually, 30 transgender youth are given the employment skills necessary to help them secure a job and cease sex work.

THE DROP-IN CENTER Just as the SOP is built around established best practices, so too is our drop-in-center. In fact, the drop-in center is the hallmark of our success. Presently, we average 45 youth visitors per day and can have as many as 80 young people visiting the center for a meal, a chat with a counselor or just to hang out with friends. Between April and September 2006, we had 6,473 contacts with youth, a 21-percent increase over the same period in 2005.527 Due to this rapid growth, the center recently moved to a new 10,000-square-foot space. The drop-in

527 As confirmed in telephone and email communications with staff at the Ruth Ellis Center. LGBT Youth 96 Homelessness center is open seven days per week from 12:30 p.m. to 9:30 p.m. There are at least three staff members at the center at all times. In the new space, trained volunteers will between them provide 160 hours per week of supervised services and support. Youth tend to come in and out of the center during a shift, reducing the actual number of youth in the center at any one time. The staff to youth ratio is usually about 1:10. Since most activities are group activities, the current ratio is adequate to maintain a safe and secure environment. Additionally, the program maintains an on-call list of outreach workers who can come to the center when needed on an emergency basis or if the center becomes crowded. We pride ourselves on our ability to help youth to solve most of their immediate problems. Our youth create alternative family structures to obtain a sense of safety and belonging. Most of our youth have adopted family names and roles within a structured family unit in which gender plays no role. This increased identity of family creates a loving atmosphere with ties that bind strongly.

POSITIVE YOUTH DEVELOPMENT The program incorporates all of the elements of positive youth development predicated on the understanding that all young people need support, guidance and opportunities during adolescence, a time of rapid growth and change.528 With the support of the program, LGBT homeless youth increase self-assurance and self-esteem and create a healthier life. The program is predicated on a strength-based approach, affirming the youth’s sexual orientation and gender identity/expression and providing other healthy messages about their bodies, their behaviors The agency has a Youth and their interactions. This Positive Youth Development frame- Advisory Board (YAB) work is different in nature from the White House Positive Youth that meets monthly with Development (PYD) framework, with the latter stressing a more the executive director conservative approach focusing on abstinence-only sex education and other key staff rather than comprehensive sex education that makes LGBT homeless to provide feedback youth better prepared for their inevitable sexual activity. We provide on current program a safe and structured place to learn, recreate and socialize while activities, help resolve strengthening relationships with adult caregivers and other adult role problems, and develop models such as teachers, mentors and community leaders. program activities. To aid independence, we provide skill development in literacy, work readiness and social skills. Daily activities and groups provide opportunities for reading, writing, creativity, social interaction, decision-making, problem solving and negotiation. Opportunities to increase self-esteem are interwoven throughout the program, as the entire philosophy of the program is strength-based, focusing on the positive aspects of a youth’s development. Youth are included in all aspects of program development and evaluation, including continual refinement of the programs. Youth were involved with the executive director and other staff in moving to and decorating the new center facility. The agency has a Youth Advisory Board (YAB) that meets monthly with the executive director and other

528 Like providers around the country, the staff at the Ruth Ellis Center adapts the specific framework of the Department of Health and Human Service’s Positive Youth Development model to account for local cultural and population characteristics. Ruth Ellis Center 97 key staff to provide feedback on current program activities, help resolve problems, and develop program activities, including leisure activities. The YAB is designed to function as a forum for any youth to advise and consult with agency administration and the board of directors. Its purposes also include planning for activities and communication as well as problem solving and development of strategies for improving the quality of the programs. Each program has two youth representatives on the YAB. Additionally, youth are employed as staff members (two staff are under 25 years of age) and youth involved in the program volunteer as street outreach workers. Parents are involved as members of the board of directors, though unfortunately most parents of our homeless LGBT youth do not affirm their own child, let alone participate in the development of the programs. However, every effort is made to fully involve them in our work with their child, as well as to provide feedback on the program’s services.

SEXUAL ABUSE AND EXPLOITATION The LGBT homeless youth population is particularly vulnerable to sexual abuse and exploitation. There are many predators who seek out this population. We listen to stories every day about men who are “sick” (infected with HIV) that are consistently in the areas where homeless LGBT youth congregate. These people offer youth small amounts of money to have sex with them. Our youth believe that these people are intentionally trying to infect the youth and do not care who they infect. Many of the youth are aware of this situation and still participate in commercial sex work to get their basic needs for food, money, and shelter met. Because of this very real risk, we work with our youth to develop their understanding of healthy and unhealthy relationships so they can avoid and end unhealthy sexual encoun- ters and increase their participation in healthy relationships. This is accomplished in part by conducting several forums a week for youth to learn about safer-sex practices. Recently, during a safe-sex discussion group, we demonstrated the correct use of a condom and were surprised to learn just how many youth in the room did not know how to use one. The harsh reality is that youth are engaging in sex regularly and we must provide them with the resources to protect themselves or they will engage in sex without protection. We also provide a safe space for youth to address the issues affecting their lives in a group called “Bending the Rainbow.” Each week, we begin with one topic; inevitably the youth channel the discussion to a topic relevant to their lives. Most times, the discussion turns to relationships and sexual issues on the streets. The youth become very comfortable talking about their sexual practices. We use each of these opportunities to provide information on healthy and unhealthy relationships as well as safe and unsafe sex practices. Encouraging and supporting our target population to participate in local youth group activities and interactions with their peers in a directed social activity is an important part of our efforts. The gay male youth population may idolize the idea of relationships with older men, creating unsafe situations for themselves. We encourage our youth to engage in activities with people their own age and to try new activities.

LGBT Youth 98 Homelessness RANGE OF SERVICES Street-based Services: The SOP conducts street-based services six times a week. Working in pairs, the outreach teams provide youth on the street with a custom made kit of condoms, lube, dental dams, hard candy, alcohol swabs and kicker cards (informational cards containing our information as well as referral information for shelters). Outreach workers engage youth in conversation, encouraging them to seek legitimate shelter and other services. Survival Aid: The SOP provides many forms of survival aid, including showers and hygiene products, laundry facilities, clothing from Ruth’s Closet, food, safe space, referrals for shelter, crisis counseling, positive peer support, safe sex aids, and other harm reduction techniques. On the street, we provide counseling, referrals and safe sex resources. Individual Assessment: Youth coming to the program receive a warm welcome and individual time for assessment of their situation, which can take several days. As youth begin to trust them, counselors are able to assess individual circumstances and devise a comprehensive plan to provide the necessary in-house services and/or referrals. Counseling: The SOP provides counseling at the drop-in center and on the streets. Street-based counseling focuses on getting youth off the streets. Counseling at the drop-in center is more comprehensive. Group discussions take place every evening with individual counseling occurring as needed. A team of licensed therapists and psychologists donate their services at our drop-in center. Prevention and Education Activities: A major part of the program is developed around prevention and education activities. Topics include everything from substance abuse and sexual exploitation to social interactions, including positive peer relationships. Several other organizations participate in these activities, including AIDS Partnership Michigan, MPowerment and Triangle Foundation. Information and Referral Services: The program has an extensive network for information and referrals. Staff members utilize a readily accessible resource book to give information and referrals for youth coming to the Drop-In Center as well as youth and families who call in for services. The agency ensures that resources are sensitive to the unique needs of LGBT youth. The SOP continues to provide culturally sensitive training to those agencies requesting those services. Crisis Intervention: SOP staff members manage most crises and have resources outside of the program as well. Ruth Ellis Center’s Transitional Living Program staff members, along with the executive director, are available 24 hours a day to provide additional resources for youth and staff. The agency trains its staff and volunteers in crisis intervention and crisis management, utilizing a nationally certified program. Follow-up Support: The SOP provides follow-up support for all youth in the program. For direct services, the SOP contact youth after service completion to assess success of the intervention and the need for additional services or referrals. For referrals, particularly to shelter, SOP staff contact the other agencies and make follow-up calls or visits to youth and workers. When youth are accepting of shelter services, our staff follows the youth directly with our partners to ensure continuity of services.

Ruth Ellis Center 99 Emergency Shelter: The SOP has formal memorandums of agreement with two agencies that can provide emergency shelter for one of our youth if we are unable to house them.529 We provide the same service and courtesy to the other agencies when they need short-term shelter assistance. To ensure continuity of service, the agency’s SOP staff are also guaranteed access to the other shelters. Additionally, in June 2006, the Ruth Ellis Center was licensed by the state of Michigan to operate a group home, and we have opened our shelter for 12- to 17-year-olds with an expected move-in date of fall 2006 for the first resident. Volunteer Program: The agency coordinates and manages its volunteers with a volunteer coordinator. Every person that performs any work at the Center is carefully screened to ensure the highest qualifications and safety for our youth.

PROGRAM IMPACT In combination, our street outreach work and drop-in center have had a profound impact on the community of homeless LGBT youth in Detroit and southeastern Michigan. The SOP has become a solid and reliable presence in the community at large and specifically in the areas where our target population congregates. This presence publicizes a consistent point of contact for LGBT youth to access services they require. As a result, youth connect with other youth and staff members who have survived the same street-related challenges and demonstrate that survival is possible. The SOP has at least four staff members that have successfully transitioned from marginal situations to gainful employment, stable living situations and a successful life off the streets. These staff and other youth role models can guide the youth to a safe space where they can begin their journey to healing, recovery and independence. Over the last three years, the Ruth Ellis Center has become a statewide resource for governmental agencies and other social service organizations seeking to accommodate the special needs of LGBT youth. These agencies call upon us as a competent and trustworthy resource for LGBT youth and often refer young people who might benefit from contact with the Ruth Ellis Center and its programming. We can also point to specific improvements in individual, family and community functioning as a result of the services we provide. 1. There are fewer LGBT youth on the streets and greater safety for those who remain on the streets. 2. For those families willing to participate, the SOP provides family counseling and crisis intervention counseling, resulting in improved familial relationships and hopefully stabilized living situations for LGBT youth seeking services. 3. The SOP and drop-in center serve as liaisons between LGBT homeless youth and appropriate community agencies and services, such as hospitals and GED programs, so that youth can actively seek out and receive the assistance they need to make positive changes in their attitudes, values and behaviors, leading to healthy lifestyle choices.

529 The two agencies with which we have agreements are the COTS program and Common Ground Sanctuary. LGBT Youth 100 Homelessness 4. Through educational information about safe sex practices, LGBT homeless youth become more aware of the variety of sexual behaviors that put them at risk for contracting HIV. Through our collaborations, youth receive testing, counseling and prevention programs specifically directed at the target population. 5. LGBT youth are becoming more educated about the physical and emotional dangers of using alcohol and drugs. 6. LGBT homeless youth gain an understanding of the support they need to make healthy choices regarding their sexual behaviors and physical safety. 7. Cooperating governmental and social services agencies gain a greater understanding of the unique needs of LGBT youth. Our SOP staff frequently appears at seminars and trains other social service providers in working with LGBT youth.

BARRIERS TO SUCCESS Staff at the Ruth Ellis Center SOP and drop-in center have identified seven existing or potential barriers to providing service to LGBT runaway and homeless youth. For the benefit of those contemplating working with this community, they are listed below, along with corresponding actions to ameliorate or minimize the barriers. 1. Mistrust from youth a. Maintain a consistent street presence that tells youth, “We’ll be here for you whenever you’re ready” b. Maintain a safe, nonjudgmental space at the drop-in center c. Develop positive peers d. Actively recruit previously homeless and street veteran volunteers and staff e. Continue to provide for basic needs such as food, clothing and showers f. Maintain professionalism and respect for everyone encountered 2. Lack of funding and resources a. Establish a solid resource development plan annually, searching for and applying for new funding for this target population b. Ensure that services are fundable by providing the highest quality of services for our youth and families c. Continue involvement with networks and collaborations that are concerned with the welfare of runaway and homeless youth 3. Homophobia (from society, family and the social service system) a. Get involved in community education b. Collaborate and expand networks with other groups at every opportunity; be proactive in offering to help train those who may know they need to help but do not know how to find the appropriate training or are embarrassed that they even need to in the first place c. Building a stronger network of LGBT people and allies 4. Potential violence committed against our staff a. Provide training in self defense and crisis intervention b. Provide proper safety equipment, communication, training and supervision

Ruth Ellis Center 101 c. Ensure availability of cell phones for all staff doing street outreach work; be certain that strategic planning for street outreach efforts includes staff and volunteer safety and awareness 5. Unsupportive or jaded volunteers a. Provide exposure to street youth in controlled situations with experienced staff b. Include diversity, cultural issues and differences awareness training as part of your volunteer orientation c. Maintain a written policy on ethics and professionalism including maintaining a nonjudgmental perspective with youth d. Ensure that the recruitment process is adequate to screen out persons who may potentially harm or take advantage of youth 6. People who benefit from sexual exploitation of runaway and homeless youth a. Continue to provide education for youth to resist these people b. Again, ensure that the recruitment process for staff and volunteers is adequate to screen out persons who may potentially harm or take advantage of our youth c. Maintain safe spaces for youth that are not generally publicized d. Educate staff and others working with youth as to the behaviors that signal danger for the youth 7. Youth acting out a. Provide outlets for behaviors, mixing social events with programming b. Maintain clear boundaries for utilizing SOP resources and maintain a zero toler- ance for physical violence and weapons possession c. Teach appropriate coping skills and social interaction skills

EVALUATION When all is said and done, all the planning and goodwill in the world is for naught if we do not reach the youth and are therefore unable to improve their circumstances. We have established an ongoing evaluation system that tracks the progress of youth and service outcomes according to functional goals. We are also currently undertaking a new project in collaboration with Dr. Robin Miller of Michigan State University to develop a compre- hensive internal evaluation system. Each program, in order of its opening, will undergo this thorough self-discovery, clarification and analytical process. Upon completion, each program will have tailored scientifically based outcomes and indicators custom designed for this particular population in this region of the country. The current criteria used to evaluate the results and success of each project include: • Measurement of service goals achieved versus targeted, including numbers of youth and families served by type of service, percent of families contacted, numbers of youth and families receiving information and referral on the hotline, and numbers of community members reached through outreach activities. • Outcomes at the time of service completion, such as percent with ability to develop realistic goals; for youth and families, including percent of youth returning home or provided safe alternative living arrangements and percent continuing to run away. LGBT Youth 102 Homelessness • Reports of satisfaction and program impact by youth and families served by the program. • Percent of youth achieving goals (including school attendance or completion, no additional runaway incidents, self harm reduction including safe sex and diminished use of illegal substances) at 30-, 60- and 90-day follow-up. Follow-up includes measuring youth and family progress in carrying out the aftercare plan. Follow-up is accomplished by telephone interview with youth and family and provides an opportunity to determine whether additional services are needed. • Statistical records are kept, providing a yearly profile of youth and families served. Program results are reviewed quarterly by both program and administrative staff as well as by the board of directors. • These measures are supplemented by reports by outside independent reviewers, including the state’s Department of Human Services (DHS), the licensing body for child care institutions in Michigan. Additionally, the agency is committed to assisting institutions of higher education in researching and finding successful methods of working with LGBT homeless youth. We cooperate with any research or evaluation efforts sponsored by the Federal Department of Human Services Administration for Children and Families, and have participated in research projects with higher educa- tion institutions where appropriate knowledge bases exist and participant protection processes are in place.

CONCLUSION The work that the Ruth Ellis center staff completes day in and day out is absolutely crucial to our challenge of getting African-American LGBT youth off the streets of Detroit and into stable housing, enabling them to focus on developing the skills and securing the quali- fications that they need to provide for themselves as independent adults. Street outreach programs and drop-in centers are the first step in this difficult mission, and we are proud of the results we have achieved to date and excited about the opportunities to come.

Ruth Ellis Center 103 Green Chimneys: Triangle Tribe Apartments transitional living program BY THERESA NOLAN, M.A. Founded in 1947, Green Chimneys Children’s Services is a nationally renowned, nonprofit therapeutic organization that restores possibilities and creates futures for children with emotional, behavioral, social and learning challenges from the five boroughs of New York City, Putnam and Westchester Counties in New York and Fairfield County in Connecticut. The agency has a long history of assisting children, youth, and their families in times of crisis. Presently, we serve over 300 children, youth and adults who are dependent, neglected, abused, abandoned, Persons In Need of Services (PINS), delinquent, runaway, homeless, emotionally disturbed and/or developmentally delayed as well as lesbian, gay, bisexual, transgender and questioning (LGBTQ). We have provided services to older homeless youth in Putnam County since 1981, and more recently in Danbury, Conn., and New York City. We operate federally funded basic center and street outreach programs in Putnam County, New York and Danbury, Conn., and a federally funded transitional living program (TLP) in New York City. In Brewster, New York, we serve 102 children in a residential program and an addi- tional 80 students in a day school program. Many come from families with extensive problems including mental illness, substance abuse, domestic violence and unsafe or inadequate housing. The children struggle with medical issues that complicate their treatment, including asthma (40 percent), persistent bed-wetting (32 percent), serious weight problems (28 percent), and seizures, heart disorders, allergies, food intolerance, recurrent infections and sleep disorders. Eighty percent of the children have received special education services before, and the average student is more than two years behind in educational attainment. The average IQ is 78, and 25 percent are considered mildly mentally retarded. Mental health agencies, child welfare and social service agencies and school districts in the tri-state area refer children to Green Chimneys because we are recognized as the best choice for comprehensive, individualized programs unavailable elsewhere. Each student’s curriculum is highly individualized, creating a comprehensive therapeutic environment. An unparalleled level of professional support—including experts from social workers to teachers, psychologists, psychiatrists, nurses and speech pathologists—guides children in making constructive choices and exploring their talents.

LGBT Youth 104 Homelessness NEW YORK CITY PROGRAMS Green Chimneys now has four residential programs in New York City, with the first having opened over 20 years ago in the Gramercy neighborhood of Manhattan. All of our New York City programs focus on serving the LGBT youth population. The development of the Gramercy Group Home allowed Green Chimneys to become the first child welfare agency on the East Coast to specialize in services for LGBT youth. In addition to the group home in Gramercy, Green Chimneys has developed three programs in Harlem. These include an agency operated boarding home, a supervised independent living program and the Triangle Tribe Apartments. The Triangle Tribe Apartments consist of two transitional programs for runaway and homeless youth, with a total of 20 beds. The Triangle Tribe Apartments program specifically serves LGBT runaway and homeless youth who find themselves without a safe permanent residence.530 The program focuses on providing shelter to youth for 18 months while teaching them life skills, ensuring that they have jobs, addressing educational needs and preparing them for adult independent living. The program is in the process of growing. Since the year 2000, we have been federally funded for 10 beds. We have also received city funding to increase our capacity to 20 beds, a figure reached in late November 2006. Since the program opened in 2000, more than 45 youth have resided in the transitional program. The majority of our youth are from the five boroughs of New York City, though occasion- ally youth from the surrounding areas (Long Island or New Jersey) present themselves to the program. Even more rarely, youth from other parts of the United States seek our help. Many youth who are not accepted by their families or their hometown communi- ties head out on their own to a place they believe will be more receptive to their sexual orientation or gender identity. New York is just such a city, though it comes with its own set of obstacles. We collected demographic data on the first 40 clients that entered and discharged from the Triangle Tribe Apartments between 2000 and July 2005. Approximately 11 percent identi- fied as transgender, 47 percent as male, and 42 percent as female. Approximately 44 percent of the clients identified as Latino or Hispanic, 36 percent as black or African-American and 10 percent as white or Caucasian; the remaining 10 percent consisted of Asian, mixed and other races and ethnicities. Just over a quarter of these youth reported having been in foster care at some point in their lives and half of them reported experiencing physical abuse. Overall, the average stay for these first 40 clients was 10.5 months.

EMPLOYEE/VOLUNTEER DATA Green Chimneys employs a total of 482 staff members, 10 of whom work specifically in the Triangle Tribes Apartments program. The program is divided into two levels: the TLP is more independent with no on-site staff, and the TIL has 24-hour on-site staffing. The program director oversees both levels and some staff members work with both programs.

530 Our RHY transitional program, Triangle Tribe Apartments, is two separate programs that function as one. The Transitional Living Program (TLP) is 10 beds and is federally funded; the Transitional Independent Living Program (TIL) is 10 beds and is city funded. The essential differences between TLP and TIL are their funding sources, reporting requirements and on-site staffing needs. 105 The TIL and TLP share a program director, a life skills coordinator and a social worker. The TLP also has an apartment counselor who visits the apartments daily. The TIL has a team of on-site workers, called youth counselors, overseen by the unit supervisor or senior youth counselor. We offer a wide range of job and volunteer opportunities to appropriately qualified and experienced applicants who pass a rigorous screening process that includes a criminal background check (fingerprinting), state central registry for child abuse, sexual offender registry, education and reference checks, and drug testing and health assessment. Employees are offered many opportunities to participate in numerous training programs on- and off-site. One indication of the constructive atmosphere we have created is the reduction in employee turnover from 49 percent in 2000–2001 to only 22 percent in 2005–2006. We also benefit from a number of international trainees who join us each year from countries including the United Kingdom, South Africa, Poland, Croatia, Colombia and Australia. All staff members receive an array of training, including agency- mandated trainings and optional trainings, depending on job responsibility. Full-time staff members at programs certified by New York state’s Office of Children and Family Services are mandated to engage in 40 hours of training each year.

COLLABORATIONS We collaborate with various social service agencies in order to plan holistically for our clients. Services sought in the community include medical services, mental health, education, mentoring and domestic violence support. We also work with New York state’s Office of Children and Family Services and the city’s Administration for Children’s Services as well as the Department of Youth and Community Development regarding funding, program certification, state regulations and more. We work to provide our clients with the services needed to improve their lives, whether this is through on-site programs or through our network of providers. Our foster care programs for LGBT youth also collaborate with other states to provide care for out-of-state youth.531

WHAT IS TRANSITIONAL LIVING? Transitional Living Programs (TLPs) are a critical component of a comprehensive strategy for ending youth homelessness. They provide an opportunity in a safe and controlled environment for young people who missed many of life’s “normal” lessons growing up to learn the basics of how to survive as an independent adult while living like one. Currently, TLPs that are funded through the federal Family and Youth Services Bureau (FYSB) are authorized as part of the Missing, Exploited, and Runaway Children Protection Act.532

531 Other states referring youth for foster care services at Green Chimneys include New Jersey, Pennsylvania and Alabama. 532 The Missing, Exploited, and Runaway Children Protection Act, (Public Law #106-71) was passed by the 106th Congress. It reautho- rized the Runaway and Homeless Youth Act, and allows for three levels of specific programming for homeless youth (Street Outreach Programs, Basic Center Programs, and Transitional Living Programs). Further discussion of these specific programs is provided in the “Federal response to youth homelessness” section of this report. LGBT Youth 106 Homelessness These programs are administered by FYSB, a division of the Administration for Children and Families, which is a part of the Department of Health and Human Services. TLPs are designed to provide stable housing for youth under the age of 21 who are runaways, actively homeless, or facing homelessness. Other sources of funding for transitional programs for this population exist as well, though these programs vary slightly by policy, procedure, structure and focus. For example, at the federal level there are also Housing and Urban Development (HUD) monies available that operate under different protocols than those of the FYSB funds that govern Green Chimney’s TLP. Even though both sets of funds come from the federal government, different departments or agencies develop somewhat different rules for their use. These differences might be related to the age range of youth who are eligible for services or the length of time someone can remain with the program. At the state level, there are a couple of specific things to bear in mind. First, while much of the money to fund transitional programs comes from federal sources, it is managed within each state. Each state, or more specifically an administrative agency thereof, determines the precise allocation of these funds. While a state cannot ignore federal guidelines, it can make additional demands of receiving agencies. Hence, while HUD funds distributed through Program X in one state may have no rules attached to them beyond what was determined at the federal level, in a second state, the state agency coordinating regulations and/or funding decisions might impose additional rules based on the state’s desire to impact service provision in certain ways. Some states have also created pools of their own money to fund these kinds of programs; these funds are available to qualified agencies in the state that meet the demands of the distributing agency. Such program rules or limitations may be very different from federal guidelines. Finally, at the local level, large cities are increasingly getting into the business of providing monies to fund care for homeless individuals, including youth. For example, the New York City Council recently allocated funding for homeless youth programs. This funding is dispersed through New York City’s Department of Youth and Community Development (DYCD). DYCD created a portfolio of programs that includes a hotline, street outreach, drop-in centers, emergency shelters and transitional independent living programs (TILs). While the premise of a TIL is the same as that behind TLPs, application of the funds is different. For example, DYCD’s TIL funds require that agencies maintain 24-hour staffing and that a curfew be placed on youth who live in the program’s housing. Additionally, the state of New York has determined that it will certify single-sex housing arrangements only. The reasoning behind this decision is based on the naïve assumptions that girls and boys mixed together will have sex, resulting in unwanted pregnancies. Of course, this idea does not take into account the reality for a program working specifically with LGBT youth. We are now forced, in order to be eligible for these TIL funds and to obtain certification for both TIL and TLP, to place three or four young men who identify as gay or bisexual together in a single apartment. The consequence is just as predictable as unplanned pregnancies; we run a real risk of the residents having sex, which is an outcome we strive to avoid. While we are of course deeply committed to supporting all our youth in celebrating their sexual orientation or gender identity, we are also very aware of the potential conflicts that could arise if roommates develop a sexual relationship. Initially, the TLP apartments were mixed-gender. Certainly there were instances where roommates became intimately involved, but the mixed gender setting reduced the amount of intimate partner “drama” we may have otherwise seen.

Green Chimneys 107 Our primary goal must continue to be to enable our youth to focus on developing the necessary skills to ultimately live independently. Despite their policies intended to avoid sexual interaction among youth in care, New York state and New York City have been quite flexible in the application of rules to transgender youth. They permit an agency to make a judgment as to the safest place for each youth to live, regardless of birth gender, and to place that youth accordingly. The vagaries of rule-making from funder to funder are highlighted by the fact that the federal government has no rules regarding the need for gender-based segregation, despite the fact that a reduction in teen sex and pregnancy rates is one of the Bush administration’s key social policies. The central point to New York state and take from this brief discussion of funding options is that there are New York City permit a multitude of avenues for any agency to explore when it comes to an agency to make a seeking support to pay for particular service provision. Knowing judgment as to the safest what these are and the attendant rules can be helpful in determining place for each youth to your best route forward. It is also important to remember that live, regardless of birth regardless of funding source, certification or licensing will always be gender, and to place the trumping factor. that youth accordingly. An overall general goal for all transitional programs, regardless of funding source, certification agency or rules concerning use of funds, is to prepare youth for independence. It is a bridge between homelessness (or some type of dependent unsafe living setting) to independent self-sufficient living. This includes teaching life skills—the basic skills one needs to enjoy a healthy, responsible adult- hood. Each program may have a slightly different version of a required list of life skills or may differ on how they are taught, but most will include at minimum the following skills: hygiene, job readiness, interpersonal skills, education planning, budgeting/money management and housekeeping. In addition to the above topics, the Green Chimneys transitional living curriculum also includes health management, transportation planning, pet and plant care, safety planning and local resources awareness. As needed, these life skills lessons are adapted to include new and relevant technologies and participant needs. Clearly, adaptation to alternative geographic locations and demographics served might necessitate reassessment of the relative importance attached to specific components of a well-rounded TLP. For example, the Green Chimneys staff realized that cell phone use was creating difficulty with budgeting, savings and proper etiquette, so this will be added to the life skills curriculum in the near future.

HISTORY AND DEVELOPMENT OF THE TRIANGLE TRIBE APARTMENTS Since 2000, the Green Chimneys TLP has provided 10 beds to homeless/at-risk LGBT youth ages 17 to 21. Youth are given their own bedrooms in mixed-gender apartments that have two or three roommates; they are allowed to reside in the program for up to 18 months. The three apartments are scattered site, meaning that they are in different apartment buildings, separate from the program office. Separation of the living spaces and program staff is for us, and for many other providers, a necessity. This separation also reinforces the independence-developing focus of the program. Additionally, operating a LGBT Youth 108 Homelessness scattered site program is arguably more reflective of the real world into which we work to graduate our clients. There are excellent examples of larger transitional programs that may well fit another location or service provider’s capacity or goals.533 These include congregate facilities and multi-unit apartment or single room occupancy buildings.534 However, most independent adults do not live en masse in homogeneous environments in buildings with people with the same jobs, life experiences, income or needs. Placing youth in diverse communities allows them to be culturally comfortable around people who are simultaneously similar to and different from them. Spreading such housing units across a wider area might also help to ameliorate potential political or community opposition. Homeowner’s associations and local politicians who get lobbied by these groups often instinctively oppose such housing in their neighbor- hoods for fear that property prices will plummet, that crime will increase, or that the general feeling of the neighborhood will become too rowdy. Working with a community, introducing clients to those who already live there, and generally maintaining good working relations with neighbors and building management can be critical to any agency providing programs to In the Green chimneys help youth prepare for the real world. program, the culture of Youth are required to pay “rent” by contributing to their own savings the LGBT community account held by the program, attending meetings and completing is celebrated. chores. The program is an affirming environment where young people’s identities are not problematized. In this program, the culture of the LGBT community is celebrated. An atmosphere of acceptance, not simply tolerance, is crucial to creating this safe space. This program was developed out of recogni- tion for the need for transitional housing that focused specifically on this population. LGBT youth who were homeless were having difficulty finding a safe place to live and were experiencing harassment and sometimes abuse in much of the general population shelters and transitional programs. Sometimes youth were forced to stay at adult homeless shelters, which held their own set of dangers for LGBT youth. Green Chimneys’ work with LGBT foster care youth made it an ideal agency to open its doors to LGBT homeless youth as well. Scattered site programs structured like ours are also ideal “next step” housing options for “mentally ill or substance abusing individuals who have graduated from congregate facilities but can benefit from continued support.”535 We turn now to the specifics of our program and what makes this an effective model for other agencies.

533 For example, S.C.O. Family Services in Brooklyn, New York operates just such a program. Independence Inn, their transitional living program for youth, is home to youth moving towards independence. They have three separate sites: one for males, one for females and one for pregnant/parenting youth. All resemble dorm-style settings. While not LGBT-specific, the agency has a terrific reputation for its work with this community, and Green Chimneys has referred qualified youth to them when we have not had the capacity to help them. 534 Barrow, S. & Zimmer, R. (1998). Transitional housing and services: A synthesis. Retrieved June 3, 2005, from http://aspe.hhs.gov/progsys/ homeless/symposium/10.htm 535 Ibid. Green Chimneys 109 THE MISSION AND PHILOSOPHY OF GREEN CHIMNEYS TRANSITIONAL PROGRAMMING When youth enter the Triangle Tribe Apartments, they become part of a community that is constructed to affirm a young person’s identity and to help them function within the surrounding community. First and foremost, this is a community of LGBT people. In this program, youth meet peers who also experience society’s homophobia and transphobia. Additionally, In this program, the youth are immediately connected with LGBT staff members. Clients culture of the LGBT have commented on the importance of having successful, healthy, community is celebrated. openly LGBT adults assisting them in their growing up process. The An atmosphere of presence of diverse staff members who mirror the population served provides youth with realistic role models and ensures that there acceptance, not simply is an organic understanding of what the youth are experiencing. tolerance, is crucial to For example, LGBT staff members have their own experiences of creating this safe space. coming out and homophobia or transphobia, which allows them genuine insight into what the youth are dealing with in their lives. It is also crucial to have non-LGBT staff because young people need to know that not only do LGBT adults care about them, but “straight” adults can also be good role models. This also provides an example of diverse people working together to help each other. Furthermore, Green Chimneys staff work to establish an LGBT-affirming community by celebrating events like “Pride” and by posting LGBT-themed media, including magazines and newspapers. The second type of community created is both geographic and cultural. While a scattered site program specifically aids youth in a number of ways, the area of Harlem where our apartments are located has a strong mix of African-American and Latino/a cultures, ethnic identities that are similar to the majority of youth entering this program. This creates a sense of fitting in within their neighborhood. While much of the time LGBT people are forced to choose between their sexual identity and their ethnic identity, in this program youth are encouraged to embrace both.

PRACTICE: HOW IT OPERATES Participation in the Triangle Tribe Apartment program is completely voluntary, and clients may reside in the program for up to 18 months. The Triangle Tribe Apartments program not only provides a “safe haven” for LGBT adolescents, it also places importance on teaching young people the essential life skills necessary for their transition into inde- pendent living. These skills (cooking, grocery shopping, laundry, money management, job seeking and job maintenance skills, etc.) offer young people real world opportunities to test out independence, to be responsible for themselves, and to learn other essential tools for self-sufficiency. The program’s apartments are fully furnished with basic equipment necessary for self- sufficiency. Some of this is donated, but much of it is budgeted for in the grants we write, covering both set-up costs and longer term renewal as required. Residents are encouraged to make the apartments reflect their own personalities and make them as “home-like” as LGBT Youth 110 Homelessness possible. Beyond providing safe and stable housing and the most basic day-to-day life skills training that youth must obviously master, we also work on longer-term needs and oppor- tunities for each youth to optimize their potential and transition into successful adulthood. For example, program goals include assessing and planning for educational and vocational enhancement, monitoring and addressing substance abuse issues, and preparing each client for long-term housing upon discharge. The literature review portion of this publication has highlighted all too clearly the great risks faced by homeless youth and LGBT youth in particular, so it is important from our perspective to ensure that we do everything we can to address as many of the predictable problems that might come along as possible. Youth interested in entering the Triangle Tribe Apartments program do so through an application process. They complete a pre-intake application packet that includes docu- mentation of a physical, a daily schedule of how the youth spends their time, copies of any identification they may have, and a brief essay on why the young person wants to be part of the program. A program social worker assists all interested youth with this application process. During this process, the young person is assessed by the staff social worker for mental health functioning to determine whether he or she is stable enough for the low level of supervision the program offers. It is critical for any service provider targeting transitional services for youth to be aware and willing to accept that not every youth who enters their agency will be prepared to take advantage of such a program, however much we might wish to help. This does not consti- tute failure on the part of any program. Rather, it signifies the need for more intensive supervised care in advance of transitioning to independence. For those seeking to help LGBT youth specifically, appropriately trained and culturally aware staff are crucial to this screening process to ensure that particular needs are recognized and met. Once the application packet is completed, the young person meets with other appropriate team members (program director, life skills coordinator and apartment counselor) for a second interview. Applicants are given a resident handbook and encouraged to ask questions about program participation. Residents chosen for admission to the program begin working with the staff prior to their admission, providing an opportunity for them to become further acquainted with the program’s rules and expectations. Residents must meet a number of criteria536 prior to admission, including the following: • Be aged 17 to 21 • Have no addictions to alcohol or illegal drugs • Be engaged in, or about to become engaged in, a vocational/educational setting • Be open to the establishment of a savings account to prepare for ultimate discharge from the program • Be willing to meet weekly with a social worker for the duration of their stay Visitor, housekeeping, noise and financial rules are also established for the purpose of optimizing the TLP experience for all residents.537

536 Green Chimneys Children’s Services. (2006). Green Chimneys Children’s Services: Triangle Tribe Apartments Transitional Living Program resident handvbook. New York, NY: Green Chimneys Children’s Services. p. 2. 537 Green Chimneys Children’s Services. (2006). pp.4-7. Green Chimneys 111 No youth is discriminated against because of race, ethnicity, sexual orientation, gender identity/presentation, religious identity, socioeconomic status or most recent place of residence. Non-English-speaking youth receive assistance with translation by staff. Green Chimneys understands and espouses a Positive Youth Development philosophy538 to help youth create their own positive choices. We believe that effective programs have a focused and articulated vision with a broad spectrum of services and opportunities that are tailored to the needs and interests of young people. Moreover, our youth development philosophy recognizes, values and responds to the unique backgrounds and experiences that exist in the lives of the young people with whom we work. We provide a supportive, flexible environment for staff and volunteers and encourage a spirit of collaboration with other community-based programs. We believe that we can be a supportive atmosphere for young people and enhance caring and nurturing relationships among staff, young people, and their families. Green Chimneys understands that each youth has different experiences and that their reactions to these experiences will vary. To assist youth with this process, staff members work to help youth identify obstacles, and encourage them to partake in their own case planning and goal setting. Youth are motivated to expand their personal values in this process, enhancing self-responsibility and self-determination. Youth have a crucial voice in how the agency should care for them; they create their own individual service plans, complete with their own goals, and each client participates in monthly team meetings to assess their own progress on their goals. Extant research shows that youth who maintain a healthy connection to family or other stable adult influences have better long-term outcomes on a variety of measures, so an additional goal of ours is to strengthen families through encouraging youth to nurture familial relationships as well as offering family counseling to residents. A quality assurance The staff of our Green Chimneys New York City programs are survey is sent to youth vigorous advocates for and with youth. Our goal is to promote a upon departure from the feeling among young people that the staff and volunteers can be program to assure that trusted, and that they care about and respect them. This commit- youths’ needs were met ment to empowering young people permeates all of our New York- and to obtain feedback based programs. Creative approaches to problem-solving, including on the functioning and enlisting the help of youth to assist with major organizational deci- quality of the program. sion-making (i.e., hiring staff, proposal writing, and resident advisory board), help circumvent traditional professional and bureaucratic limitations in order to fully meet the needs of the youth and families with whom we are privileged to work. This client-organization partnership strengthens our organizational structure and invigorates our board and administrative leadership. A quality assurance survey is sent to youth upon departure from the program to assure that youths’ needs were met and to obtain feedback on the functioning and quality of the program.

538 Positive Youth Development is summarized as “helping young people to achieve their full potential” in order to reduce their risk of engaging in high-risk behaviors (www.ncfy.com/pyd/). Programs fostering a Positive Youth Development setting engage youth in leadership roles, empower them in program development and teach them to be active, responsible adults. LGBT Youth 112 Homelessness WHY IT WORKS: STATISTICS AND OTHER SIGNS OF SUCCESS Most housing programs for homeless youth measure success in a variety of ways. Funders or researchers often want to know how many discharges were to safe exits or to indepen- dent living situations. Program staff often consider many other variables to determine success. This section describes a few different measures of success for the first five years of the Green Chimneys transitional living program (TLP). Reason for discharge is one variable to consider when measuring success. In our case: • 57.5 percent of youth either completed the program or left on their own to pursue another option. • Just less than half were expelled from the program, mostly for repeated rule violation.539 • The average length of stay for those completing the program was 21 months.540 • The average length of stay for those leaving the program voluntarily was three months. • Some of these youth left to live with family members; two went into the military. Some youth who left the program decided that they were not ready for the responsibilities of transitional living. Those who left the program voluntarily with no plans comprised the smallest group, representing less than one percent of the population.541 However, even they stayed an average of six months. We can hope that while perhaps not ready for the particular demands of a transitional living placement, they will still have picked up some skills that will ultimately aid them in functioning as independent adults. Where youth go when they leave a program is often what interested parties consider the most concrete sign of success for that program. When they first enter the Green Chimneys TLP, many youth identify the goal of obtaining their own apartment in New York City. However, affordable housing is very difficult to find in New York City. Some youth eventually decide on room rentals. Many others will instead move into the residences of family members or friends. Since 2003, only one youth has exited the program without notifying staff. Excluding that client, we saw the following overall results: • 20 percent of our program’s discharged clients moved to an independent living situation. • 47 percent of the discharged clients moved to a private residence in which they were not the primary renter (i.e. homes of family members, friends or partners). • Two youth discharged with plans to move to a college residence but temporarily moved to a private residence before leaving for college. • 25 percent of the discharges were split among college, the military and the street. The final 18 percent were recorded as unknown and occurred during the first two years of the program’s existence.

539 We developed a graduated discipline system, which ensures that youth would need to break a rule or rules quite a number of times before they would be discharged for it. Less than 1 percent of these rule violations were drug related. 540 Early in the program, a number of youth overstayed the 18 month maximum due to a variety of factors, the most significant of which was the severe lack of affordable housing in New York City. 541 These were youth who disappeared without informing the program or said they were leaving but left no description of their plans. Green Chimneys 113 As part of the exit process, we encourage youth to provide us with information about what they learned while in the program through a standardized survey. Some of these “lessons” have included learning how to live with and communicate well with others and specific life skills such as budgeting, independence and being held accountable. While not a result measurable on any formal scale, staff members of the TLP team have also commented on additional outcomes. Youth learn that they are cared for, which improves their overall functioning and may well be the first time in their lives that they have truly believed that an adult had their best interests at heart.

CHALLENGES AND OVERCOMING THEM A major challenge for any transitional program is how to assess whether a client is appropriate for this level of service. Each program setting is a little different and not all assessment procedures may apply perfectly. The Green Chimneys transitional program is considered highly independent and therefore requires a high level of assessment upon intake. We have added a psychiatric evaluation to our application packet to make staff aware of potential mental health issues. We have also created an interview process for youth who are applying to the program to assess their level of social skills. This interview is conducted by the team working with the client, including the program director, the social worker, the life skills coordinator and the apartment counselor. The interview process reveals important issues such as punctuality, accountability, mental health status, interpersonal skills, and potential red flags such as anger/conflict issues and roommate concerns. It also gives the team the opportunity to ensure the client is fully aware of all rules and expectations. Candidates are not necessarily excluded from intake through the interview process. Potential issues are brought to the staff’s attention as areas to address once the young person is accepted for admission. Another challenge we have faced has been harassment in the neighborhoods. For the most part, there have been no serious incidents, but there has been some verbal harassment of clients on the street. We have dealt with this issue through education. We provided work- shops by the New York City Gay & Lesbian Anti-Violence Project to help youth understand what to do when harassed on the street. This helps youth well beyond their stay in the program and empowers them so that they do not feel helpless when faced with harassment. We discuss safe behavior with residents and encourage them to assess their surroundings.

EVALUATION: AGENCY AND PROGRAM Annual internal review and oversight of the program are done by the Program Services Committee of our board of directors. Data collection is the responsibility of the program director in consultation with a program evaluator. These and other data are measured against program objectives and expected results as part of the evaluation process of the Triangle Tribe Apartments. For any agency this information can also prove critical when seeking funding from potential donors or grantors who want accurate information to gauge program scale, scope and basic effectiveness. The following is a review of the evalu- ation and quality assurance tools we utilize to assess program effectiveness and to evaluate LGBT Youth 114 Homelessness compliance with program objectives and performance standards. • Weekly individual supervision of program director by senior staff. • Weekly individual supervision of program staff by the program director. • Weekly multidisciplinary team review and staff meetings—weekly staff meetings play a key role in the Triangle Tribe Apartments. Staff members use scheduled meeting time to assess progress toward objectives, evaluate the appropriateness of services and make programmatic adaptations/changes as determined by the needs of the target population. • Annual internal review and oversight of the program by the Quality Insurance Committee of the board of directors. • Program reports – The program director completes monthly program reports related to program objectives and the action plan. Semiannual program progress reports are also submitted to the federal Department of Health and Human Services’ Family and Youth Services Bureau (FYSB), as are annual continuation proposals that outline budgets and program planning. • Monthly financial report – The monthly income/expense statement is a critical fiscal management tool used by the program director and fiscal management to evaluate actual revenues and expenses against projections for individual programs. • Client feedback – We actively seek the suggestions, advice and ideas of the residents of this program at all times. The resident advisory board is used to gather feedback and aid in program planning. • Annual program planning/evaluation cycle – The Program Services Committee of the board of directors evaluates every agency program annually. • With the introduction of our new city funded transitional beds, allowing for program expansion, we are implementing a program-specific evaluation method. Every client who enters the program will be measured in eight subject areas within a month of intake and again at six months, one year, and just prior to discharge. These will be compared for changes over the course of a young person’s stay in the program. Data collection tools used to facilitate the annual evaluation of the maintenance of the quality assurance measures outlined above include individual client records, service record logs, monthly agencywide MIS instruments for service statistics and demographic data collection. In addition, we utilize aftercare surveys completed by former clients, quarterly documentation review of services rendered, and one-year post discharge contact and semiannual Runaway and Homeless Youth Management Information System (RHYMIS)542 submissions.

CONCLUSION Green Chimneys is committed to constant program improvement and will continually seek to ensure that high quality services are provided to at-risk LGBT youth.

542 FYSB’s Runaway/Homeless Youth Management Information System – a data collection tool which provides statistical reports on all clients seen by FYSB funded programs. Green Chimneys 115 Ozone House: Making every space a safe space BY MARY JO CALLAN AND MIA WHITE While some agencies choose to work exclusively with LGBT youth, not all programs do or can. For youth in these other programs, it is crucial that administrative, professional and support staff, as well as other clients, are on-board with the notion of the space being safe for everyone there. Ozone House, in Ann Arbor, Michigan, is one agency that has strived to create an LGBT-safe space for all clients and employees. Ozone House is an alternative nonprofit social service agency in Ann Arbor, Michigan that actively pursues the development of unique, high quality housing and support programs and services to help high-risk youth lead safe, healthy and productive lives. Each year, we provide services to more than 400 runaway and homeless youth, crisis intervention to over 1,500 youth, and youth development opportunities through our youth drop-in center to 900 young people. Additionally, we reach more than 2,000 youth through street outreach and provide educational programming to almost 4,000 youth and adults annually. Our youth development approach, with a focus on youth-centered, strength-based and outcome-driven services, has allowed us to be successful with the highest need youth and families. Through these services we strive to help youth build the confidence, skills, emotional stability and network of support they need to become healthy and productive adults. Created in 1969, Ozone House was one of only three organizations nationwide serving runaway youth. The agency began as a grassroots, community-based response to an influx of runaways coming to Ann Arbor, Michigan from around the country. Since that time, our agency has grown from a handful of volunteers operating out of the basement of a local church to one with nearly 40 paid staff. We have a diverse base of more than 40 active volunteers and interns and an engaged and committed board of directors, on which youth serve with full membership. During our first decade of operation, we saw a significant increase in the numbers of runaway and homeless youth. With increasingly complex and varied needs, it was clear that short-term crisis intervention services alone were not enough and that expansion of the services offered to youth was needed. Today Ozone House offers a full continuum of prevention and intervention services to runaway, homeless, and other high-risk youth ages 10 through 20 and their families, including: • Individual assessment and intake • 24-hour crisis intervention LGBT Youth 116 Homelessness • Intensive case management • In-home and agency-based family counseling • Individual and group counseling for youth • Emergency youth shelter • Miller House transitional living program • Basic needs support, including meals, clothing, personal care items, work supplies, transportation assistance and educational support • Permanent supportive housing • Substance-free activities • QueerZone: A group for LGBT and questioning youth • A youth drop-in center • Street outreach • Health care through an on-site health clinic • Youth leadership opportunities • Community education and outreach All of our services are provided with a commitment to best practices in the youth services field, including positive youth development and flexible, compassionate, comprehensive and responsive interventions. We are located in Washtenaw County, a racially and economically diverse area that is home to 341,487 people, including almost 75,000 youth. The main population center of Ann Arbor, where we are headquartered, is home to 114,498 residents.543 Ypsilanti, the county’s second most populous city, has 73,956 residents and is home to our drop-in center and street outreach program.544 Nearly 50 percent of the youth we serve come from the Ypsilanti area, the county’s most economically distressed and underserved community. Just less than 26 percent of individuals live below the poverty level compared to 12.4 percent nationally in a city that was once a booming automobile manufacturing town.545,546 Ypsilanti is now a community struggling to regain economic stability. Young people living in Ypsilanti face major chal- lenges and have very few resources. Substance abuse and related criminal and gang activity make many homes and neighborhoods unsafe. The high poverty rate and limited supply of affordable housing result in family conflicts taking place in overcrowded, overwhelmed and unstable households, leaving many young people with no safe haven when in crisis. Another 30 percent of our youth come from Ann Arbor. Although better known for its universities and cultural attractions, Ann Arbor also has many distressed neighborhoods

543 U.S. Census Bureau. (2000). Table DP-1. Profile of general demographic characteristics: 2000. Ann Arbor city, Michigan. Author. Retrieved September 10, 2006, from http://censtats.census.gov/data/MI/1602603000.pdf 544 U.S. Census Bureau. (2000). Table DP-1. Profile of general demographic characteristics: 2000. Ypsilanti city, Michigan. Author. Retrieved September 10, 2006, from http://censtats.census.gov/data/MI/1602689140.pdf 545 Ibid. 546 U.S. Census Bureau. (2000). State and County QuickFacts: Michigan. Author. Retrieved September 10, 2006, from http://quickfacts. census.gov/qfd/states/26000.html 117 and pockets of poverty. Though the median family income is $71,293, compared to $50,046 nationally, the poverty rate is higher than the national average.547, 548 A few basic statistics about our youth will provide a useful picture of those with whom we are working. In 2004: • 58 percent of youth served by Ozone House were female. • 46 percent were youth of color (primarily African-American). • 88 percent were from low- or very low-income families. In addition to poverty, the difficulties presented by our clients included: • Serious family conflict (98 percent). • Parental substance abuse or mental illness (55 percent). • Physical abuse or neglect (62 percent). • Sexual abuse or assault (31 percent). • Personal substance abuse (34 percent). • Prior involvement with the child welfare system (nearly 30 percent of older youth). Of the runaway and homeless youth that come to Ozone House, only a fraction leave home as a normative response to the conflicts brought on by adolescence. The majority come fleeing poverty or for more serious and often disturbing reasons. For instance, almost one-third are running from sexual abuse and two-thirds from physical assault or abuse. Two-thirds leave in order to bring attention to a parent’s alcoholism or drug abuse problem, or to leave behind the adult responsibilities forced upon them by an absent or mentally ill parent. Many youth, however, have not chosen to leave but are “throw- aways”—kids who are kicked out by parents who often have abused and/or neglected them and see the young person as the cause of family conflict that will go away along with the youth. Many of these parents are also overwhelmed by the challenges of adolescence, a young person’s drug use or abuse, or have rejected their child because of their sexual orientation, gender identity/expression or pregnancy. These young people are in need of services that address the serious family, social, emotional, educational and economic conditions that impair their safety, development and future well- being. Ozone House has designed a unique, flexible and comprehensive array of services that set the highest-risk youth on a path to long-term safety, health and success.

SAFETY, SUPPORT AND AFFIRMATION: DEVELOPING AN AGENCY CULTURE FOR EFFECTIVE WORK WITH LGBT YOUTH Since 1976, Ozone House has specifically tailored our services to be welcoming and sensitive to the needs presented by LGBT youth, adding a support group for LGBT and questioning youth, plus crisis intervention and counseling services designed to ensure a

547 U.S. Census Bureau. (2000). 548 U.S. Census Bureau. (2000). Table DP-1. Profile of general demographic characteristics: 2000. United States. Author. Retrieved September 10, 2006, from http://censtats.census.gov/data/US/01000.pdf LGBT Youth 118 Homelessness safe and affirming atmosphere to explore feelings, challenge internalized homophobia, and get vital support from other youth and informed adults. The vast majority of youth seeking Ozone House services neither identify as LGBT nor present issues related to sexual orientation or gender identity/expression. So, why are we contributing to this publication’s conversation about pro-LGBT service provision? The reality is that few agencies in the United States or elsewhere cater exclusively to LGBT clients. Therefore, it is critical that all agencies know how to effectively work with the LGBT youth they Since few agencies cater encounter. In order to be effective in our work with LGBT youth, exclusively to LGBT we must create a safe place for them amidst “straight” youth who are clients, it is critical that not always immediately knowledgeable and understanding of issues predominantly straight- related to their LGBT peers. These straight youth often present in serving agencies know crisis mode, with inadequate resources and a lack of physical safety, how to effectively and they are full of the assumptions, homophobia and ignorance of work with the LGBT the broader society around them. youth they encounter. We were asked to think about what an Ozone House contribution to this publication might usefully transmit with regard to our work as an agency working with predominantly straight youth. Several of our staff and clients were asked for their input. We decided to focus on the simple fact that Ozone House seeks to be a safe place for all youth. We do this by honoring and acknowledging the realities from which youth come, while allowing them the opportunity to envision and take steps to create their own path for the future. This truth led us to a natural conclusion: we should discuss what makes us welcoming or different from other organizations: namely, the culture that exists at Ozone House. While it is difficult to pinpoint and articulate what that culture is, we can offer Ozone House’s dedication to youth development, systems change, leadership development and specific strategies for working with youth as aspects that collectively work to foster this environment. In this section, we will focus on the strategies that Ozone House utilizes to develop our staff and volunteers to work effectively with LGBT youth. Most crucially, we do so with the firm conviction that any agency seriously seeking to work successfully with LGBT youth can adopt our philosophy and in turn help their clients feel safe, nurtured and respected. Ozone House pioneered a gay and lesbian youth support group in 1976, the first of its kind in Michigan. Similar to elsewhere in the country, gay and lesbian youth in Ann Arbor faced higher rates of homelessness and running away than their heterosexual peers. As continues to be the case today, LGBT youth in 1976 were more likely to experience rejection by family, in schools, and from peers and to be at risk for harassment and discrimination. At the time, we already had the reputation of being a radical, anti-establishment, youth- centered agency. The agency was created by the first wave of baby boomers, who reached adulthood and sought to help their younger cohorts escape the constraints of traditional social norms and authority. Though this reputation did not engender respect for the agency among most mainstream service providers, local funding bodies or parents, it did increase our credibility among the runaway, disconnected and marginalized young people we sought to reach. This included youth who identified, or struggled to identify themselves, as gay or lesbian.

Ozone House 119 What was then identified as a gay and lesbian youth support group was open to any young person who wanted to come. Youth who were receiving other types of support from Ozone House were encouraged to attend and to spread the word to other youth in the community. Over time, the group was attended mostly by Ann Arbor-area youth who sought connection to peers, affirmation from adults, and a safe place to explore what it meant to be LGBT in a straight world. The group, which provided social support with adult facilitation, continued to exist relatively unchanged for over two decades. However, during the 1990s group attendance began to decline. Focus groups and feedback from youth who had historically attended the group indicated that Ann Arbor was becoming—relatively speaking—a community accepting of LGBT youth and increasingly sensitive to LGBT issues in general. Support groups were less relevant and activity-based groups were needed, especially because Ann Arbor youth had at least a few resources for LGBT youth. At the same time, youth from other areas of Washtenaw County continued to feel isolated and wanted a safe venue through which to explore their feelings and experiences as LGBT youth. Unlike Ann Arbor, other communities throughout the county continued to provide a dearth of activities and safe venues for LGBT youth. As a result, we have reached out to other areas of the county where LGBT youth continue to feel and experience isolation. This expanded focus has succeeded in helping a broader segment of the community’s youth access much-needed support. However, the lack of transportation and the lack of parental knowledge or acceptance made attending our Ann Arbor-based group difficult. This difficulty was especially pronounced for youth in Ypsilanti, the other major population center within Washtenaw County. Ypsilanti has the county’s highest concentration of African-Americans and a higher proportion of people living in poverty. Its origins are as a blue-collar, automobile and manufacturing town with less liberal social norms. In general, youth from Ypsilanti do not feel comfortable traveling to Ann Arbor, which is seen as too white, too rich, unwelcoming and, to some, “too gay.” Today, Ozone House is the host of QueerZone, a supportive social group. In order to maximize our ability to engage those LGBT youth who lack access to the resources offered in Ann Arbor, the group is convened at our youth drop-in center in Ypsilanti. In addition to a support group, the agency offers crisis intervention and other counseling services specifically geared to be welcoming and sensitive to the needs presented by LGBT youth. They are designed to ensure a safe and affirming atmosphere, explore feelings, challenge internalized homophobia and transphobia, and get vital support from other youth and informed adults. The support group from 30 years ago provided a foundation and launching point for our services to branch out into more structured and professionally supported programming.

APPROACH TO SERVICES Our tag line at Ozone House is “there is a safe place.” Living up to that message means committing to a space recognizably different from external discriminations. Being acknowledged as safe space for LGBT and straight young people has been a mark of LGBT Youth 120 Homelessness our success. To fulfill our mission of working with young people to help them lead safe, healthy and productive lives, our prevention and intervention services are designed with a positive youth development, empowerment, youth-focused and strength-based approach.

DEVELOPING YOUTH & CAPITALIZING ON THEIR STRENGTHS Although we have not always used the term, Ozone House has always followed a “positive youth development” orientation in its design and delivery of services. This approach has two elements to it. The first element is the understanding that young people need care, encouragement, opportunities and protection from abuse in order to make a successful transition to adulthood and to reach their full potential for growth and happiness. The second element is to help youth build upon that potential. We have always firmly opposed a deficit model of service, in which clients are assessed and labeled in terms of their problems and weaknesses. Rather, we use a strength-based approach that focuses on a youth’s resilience, assets and capabilities.

EMPOWERMENT Ozone House has a long history of providing services that help youth learn how to help themselves. When Ozone House was created, many traditional agencies denied youth the opportunity to take part in decisions regarding their own future. As an alternative community-based agency, we sought to ensure that a youth’s right to self-determination was respected and fostered. This philosophy has not only helped to give us credibility among youth, it has helped us to engage and work with families. Families, as well as youth, are considered partners in service rather than just recipients. As partners, they are treated as experts on their own situation and encouraged to take an active part in assessing and prioritizing their needs and choosing a course of action. This approach diverges from the more traditional “help” that most youth and families have received, where the worker—be it therapist, probation officer or social worker—is the expert, seeking to resolve the presented problems by directing and informing the family rather than enlisting them to identify and enact their own solutions.

RESPONSIVENESS Partly fostered by our organizational culture, the staff has a unique dedication to deliv- ering flexible and responsive services. We believe that without this dedication, high risk youth and families would not be adequately served. This commitment is demonstrated not only in the types of services that we provide but in the way they are provided. Staff members know and respect the clientele they are working for and are always encouraged to advocate on their behalf. All services are free, can be accessed any time of the day or night, and never require a referral from another agency or adult.

HOLISTIC APPROACH It is imperative to take a holistic approach that will not only intervene in a crisis, but prevent future problems. To achieve this goal, Ozone House works to address the social, emotional and physical needs of youth at the individual, family and community levels.

Ozone House 121 STRATEGIES FOR ACHIEVING OUR MISSION While not an LGBT-specific organization, Ozone House has a reputation as being a safe space for LGBT youth. We utilize a variety of strategies to create and maintain this reputation. Beyond these strategies, our distinctive history leaves us well positioned to manage the delicate balance of affirming LGBT youth while engaging straight—and often homophobic and transphobic—youth from throughout the community. The strategies utilized include:

COMMITTING TO AN ALTERNATIVE CULTURE The leadership of Ozone House is committed to creating and maintaining an agency culture that is safe for all youth and adults. This simple commitment means that we acknowledge and work through the reality that Ozone House is, in some respects, a “false” environment that cannot currently be expected within most other areas of life and experience for the youth served. It also means that we face potential challenges related to funding and engagement of the straight community that currently come with being identified as a LGBT or LGBT-friendly organization.

ENSURING PHYSICAL MANIFESTATIONS OF SAFETY LGBT youth know upon seeing Ozone House that they will be recognized and welcomed. Our windows and front entrance display rainbow and pink triangle stickers. Posters and artwork represent all varieties of young people, including LGBT youth, and postings about agency rules specifically prohibit homophobic, transphobic and anti-LGBT language. Even in a relatively liberal community such as Ann Arbor, such explicit references to and representations of LGBT youth are rare. In the broader community, especially in neighboring cities and more rural communities throughout the county, these symbols and what they represent are still taboo.

PROFESSIONAL DEVELOPMENT We provide orientation and ongoing training, as well as other important professional development opportunities, to our staff and volunteers. An important piece of all of these activities involves examining and “unlearning” the personal bias and baggage we bring from the world into our work. In many ways—as it should be—the professional development undergone by staff is parallel to increased insights and personal growth undertaken by the youth we seek to help. The conceptualization and articulation of this “parallel process” helps to motivate staff and volunteers to grow as much as the vulnerable youth we serve.

FORMALIZED TRAINING We provide formal training opportunities for staff and volunteers at all levels of the orga- nization. These trainings are conducted individually and in small groups, both within and outside of the agency. Through workshops, expert consultants and presenters, published written materials, and video resources, staff and volunteers gain an understanding of how best to work with LGBT youth. The amount and sophistication of structured training and materials presented depends on the role of each staff member and volunteer within the agency; the more contact with youth, the more training. Training topics include: LGBT Youth 122 Homelessness • Queer youth at Ozone House: A history and overview. • Decoding the LGBT alphabet: Basic terms and definitions associated with queerness. • Normalizing: How to respond to a young person’s experiences of experimentation and questioning. • Offering support and affirmation: How to respond when a young person comes out. • Stage theory (including LGBT identity development). • What works: Finding out about serving queer youth through youth video and panel testimonials. • Gender roles and expectations. • Internalized racism and homophobia: Challenging our own assumptions and experiences. • Hostile language: How to talk with straight youth about homophobic remarks.

EFFECTIVE SUPERVISION Beyond a theoretical understanding of the many issues that come up in working with youth and the exposure and learning that occurs in structured learning activities, we help direct services staff and volunteers to apply what they have learned. Through weekly one-on-one clinical supervision meetings, direct service staff members are offered additional opportuni- ties to examine how the “self they bring to work” impacts or is impacted by specific youth. These weekly meetings help to gain valuable insights, emotional support, and concrete ideas to improve practice with youth, including LGBT youth. In addition to weekly meetings, staff and volunteers have access to supervisory staff any time a need or question arises.

SOCIAL LEARNING As in the broader society, social learning is the most powerful way to convey culture at Ozone House. Staff and volunteers have the benefit of numerous role models who understand and are competent in contributing to an agency that is safe and affirming of LGBT youth. These role models are both LGBT and straight, adult and youth, with varying degrees of experience in the agency.

TAKING THE LEAD FROM YOUTH Another aspect to our services that sets us apart is that we are youth-centered. One of our social workers described one of her earlier placements working with adolescent popula- tions as one in which people were funneled through an assembly line of service with a 40-minute intake followed by precisely timed 35-minute sessions no more than twice a week. It seemed that there was more invested in the process of administering the services provided to youth than in actually meeting their needs. Here, staff and volunteers seek to ensure that all youth have substantive control over the services and activities in which they participate. Each youth’s experience drives individual- ized assessment and service processes, including the frequency, type and scope of support offered. Agency staff and volunteers are trained to recognize, honor and capitalize on the strengths developed by youth in response to contexts in which they exist. Further, we learn practice content from our clients and incorporate that knowledge into practice. For example, what better way to learn about resources in the community than Ozone House 123 from the clients who use them? We learn which agencies and other area resources are perceived as homophobic and/or transphobic and unwelcoming and which are safe and accepting of LGBT youth.

MAXIMIZING TEACHABLE MOMENTS Informality is woven into the fabric of the agency’s culture, while maintaining professional expectations of our services. In our residential programs and our youth drop-in center, young people can hang out casually or participate in activities that create opportunities for discussions with other youth and with staff. These impromptu exchanges are often peppered with culturally prevalent comments like “that’s gay” or “fag,” and we treat these remarks as opportunities for staff and volunteers to challenge the language and thinking of youth. We have an agencywide policy against hostile language; this policy protects against threats or unsafe situations and also holds an expectation of challenging discriminatory language that is commonplace in youth culture. Working with adolescents means that we cannot expect teens never to swear, act out or discriminate against each other. The difference is that when these situations happen, we challenge those statements with a supportive—not disciplinary—approach. We want to help young people think about how they want others to perceive them, how they want to perceive themselves, and how else they might be able to express their thoughts and views without degrading another youth or diminishing their contribution to our community.

RECRUITING LGBT STAFF AND VOLUNTEERS Ozone House has LGBT staff and volunteers at all levels of our organization. Clients have articulated to us that this is a primary reason why they feel different at Ozone House. Clients report that, unlike many gay-straight alliances (GSAs), which are often led and populated by allies, we have achieved a balance between allied and LGBT staff and volunteers. Straight staff and volunteers certainly can and do play a crucial role in creating safety and support for LGBT youth. However, as with other marginalized populations, visibility and representation in personnel is one of the most crucial and immediate ways to convey a level of We simply do not hire safety or comfort to our clients and their families. people who indicate a While we do not ask people to disclose their identities, we do specifi- lack of understanding cally ask questions on our applications for our volunteer and staff and acceptance of that probe for LGBT sensitivity. We simply do not hire people who LGBT youth. indicate a lack of understanding and acceptance of LGBT youth. For example, statements including “sexual preference,” “choice” or the “gay lifestyle,” or discomfort saying the words “gay,” “lesbian,” “bisexual” or “transgender” raise red flags about the staff or volunteer candidate. We would not hire anyone who seemed to be a closet racist, and we apply the same principle regarding homophobia and transphobia. We expect and ask for better than what exists readily out in the rest of the world. Just because that is “how it is” externally by no means defines how it should be. We strive to create a community and environment worthy of our clients regardless of whether or not that is a reflection of the hegemonic culture. The agency’s board of directors is the governing body of Ozone House and is responsible for ensuring that agency policies and practices are responsive and effective. As in other volunteer roles, we intentionally recruit members who identify as LGBT or allies. All LGBT Youth 124 Homelessness potential board members are provided with ample information about what Ozone House does, how we do it and whom we serve. LGBT youth are highlighted as one of the four youth populations that Ozone House makes special efforts to serve, and potential members of the board must indicate comfort with and support for all youth served.

ADVOCACY AND SYSTEMS CHANGE When working with runaway, homeless, and at-risk youth, we are talking about working with a marginalized population and intersecting identities within it. Being able to navigate the agencies and institutions that exist for young people is essential in the social work environment. However, our staff is also prompted and challenged to be aware of the larger sociological systems that affect the youth we serve. This is part of the systems change perspective fostered throughout our agency. We are not interested in creating more barriers for our clients. This means that we must be able to see, learn and acknowledge where they already exist. Structurally, as mentioned previously, there are gaps in the systems that youth need to access. The education, legal, health and foster systems are all designed with the expectation that an adult (usually a parent or guardian) will facilitate access when a youth needs these services. This is clearly a barrier for young people who have run away, are homeless, have parents that work more than one job, have parents who are emotionally unavailable or neglectful, or are otherwise on their own. We attempt to bridge these gaps by advocating for youth and also making services accessible to young people regardless of their situation. Our space is intentionally void of some basic impediments to providing service. For example, youth are able to become clients on their own, with or without parental involve- ment. Our services are free, voluntary and confidential, which aids in maintaining accessibility for all clients. We also realize that though clients may self-identify as LGBT, their sexual orientation At one residential or gender identity may not be the presenting issue or concern for placement, LGBT teens them. We have no need or desire to unnecessarily make their sexual and those suspected orientation or gender identity the defining issue. Rather, we allow of being LGBT were them to articulate the services they want or need. made to wear orange Beyond the intrinsic barriers faced by all runaway and homeless jumpsuits to alert staff youth is the added layer of societal oppression included in racism, and other residents. sexism, homophobia and transphobia. These barriers take shape in not only the structural design of some services, but also in good old fashioned discrimination. Staff and volunteers at Ozone House are continually struck by the recounting of discriminatory experiences of the youth with whom they work every day. LGBT clients in particular have recounted several instances of maltreatment by other youth-serving agencies charged with providing support and protection. For example, at one residential placement, LGBT teens and those suspected of being LGBT were made to wear orange jumpsuits to alert staff and other residents. At another transitional housing placement, staff removed the bedroom door of an out gay youth, supposedly to ward off any homosexual behavior. The second bed in the room was left empty, with other residents warned that if they misbehaved they would have to share the room with the “gay kid.” As horrific as these two examples are, both took place at state-licensed and -funded child welfare agencies.

Ozone House 125 REDUCING AND ELIMINATING BARRIERS TO SERVICE In addition to ensuring that Ozone House is responsive to the needs of LGBT youth, agency staff and volunteers work to reduce and eliminate barriers in other agencies and institutions with which youth interact. We do this through:

CASE-LEVEL ADVOCACY Each day staff work with youth who are unfairly denied needed services like enrollment in school, mental health and substance abuse treatment, and protection from abuse and neglect. Therefore, much time is devoted to advocating with agencies and systems such as community mental health systems, Child Protective Services and area schools so that specific youth can access needed support. This advocacy comes through telephone calls, letters, and formal complaints and grievances and by accompanying youth to appoint- ments, hearings and similar proceedings.

POLICY-LEVEL ADVOCACY While advocating for change for individual youth is critical, we recognize that in order to effect lasting and consistent change for young people, the systems that have broken down must be changed. To this end, our administrators, service staff, and board of directors work with local and statewide policy-makers to change policies and systems that negatively impact youth.

AGENCY POLICIES & PROCEDURES Institutionalizing a culture of openness in which every person feels safe and free to be them- selves poses many challenges, even for a relatively small organization. We have developed policies and practice bodies to address issues of inclusion, emotional and physical safety, and cultural competence in order to transmit an expectation of appropriate and safe behaviors and relations. To this end, agency personnel and operating policies and procedures include specific language about and protections for those who identify as LGBT.

AN INCLUSIVE DEFINITION OF “FAMILY” All agency literature, including our policies, uses inclusive language about families. We use the terms partner or spouse rather than husband or wife in our staff and volunteer poli- cies. We ask youth to define family and their place in it rather than ascribing traditional roles and legal definitions. For staff, family leave is provided to care for a new child or an incapacitated family member—including a same-sex partner—regardless of legal relation- ship. Further, health benefits are provided to employees and their spouses. For straight staff this means that they must be married. For LGBT staff, who cannot legally marry a same-sex partner, this means registering for a domestic partnership certificate from the City of Ann Arbor, which extends this opportunity without regard to residency.

A HOSTILE LANGUAGE POLICY Staff members distribute the Hostile Language Policy to all potential clients and require their written agreement to comply with the policy. Many young people do not formally become our clients. In other words, they do not seek ongoing services from Ozone House, but instead participate in youth development opportunities and supportive settings. LGBT Youth 126 Homelessness Nevertheless, we make every effort to familiarize all visitors to our facilities with the Hostile Language Policy by displaying it—or operational statements about it—prominently in our buildings. The policy reads: We believe in the inherent worth and dignity of all people, and seek to ensure that youth experience Ozone House as a safe place, free from bigotry and injustice, and where each person is respected and affirmed. To this end, we commit ourselves to addressing hostile, discriminatory, and anti-social remarks and behavior that threaten the safety of youth, staff, and others. Like all our work with youth, we will address these behaviors in a caring, patient, and non-judgmental manner with the goal of creating internalized awareness and change. Because derogatory terminology targeted at LGBT people is ubiquitous in the culture and in the community in which we are located, our staff generally spends a disproportionate amount of time addressing hostile language related to LGBT issues. All staff members are trained and expected to address inappropriate hostile language, regardless of their own sexual orientation or gender identity. Beyond addressing simply the vocabulary of preju- dice, homophobia, transphobia and heterosexism, staff members spend time discussing the implications of violating the hostile language policy relative to maintaining a safe space for all youth. The staff’s motivation, rather than strident rule enforcement, is always oriented toward providing opportunities for youth to develop their communication and social skills and preserving the integrity of the environment.

POLICY AND PRACTICE BODIES We are committed to maintaining a diverse workplace in which differences are respected and appreciated. Having such an atmosphere helps to ensure that youth of all ethnic and racial backgrounds, socioeconomic backgrounds, sexual orientations and gender identities/expressions feel safe and receive high-quality services. This diversity is achieved through an aggressive Affirmative Action and Diversity Policy that guides employment practices; employee, board member and volunteer recruitment; training; service design and delivery; and the physical environment. The Agency Committee on Affirmative Action & Diversity (ACAAD) is a standing policy committee that focuses on ensuring that Ozone House is diverse and culturally competent. The committee creates and monitors goals related to hiring and retention of diverse staff, works with the board to create similar goals for agency leadership, coordinates trainings for agency staff and volunteers to ensure that services are delivered in a culturally competent manner, and provides a forum for staff to grow personally and professionally through discussions and activities related to race, power, sexism, homophobia and trans- phobia. ACAAD addresses all aspects of structural racism, homophobia, transphobia, sexism, and classism in our services, as well as methods to navigate and advocate within systems characterized by institutional homophobia, transphobia and heterosexism. Often, youth must be involved with potentially hostile systems—such as law enforcement, juvenile detention or child welfare. We are committed to both providing a counterpoint to those services and to advocating for systemic change within them. ACAAD focuses its work on four specific populations of

Ozone House 127 youth who seek opportunities, support and services: African-American youth, multiracial youth, economically disadvantaged youth and LGBT youth. ACAAD is also charged with ensuring that staff and volunteers receive training and other growth opportunities so that services are delivered in a culturally competent manner. Diversity in Action (DIA) is a project- and action-oriented body with monthly meetings. Each meeting has a chosen diversity topic, and participants bring one item—reading, artwork, guideline, idea—that is representative of that topic. Information for each diversity topic will be distributed throughout the agency and all staff members are requested to incorporate the information into their work each month. DIA meetings, case reviews, team meetings, and supervision are venues in which each staff member is supported to address their own biases and learn new ways of working with youth and families of any background.

OUTCOMES AND EXPECTED RESULTS All of these institutional norms promote a positive and healthy environment, but it is important that we are able to determine the extent to which we have been successful in reaching our goals. The following are the specific measurable outcomes we are constantly pursuing.

OUTCOME 1: SAFETY FOR RUNAWAY, HOMELESS AND HIGH-RISK YOUTH Ozone House exists to ensure that runaway, homeless and other high-risk youth have access to needed protection, safety and support. This includes LGBT youth, who are overrepresented among the population of homeless youth nationally. All agency efforts are aimed at assisting young people to achieve and maintain: • Physical and emotional health. • Stable employment. • Safe, stable housing. • Consistent, reciprocal support from people who care about them. For LGBT youth who are homeless, have run away, or are at risk for these things, we offer support and assistance in all of the areas mentioned above through the provision of individual and family counseling, supportive housing and shelter, job support, and case management and advocacy. We evaluate the effectiveness of these services by tracking the changes for youth from service entry to exit in the following areas: • Maintenance of safe housing. • Ability to manage relationships and settings where there is physical safety from harm. • Ability to develop and maintain a reciprocal support network—including family when possible—in which emotional safety and caring exists. • Maintenance of employment commensurate with financial need. LGBT Youth 128 Homelessness Impact is also measured after youth finish receiving our services by conducting follow-up interviews at 90, 180 and 365 days. These interviews track the youth’s housing status, employment, legal system involvement, family relationships and general quality of life. In addition, we conduct focus groups and satisfaction surveys to gauge our effectiveness in engaging and supporting the youth with whom we work.

OUTCOME 2: EMOTIONAL SAFETY FOR LGBT AND QUESTIONING YOUTH Beyond the aims described above, we utilize the implementation strategies described previ- ously to ensure that LGBT youth feel safe, supported, and affirmed while in our care or space, and while working with agency staff and volunteers. Feedback on the effectiveness of our services to LGBT youth, including their level of comfort while at Ozone House, is gathered through satisfaction surveys and focus groups.

OUTCOME 3: CULTURAL COMPETENCE The third expected outcome of our efforts to provide a safe place for LGBT youth is a part of the larger goal of creating a culturally competent staff and volunteer base and, through this process, a culturally competent organization. By definition, cultural competence is a set of congruent behaviors, attitudes, structures and policies that come together to work effectively in intercultural situations.549 It requires that organizations and their personnel have the capacity to: • Value diversity • Conduct self-assessment • Manage the dynamics of difference • Acquire and institutionalize cultural knowledge • Adapt to the diversity and cultural contexts of the individuals and communities served At Ozone House, striving toward cultural competence is a difficult process. This is due in large part to our struggle with the assumption that a social work, youth develop- ment-based, “we do good work” kind of organization should not have issues related to internalized racism, classism, homophobia, fear or other cultural debris. We strive to work through these struggles by implementing the strategies discussed previously. We recognize that cultural competence is a developmental process that evolves over time and that we must continuously evaluate our progress to ensure that we are growing as an agency and as practitioners within it. We do this by: • Completing a staff and board demographic survey that tracks the level of our success in hiring and retaining staff and volunteers who come from one of the population groups identified by ACAAD, including those who identify as LGBT. • Completing the Agency Readiness Index: A Self-Assessment and Planning Guide to Gauge Agency Readiness to Work with LGBT Youth (ARI) developed by the National Network for Youth.550 This instrument challenges the agency to meet rigorous expec-

549 Cross, T., Bazron, B., Dennis, K., & Isaacs, M. (1989). Towards a culturally competent system of care: A monograph on effective services for minority children who are severely emotionally disturbed. (vols. 1) Washington, DC: Georgetown University Child Development Center. 550 For more information, see http://www.nn4youth.org/site/PageServer?pagename=publications_list Ozone House 129 tations for readiness to work with LGBT Youth and is designed to be completed by everyone involved with Ozone House: youth, families, volunteers, staff and members of the board of directors as well as referral sources. • Administering and analyzing training workshop evaluations and pre- and post-tests. • Administering and analyzing an annual staff satisfaction survey that includes a variety of questions about agency culture, comfort of the agency for staff and ability to reach and serve youth of color, queer youth and other special populations.

CONCLUSION As an agency that does not work exclusively with LGBT youth, we have embraced our responsibility to provide safe spaces, programming and services for all underserved youth in our community regardless of sexual orientation or gender identity/expression. Working in an immediate environment that is essentially liberal, but within a broader society that is far more conservative and hostile to all manner of “differences,” we endeavor to live up to our responsibility as protectors and promoters of the interests of all youth in need. We have achieved success in many ways and believe passionately that the right team of people can, with commitment and thoughtfulness, create an organizational culture that can help any organization do a better job serving LGBT youth.

LGBT Youth 130 Homelessness Urban Peak: Working with homeless transgender youth in a shelter environment BY SUSAN BOYLE Urban Peak was founded in 1988 in response to growing concern among residents and businesspeople in the Capitol Hill neighborhood of Denver, Colorado about the increasing numbers of homeless youth. Since that time, we have dramatically expanded our services to meet the changing needs of homeless youth. What began as a drop-in center near the corner of East Colfax and Pennsylvania became a shelter in a church basement. In 1998, the We assist homeless agency constructed and opened a 40-bed shelter where youth are and runaway youth to able to access a full continuum of services. That same year, the permanently exit street Urban Peak Housing Corporation was founded for the purpose of life and we provide developing affordable housing options for youth. In late 2000, at at-risk urban youth the request of community providers in El Paso County, we opened with a safe place to be Urban Peak Colorado Springs (UPCS). The entire community creative, to enjoy their celebrated a long-time goal in December 2004 with the opening of youth and to mature the only adolescent shelter in El Paso County. into productive adults. With the 2003 merger of Urban Peak and The Spot Youth Center, Urban Peak now provides an array of services for homeless and runaway as well as youth at risk of being homeless and has become a leader in youth services on the local, state and national levels. Urban Peak works with homeless and runaway youth between the ages of 14 and 24 in Denver and Colorado Springs, Colorado. In the past year, 79 percent of the youth served were from the seven-county Denver metro area, with 41 percent of that number from the City and County of Denver. Other demo- graphic information about the Urban Peak Denver client population over the past fiscal year include the followng: Fifty-six percent identified as male, 43 percent as female and 3 percent of youth identified as transgender. Half of the youth were Caucasian, 16 percent were Latino/a, 19 percent were African- American, 11 percent identified as multiracial, 3 percent were Native American and 1 percent were Asian-American. Urban Peak’s mission is to help young people overcome homelessness and other life challenges by providing safety, respect, essential services and a supportive community, em- powering them to become self-reliant adults. Our goal is for young people to acquire

131 the abilities and confidence to become responsible, self-sufficient adults who are able to realize their full potential. We do so by offering outreach, safe shelter, transitional housing, education and employment programs, medical care, mental health and substance abuse counseling, creative outlets, and recreational and youth development activities. Urban Peak’s primary objective is to build trusting relationships with youth in order to guide them to a better future. Of the 874 youth served at Urban Peak, 55 percent permanently left the streets.

INTRODUCTION & OVERVIEW: THE CHALLENGE OF MAKING SPACES SAFE FOR TRANSGENDER YOUTH

While many shelters are aware of the particular needs of gay and lesbian youth (the higher- profile portion of the population), far too few are working effectively with youth who identify as transgender. As much as 2 percent of the homeless youth population we serve self-identifies as transgender, As much as 2 percent but often the services available do not meet their needs. And, just of the homeless youth as self-identification as gay or lesbian is underreported because population we serve self- individuals do not want to label their orientation or are fearful of identifies as transgender. the consequences of doing so, because of fear or uncertainty many transgender youth avoid coming out. The goal of this chapter is to outline how to work with youth identifying as transgender in a youth shelter environment. The objectives are to educate programs on terminology, the intake process, the education needed for staff and clients, and how to implement an effective procedure to eliminate barriers to serving this population.

WORKING WITH TRANSGENDER YOUTH: BUILDING TRUST AND MAINTAINING A SAFE SPACE Many youth identifying as transgender are rejected by their family, Transgender youth come friends, schools and communities and ultimately end up on the to a shelter space with streets. Because one needs identification to be employed and because the hope that it will be transgender youth are unlikely to have ID that matches their name and gender identity or expression, they face discrimination in different; that you and employment. Without employment, many youth resort to sex work your staff will understand in order to survive on the streets. Sex work puts them at further them and their needs, risk of exposure to sexually transmitted infections, HIV/AIDS and and that you will help hepatitis. Many youth also engage in drug use in order to escape the them live openly, pain they feel inside. proudly and safely. By the time they reach a shelter, transgender youth often have experienced abuse, neglect, substance use, mental health crises and discrimination by employers, and many have been asked to leave other facilities because of their actual or perceived sexual orientation and/or gender identity. Many have had negative interactions with adults and authority figures who deny them the right to live their lives as they feel they are. They may trust only themselves and those in similar situations. LGBT Youth 132 Homelessness The only way to serve these youth and to have successful outcomes is to ensure that they receive wholehearted support from agency staff. Anything less than a solid support system will hamper their ability to move forward with their lives. Building trust is essential. Transgender youth come to a shelter space with the hope that it will be different; that you and your staff will understand them and their needs, and that you will help them live openly, proudly and safely. As service providers we must create an environment that is welcoming to all; an environment that accepts the youth for who they are. Transgender youth are looking for acceptance and understanding, for safety, and to be guided to independent living while being allowed to be who they feel they are. Not allowing them to identify as who they are interferes with being able to enjoy their youth and to mature into productive adults. Regardless of what type Regardless of what type of services a shelter is providing, each shelter of services a shelter is needs a policy on how to serve transgender youth, even if only a providing, each shelter small minority of clients self-identify as transgender. Provision of needs a policy on how to street outreach, access to a drop-in center, emergency or transitional serve transgender youth, shelter, case management, employment and education advising, even if only a small medical care, mental health counseling, housing, testing, food and minority of clients self- basic needs support should not be dependent on a client’s sexual identify as transgender. orientation or gender identity. Shelters should be classified as “safe zones” and have the potential to respond to the needs of every young person who needs and seeks out help. Safe zones must be places youth can access without worrying about their sexual orientation or gender identity, their race or their life experiences negatively impacting their chances of getting the help and support they need.

SEX AND GENDER IDENTITY: TERMS AND DEFINITIONS In order to work effectively with young people who identify as transgender, it is important to have a basic understanding of their communities and a knowledge of appropriate terms. This list provides some basic definitions,551 clarifies some misconceptions and introduces important issues to remember when speaking with trans-identified people in English. • Transgender (trans): An umbrella term for people whose gender identity, expression or behavior is different from those typically associated with their assigned sex at birth, including but not limited to transsexuals, cross-dressers, androgynous people, genderqueers and gender nonconforming people. Transgender is a broad term and is good for providers to use. • Gender identity: A subjective, but continuous and persistent, sense of ourselves as male, female or another gender. For transgender people, birth-assigned sex and internal sense of gender identity or expression do not match. Since gender identity is internal, one’s gender identity is not necessarily visible to others. • Gender expression: How a person represents or expresses their gender identity to others, often through behavior, clothing, hairstyles, voice or body characteristics.

551 Many of these definitions are based on or borrowed entirely from Mottet, L. & Ohle, J. M. (2003). Urban Peak 133 • Two-spirit: An individual who has a hold on two spirit worlds. This term is an English translation of a concept present in some Native American cultures that an individual can express or exist in both masculine and feminine realms. • Transition: The period during which a person begins to live as their new gender. Transitioning may include changing one’s name, taking hormones, having surgery, or changing legal documents (e.g. driver’s license, Social Security number, birth certificate) to reflect their new gender. Too often, access to hormones is not covered by insurance, and coverage for gender reassignment surgery is even more rare. • Intersex: People with intersex conditions are born with sex chromosomes, external genitalia, or an internal reproductive system that are not considered “standard” for either males or females. Doctors perform surgery on one or two babies per 1,000 births in a misguided effort to “correct” ambiguous genitalia. Although being intersex and being transgender are distinct, some intersex people identify as transgender if they were assigned one sex at birth but transition to the other later in life. • Cross-dresser: Someone who dresses in clothing and affects mannerisms generally attributed to the opposite sex. However, cross-dressers do not necessarily identify differently than the gender they were assigned at birth. • Transphobia: The fear or hatred of transgender, transsexual, or gender-noncon- forming people.

Guidelines For Providing Shelter Services to Transgender People The following guidelines were developed to assist shelters in Denver to serve transgender clients in a respectful and nondiscriminatory manner:

• Written policies and procedures that guide shelter staff will increase the likelihood that clients will be admitted appropriately each time a transgender person presents for shelter. • Regular training for staff should be provided to maintain a safe environment for transgender residents. • Transgender individuals should be accepted into established shelter services. • Residents who identify as male or as female should be placed in the appropriate shelter space without further questioning about gender identity. • Residents who identify themselves as transgender should be admitted to their preferred shel- ter space. • Unisex bathrooms and private shower space can be helpful for transgender residents but are not required. Transgender residents should not be forced to use private bathroom and shower spaces. • It is not acceptable to provide gender-appropriate services only to those transgender people who are post-operative and/or on hormones. This practice is economic discrimination because most people who are homeless cannot access hormones and surgery. • Legal gender changes and identification cards cannot be relied upon for determining appro- priate shelter space because in Colorado and many other states, it is not possible to obtain a legal gender change unless one is post-operative.

LGBT Youth 134 Homelessness BASIC GUIDELINES FOR CREATING A TRANSGENDER YOUTH-FRIENDLY SHELTER There are various actions that need to be undertaken to change the environment at a shelter to become transgender supportive. This can be conceptualized in two parts: devel- oping a transgender supportive staff and developing proper procedures and policies.

DEVELOPING A SUPPORTIVE STAFF To develop supportive staffs, an agency must focus on both hiring and training. Ideally, the makeup of agency personnel reflects the population served in an organization. If an agency serves a wide array of youth, the agency should employ individuals that reflect the ethnicity, race, and sexual orientation and gender identity of the population served. Potential employees who express prejudice or discrimination should not be hired. Potential employees should when they walk in the door understand the basic array of concerns transgender youth have, and they should be open to learning more. Some agencies have found it helpful to have a point person to work with youth who identify as LGBT and/or to serve as a resource for other staff members who are less familiar with LGBT youth. Recruiting employees with specific experience working with LGBT populations is essential. Agencies need to hire LGBT advocates who are familiar with resources in the community and with the struggles this population experiences in the world beyond the shelter’s walls. Agencies need to provide all staff members with ongoing trainings about established and emerging best practices related to working with youth identifying as LGBT. These opportunities provide outlets for employees to be provided with practical guidance as to how best to work with this population. Just as crucially, training provides an outlet for employees to engage in discussions about a topic that they might readily admit to being uncomfortable with and to provide a safe place for employees to ask questions without being judged. If the atmosphere is such that acknowledging uncertainty or discomfort about certain topics among the staff is not encouraged, then the likelihood of incomplete services and support being rendered to transgender youth increases.

DEVELOPING SUPPORTIVE POLICIES The second aspect of creating a supportive shelter entails modifying existing policies and adding new policies relating to transgender clients. These policies must be written down and made accessible to all staff when a question arises, as they inevitably will even among very well-trained staff members. As part of the commitment to fostering a safe and welcoming environment, each agency must be committed to supporting staff members in navigating challenging situations. Employees should feel encouraged to dialogue with their supervisor, the LGBT specialist or any other member of the management team if they are needing support or feedback with respect to the transgender youth policy.

Urban Peak 135 POLICY OF RESPECT Each agency must have a policy of inclusion and respect for the diver- sity of all people, including transgender people. The agency should The only policy that celebrate the diversity of the youth they serve and be committed to works is to respect fostering a safe and welcoming environment for every young person the gender of each that walks through the doors. These ideals need to apply to both person as they self- staff and youth at the agency. identify and to let all The only policy that works is to respect the gender of each person as residents know that they they self-identify and to let all residents know that they are expected are expected to treat to treat everyone in accordance with this policy. For example, if everyone in accordance someone says she is a girl, she is a girl. A person’s gender does with this policy. not depend on whether or not he or she has had surgery or other medical treatments.

INTAKE PROCESS It is important to make sure that the first conversation a young person has with a staff member is welcoming, informative, and not judgmental. Based on the questions an agency asks upon intake, young people identifying as transgender may make assumptions about how they will be treated. If an agency acknowledges youth identifying as transgender, they will feel more comfortable discussing their gender identity. Acknowledging that an agency is open to working with transgender youth is simple. Identifying the agency as a safe zone is crucial. Ensure that your agency stays abreast of the changing terminology and engages not just adults or “experts” but also youth in this process. Young people are the ones defining their own gender and norms and it is likely that they have knowledge to impart and will feel respected as contributors to the shelter’s programming and policies. Make sure intake forms are appropriately updated. Do not assume that a youth who does not say that he or she is transgender is actually not. Part of the intake process is educating all incoming youth about what they can expect at the shelter and what is expected of them. Youth should be told that the program they are accessing is a safe place and Building a level of there is zero tolerance for inappropriate behaviors, racial comments, understanding about or negative comments targeted at certain groups. This provides an how to respect opportunity for youth to ask questions and be provided with answers transgender people at or explanations. They may be learning new information during this the shelter amongst all process, giving them the ability to grow and experience new situa- youth creates a cohort tions that they will later see in the world beyond the shelter. Building of transgender allies a level of understanding among all youth about how to respect outside the shelter. transgender people at the shelter creates a cohort of transgender allies outside the shelter. All incoming residents should be educated about these policies: • The agency respects transgender residents. • Private information, such as medical information and information about whether or not a person is transgender, is kept confidential unless the resident wishes to share this information of his or her own accord. • Harassment of other residents is not tolerated and can lead to termination of services. LGBT Youth 136 Homelessness • The agency has a grievance policy, should an issue arise involving being treated disrespectfully. This policy should be explained to all clients. If a resident reveals to staff that he or she is transgender, the intake conversation should include the following additional topics: • Sleeping arrangements, including the availability of beds close to direct care staff if the resident prefers to be in eyeshot/earshot of staff; • Shower and bathroom placement, including whether and how there is privacy for changing and showering; • Name and pronouns to be used at the agency; it may be necessary to use a legal name on some forms, but this does not negate the option of a client’s chosen name being used by staff and residents. This information and plan should be communicated to all relevant staff and included in the communications log, voicemail, and e-mail as appropriate.

HOUSING AND SEX-SEGREGATED FACILITIES People who identify as men should sleep in the men’s dorm and use the men’s showers and bathrooms, provided that feels safe to them. People who identify as women should sleep in the women’s dorm and use the women’s showers and bathrooms, provided that feels safe to them. People who do not identify as male or female, or are fearful of their emotional or physical safety, should sleep in the dorm of their choosing and use the bathroom in which they feel safest. Other If the placement raises arrangements may also be made to increase the feeling of safety, such concerns among other as offering the ability to choose a transgender-friendly roommate. residents, staff should Transgender clients and others with increased safety needs should patiently explain to be offered bed space closest to the direct care staff so that if there is those residents that the a problem, they may contact staff quickly for help. This also allows person is not a threat the staff to more closely monitor the client to ensure their safety. to them and that his In addition, the option of sleeping in a private room should be or her gender identify explored with a transgender client if there are special circumstances should be respected. such as safety concerns or if the client is in transition. Private rooms should not be used to isolate transgender clients. If the placement raises concerns among other residents, staff should patiently explain to those residents that the person is not a threat to them and that his or her gender identify should be respected. Staff members should be encouraged to seek out support from other staff members to facilitate this dialogue and underscore agency policies and procedures regarding respect for others. Residents concerned about privacy should be reminded that all showers are single occupancy and that the bathrooms in the facility allow for bodily privacy.

HARASSMENT Youth can be especially cruel to peers they deem different in some “bad” way. This is often a defense mechanism related to personal issues and insecurities. However, translating internal fears into attacks on others serves only as a cruel deflection of attention to another young person who is likely no more equipped to respond positively.

Urban Peak 137 It must be absolutely clear that harassment of any kind is prohibited and can lead to termination of services for any client who creates an unsafe and/or unwelcoming environ- ment at the agency. If clients are harassing a transgender client, staff must approach the harassing clients, follow the service restriction policy, and ensure that the threats stop immediately.

CONCLUSION Urban Peak is committed to serving all youth, including youth identifying as transgender. Youth identifying as transgender can be served effectively in a shelter environment if the appropriate staffing and education are in place. It is essential that a shelter environment is identified as a safe place for all individuals who access services. Youth identifying as transgender continue to look for accepting places and look for assistance from those individuals and agencies that support them for who they are. Regardless of the size of the population identifying as transgender, Urban Peak will continue to reach out to those in need and anticipates that other agencies will do likewise.

LGBT Youth 138 Homelessness Waltham House: Training models to improve interactions with LGBT out-of-home youth BY COLBY BERGER, ED.M. The Home for Little Wanderers (the Home) is a nationally renowned, private, nonprofit child and family service agency providing services to thousands of children, youth and families each year through 20 programs. Our mission is to ensure the healthy emotional, mental and social development of at-risk children and their families and communities. We do this through an integrated system of prevention, advocacy, research, and direct care services. With over 700 employees and 20 programs, the Home’s services include: • Prevention and early intervention; • Adoption and foster care; • Clinical and family support; • Residential care; • Special education; and • Case management. The Home continues its tradition of providing critical prevention and intervention services. First we create or support safe and nurturing environments so that children and families can use the wide variety of specialized services we provide to meet their needs. Second, we offer a commitment to the hard work, risk-taking and innovation necessary to not only address problems but also help the community learn how to prevent them. In the Home’s more than 200-year history, it has weathered significant changes in our nation and has adapted its services and practice to address the impact of those changes on the lives of children and families. This ability to act quickly upon the findings of the latest scientific research in the field of child welfare has been central to the Home’s past successes and remains the cornerstone of its forward-looking plans. The Home’s current strategic plan (2006–2010) is structured around the need to narrow the gap between what we know and what we do, again underscoring the importance of incorporating solid research into its programs and services. The key operating principles for our strategic plan are: • Operating a best-in-class practice model that reflects the most current scientific knowledge

139 • Identifying unmet or underserved client needs and creating sustainable and innova- tive programmatic responses • Maintaining a diverse workforce that reflects the multicultural backgrounds of its clients while providing an inclusive and caring environment in which all associates can achieve their full potential • Performing constant vigilant oversight to ensure effective and efficient allocation of resources to client services, infrastructure support and future development • Being a significant driving force for change in the child welfare world through its comprehensive public policy and advocacy agenda In all of these key drivers of the strategic plan, the Home will continually measure results against appropriate indices, assess progress and implement findings in order to answer the questions “Are we helping?” and “How do we know?” Our mission recognizes that in order to experience healthy growth, children depend upon a nurturing environment specifically from their families and the communities in which they live. We pursue this mission through an integrated system of prevention, advocacy, research, and a continuum of direct services. The Home’s has a longstanding history of serving LGBT populations. For over a decade the agency has provided adoption services to same-sex couple families and LGBT indi- viduals. The Child and Family Counseling Center is staffed by clinicians who are trained to provide LGBT-friendly therapeutic services. The Home also has run peer programs in which LGBT youth are hired to conduct outreach to their peers about issues ranging from tobacco cessation to teen pregnancy prevention and HIV/AIDS education. The most recent and momentous LGBT programming was the opening of Waltham House, a group home for LGBT youth. Waltham House is the first residential group home designed specifically for LGBT youth in New England and was only the third program of its kind in the nation when it opened its doors in October 2002. It was founded on the principles of responsibility, respect and pride, with the belief that all young people deserve to live in an environment in which they feel safe, respected, supported and cared for. The program offers 24-hour staffing and is housed in a large, comfortable, federal-style home with an expansive tree-lined back yard in the suburban neighborhood of Waltham, Massachusetts.552 This relatively new facility is designed to provide a safe and nurturing living environment for up to 12 LGBT youth ages 14 through 18. The program also serves youth who may be questioning their sexual orientation and/or gender identity/expression. Many young people who have previously experienced difficulty due to their sexual orientation or gender identity/expression have found Waltham House to be a welcoming environment in which to prepare for a successful transition to adulthood and cementing permanent family and lifelong connections. Waltham House is staffed by 12 to 18 direct care workers (a four-to-one ratio of clients to staff members), a clinical coordinator, clinical and non- clinical interns, a part-time nurse, a milieu director and a program director. The program also benefits from the compassion and generosity of many volunteers who provide one-on- one mentoring, academic tutoring, life skills development, financial planning assistance, bike trips, cooking, landscaping, movie nights and much more.

552 To learn more about Waltham House, please contact us at (781) 647-9976 or visit us on the web at www.thehome.org LGBT Youth 140 Homelessness Demographic information was collected from residents of Waltham House between October 2002 and October 2005 (n=27). Not all residents were included, but these data appear to be a representative sample. Discharged youth not included in the sample were likely to be emergency discharges or at the program during times of turnover in the clinical staff. The mean length of stay for the 27 Waltham House residents surveyed was 332 days (10 to 11 months) and the median was 324 days. Forty-eight percent of the youth were white, 22 percent African-American, 7 percent biracial, 4 percent Asian-American and 19 percent “other.”553 All youth were aged 18 or under, with one-third of clients 17 years old and four-tenths 18 years old. We had a significant majority of male clients (59 percent). Fifteen percent of clients identified as male-to-female (MTF) transgender and 7 percent identified as female-to-male transgender (FTM). The remaining 19 percent identified as female. Nineteen percent of these youth identified as heterosexual, while 51 percent were gay men, 11 percent lesbian, and 19 percent identified as bisexual.

WORKING WITH THE STATE OF MASSACHUSETTS The Home, collaborating with the Massachusetts Department of Social Services (DSS) and using generous funding from the TIDES Foundation,554 has set a national training precedent. According to the Child Welfare League of America, this partnership providing statewide training on serving LGBT youth is the first of its kind in the nation.555 Close to two thousand DSS employees from across the Commonwealth of Massachusetts have participated in this training. In the course of this chapter we lay out how we came to secure this grant. By discussing in some detail the process of implementing the program, we hope to provide guidance to other well-equipped agencies who might seek to conduct similar critical work in their home states. The Massachusetts DSS is, for many youth, the primary agency with which they and their families interact. Therefore, the importance of their staff being culturally competent and able to treat all of their clients equally and fairly cannot be overstated. In June 2003, the Home received a grant from the Tides Foundation to provide LGBT awareness training for state child welfare workers. By August of 2004, we had completed 42 trainings with great success. Training was given to intake workers, social workers, family resource coordinators, management, legal staff and volunteer liaisons within the DSS. The training curriculum included providing participants with appropriate terminology and definitions, youth statistics, case studies, perspectives from LGBT youth who are currently in the child welfare system, video clips, concrete resources and an action plan- ning tool. Staff members from DSS were engaged participants, both willing to learn and eager to share their knowledge and experience. Many DSS staff shared examples from their caseload regarding their work with LGBT youth and families.

553 There was no category for Hispanic in the demographic data collection. 554 The Tides Foundation partners with donors to increase and organize resources for positive social change. The foundation facilitates effective grant-making programs, creates opportunities for learning and builds community among donors and grantees. Their method is to strengthen community-based nonprofit organizations and the progressive movement by providing an innovative and cost-effec- tive framework for philanthropy. For more information about the Tides Foundation, visit www.tidesfoundation.org. 555 Confirmed in a personal conversation between Colby Berger and Rob Woronoff of the Child Welfare League of America. Waltham House 141 The Home’s former director of training summed up the project: Overall the training initiative was very well received. I believe that the training raised awareness, provided resources, caused staff to pause and reconsider their daily practices with youth, and the training increased their knowledge and skills in serving LGBT clients. Included in this section are a history and overview of the training initiative, a description of the training’s implementation plan, a summary of the training curriculum and a reporting of the outcomes that resulted from the Home’s LGBT training initiative.

HISTORY AND OVERVIEW OF THE INITIATIVE As A.D. Martin (1982) writes: Although oftentimes their existence has been denied, the fact is that there have always been gay [and] lesbian young people in U.S. and Canadian out-of-home settings. It has often been difficult to discern their existence for two reasons: (1) many of them did not fit the gender nonconforming stereotypes that most practitioners thought signaled a gay or lesbian identity, and (2) gay and lesbian youth are socialized to ‘hide’ their orientation.556 LGBT youth remain Gerald Mallon (1997) elaborates: invisible in out-of-home Recognition of these marginalized young people is further care primarily because impaired by the individual moral attitudes many child welfare adults who are charged professionals have that express contempt for homosexual orien- with making significant tation and by an almost complete lack of knowledge most decisions on their professionals have about normal gay and lesbian adolescent behalf have not been development.557 adequately trained. Clearly, there are many underlying causes that impact the lives and systems of care for LGBT youth: lack of professional development opportunities related to LGBT youth, lack of academic training, and lack of organiza- tional attention dedicated to this population. As Mallon points out, LGBT youth remain invisible in out-of-home care primarily because adults who are charged with making significant decisions on their behalf have not been adequately trained. The Home’s training initiative sought to bolster our child welfare community’s understanding of the issues faced by LGBT youth involved with the DSS so that professionals would be better equipped to attend to their out-of-home care needs. This is a nationwide problem, and we hope that similar efforts to ours will be made nationwide. This possibility is already being explored in Detroit, where the Ruth Ellis Center, another contributing agency to this report, has done some work with their state child welfare agency. The experience of feeling unequal, oppressed and discriminated against, both in society at large and in various forms of care, is commonplace for LGBT youth. Martin notes that

556 Martin, A. D. (1982). Learning to hide: The socialization of the gay adolescent. Adolescent Psychology, 10. 557 Mallon, G. P. (1997). Toward a competent child welfare service delivery system for gay and lesbian adolescents and their families. Journal of Multicultural Social Work, 5(3/4). LGBT Youth 142 Homelessness as a part of social development, every child learns about the different social identities he or she may be a part of and which identity groups our culture casts out. For LGBT young people, a significant part of adolescence is about coming to terms with membership in a group that is not only seen as “less than” but may be deemed as despised: [Sexual minority youth] are forced to deal with the possibility that part of their actual social identity contradicts most of the other social identities to which they have believed they are entitled. As this realization becomes more pressing, they are faced with three possible choices: they can hide, they can attempt to change the stigma, or they can accept it.558 The purpose of the awareness training we conducted was to openly address the ways in which LGBT people are stigmatized, while teaching professionals who work with youth living in out-of-home settings the enormous impact that stigmatization can have on young people. In addition, we dealt with the homophobia and transphobia young people face and a myriad of other challenges in their families, schools and treatment facilities. The only way to eliminate the resulting pain and damage is to change the basis for the stigmatization process, the prejudice of homophobia. Stigmatization of the gay adolescent has evolved from centuries of misinformation and fear. Education through direct teaching and the example of role models will be the best way to attack discrimination at its root.559 Data from the Massachusetts Youth Risk Behavior Survey (MYRBS), a biannual statewide survey administered to students in grades 9–12 by the Massachusetts Department of Education, demonstrate that students who identify as lesbian, gay or bisexual (LGB) or who are perceived to be LGB face increased risks.560 The data from 1999 (when we submitted a grant proposal to the Tides Foundation) revealed that LGB students are more than twice as likely as non-LGB LGB youth are much youth to be involved in a fight at school, more than three times as more likely than their likely to be threatened with a weapon at school, and more than non-LGB peers to feel three times as likely to skip school because they feel unsafe. As a afraid, sad, hopeless result, LGB youth are much more likely than their non-LGB peers and depressed and to feel afraid, sad, hopeless and depressed and to attempt suicide. to attempt suicide. According to the 1999 MYRBS data, LGB youth feel sad or hopeless nearly twice as often as non-LGB youth, make a plan for suicide more than twice as often, and attempt suicide more than four times as often. As former Director of Training Carol Grady has noted, “The MYRBS data reinforce the critical need for training to agencies and professionals who are dedicated to serving all youth.”561 There is a problematic lack of training opportunities on LGBT issues made available to professionals in the fields of psychology, sociology, criminal justice and education. As a result, it is common that workers have never been exposed to the issues faced by LGBT youth, let alone have an awareness of best practices about how to address them. One lesbian youth in our care summed up her experience bluntly;

558 Martin, A. D. (1982). 559 Martin, A. D. (1982). 560 The MYRSB does not currently ask respondents whether they identify as transgender or questioning. Therefore, accurate reference in this instance can only be made to LGB respondents. 561 The Home for Little Wanderers. (2006). Fall 2004 eNewsletter: Other headlines. Author. Retrieved September 7, 2006, from http:// www.thehome.org/site/content/newsletter/2004_fall/other_headlines.asp Waltham House 143 [My therapist] never once talked about LGBT people or issues. This made me think that it was outside the realm of possibility to him. I decided not to come out to him and never made any progress with him because I never felt safe enough to be honest about what was really going on.562 Even the most well-intentioned professionals in human service fields admit that they do not know what language to use or what to say when a young person comes out to them and are therefore at a loss when it comes to providing services or finding appropriate placements for LGBT youth. The Home has always been committed to being a leader in children’s services and recognized the need to address this gap in professional development. Some homeless youth Having a good knowledge of the risk factors that LGBT youth face, said that the risks in addition to the factors that compound risk and lack of safety for inherent in living in LGBT youth in out-of-home care, we expected that upon opening a space that was not Waltham House, the program would be flooded with referrals. What protecting them as an happened in the fall of 2002 was quite the opposite. The program LGBT person meant opened with the arrival of four teens, and the remaining eight beds that they were better went unoccupied for several months. Three of these four youth were off contracting HIV referred by a single social worker. This lack of referrals baffled the because they would then program and agency staff, especially when we considered stories we be eligible for specific heard from former clients who had moved on to other programs and housing funds reserved subsequently come out. for that community. These former clients recounted stories of being kicked out by other agencies or care providers when they revealed their sexual orienta- tion or gender identity. Worse still, too many of them said that the risks inherent in living in any space that was not protecting them as an LGBT person meant that they were better off having unsafe sex and contracting HIV because they would then be eligible for specific housing funds reserved for that community. This is a frightening thought, but also clearly a painful reality for some of our youth. After numerous attempts at outreach to the program’s referral sources (primarily DSS), we started asking social workers about their impression of the situation and learned that professionals in the field did not have the language to initiate discussions with their clients about sexual orientation and gender identity, and therefore were not sure what an appropriate referral to Waltham House would entail. Furthermore, they had not had much, if any, training about LGBT identity and did not know how to identify clients on their caseloads who might be struggling with issues of sexual orientation or gender identity. In response to Youth in the Margins,563 a publication about LGBT youth within child welfare systems across the United States, DSS convened a working group of providers serving LGBT youth in Massachusetts.564 This working group made numerous recom- mendations for supportive initiatives that sought to ensure the safety and quality of care not only for LGBT youth within the DSS system of care but also for employees and foster

562 This comment was made by a former resident of Waltham House. 563 Lambda Legal Defense and Education Fund. (2001). Youth in the margins. New York: Lambda Legal Defense and Education Fund. 564 Youth in the Margins does not make any reference to questioning youth, so we refer only to LGBT youth in this instance. LGBT Youth 144 Homelessness parents. In addition, the group urged the department to develop best practices models to address the needs of its LGBT staff and clients and to ensure that staff at all levels were trained on LGBT issues and services for LGBT youth. During this same period, several DSS area offices held LGBT trainings for staff. In one office, the training that was conducted by the Home’s director of LGBT services was so successful that the DSS area director requested additional training for DSS assessment/ intake staff. A yearlong training initiative followed, with one session per month. Other DSS offices took advantage of trainings funded by the Department of Public Health. All of these trainings were intended as pilot programs for later replication within the larger DSS system. When the Home approached the DSS to find out whether they would be interested in training their entire statewide staff about LGBT youth issues, they were enthusiastic but noted that they did not have the funding to implement such an initiative. The Home’s director of LGBT services proposed that the Home seek external funding to cover all costs associated with providing the training to DSS. The Department agreed to the proposal and wrote a letter of support to accompany the application that the Home subsequently submitted to the Tides Foundation. We provide this history because we are sure that regardless of overall LGBT friendliness on the part of a particular state welfare agency, there are always connections to be made and there is always networking to be done between LGBT-supportive staff and state offi- cials. It may take time, but development of networks will help groups to identify receptive bureaucrats who would potentially have the power to impact decision making if they can be brought on board with the idea of a training program such as ours. Furthermore, in a day and age when government funding for even the most essential social services faces drastic cuts in most states, securing support from potential financial backers preempts an easy “out” that some reluctant public officials might deem an acceptable excuse for not addressing this issue—namely, a lack of funds.

IMPLEMENTATION OF THE TRAINING PROGRAM Once funding was approved, a series of meetings took place between DSS and staff here at the Home to plan the details of the The amount of energy training initiative. The process of establishing expectations for the trainers and trainees, assigning responsibilities, determining the and preparation that logistics of the timetable, and communicating with various levels went into the pre- of leadership in both agencies was not easy. The amount of energy training process of this and preparation that went into the pre-training process of this initiative cannot be initiative cannot be overstated. It was an enormous undertaking overstated. It was an to organize the 42 training sessions across the Commonwealth, enormous undertaking. connect with the multiple individuals at DSS who were responsible for various aspects of setting up training logistics, hire the trainers and curriculum developers to devise and conduct the sessions, create the training materials for each of three different curricula, develop the training assessment tools to be utilized and ensure the quality of each training session.

Waltham House 145 In all, 10 people from the Home and allied agencies were hired as trainers for the initia- tive. A subset of this group of trainers collaborated to develop the specific curricula for each of three different offerings: a four-hour training for statewide managers, a standard two-and-a-half-hour training for all staff from DSS offices, and a follow-up three-hour volunteer liaison training. This structure was intended not just to ensure top-to-bottom familiarity with the issues, which is obviously crucial, but also to ensure that each DSS office had a supportive staff person as the “go-to ‘expert’” on this issue going forward. With an LGBT ally in each office, it should prove harder for reluctant staff to argue that they do not have access to the necessary information or skills to adequately serve their LGBT clients. We devised a strategy that aimed to build support for the training initiative at all levels of DSS. Decision makers agreed that in order to convey the importance of the initiative and the Department’s commitment to the training, there would need to be initial outreach to the DSS leadership. Therefore, the first session was prepared for delivery to the upper level managers. It was the hope of the implementation team that a unique session for statewide managers would allow the leadership of DSS to get an overview of the initiative, understand the pressing need for such training, and experience the training curriculum firsthand before they were asked to commit their teams to attending. The statewide managers’ session was a four-hour training. In addition to much of the standard curriculum and exercises, this session also included two LGBT youth speakers who told their gut-wrenching stories of growing up in state custody. That session set the tone for the remainder of the initiative and achieved the goal of garnering support for the project from the DSS leadership. The standard two-and-a-half-hour curriculum focused on educating the human service professionals who interact most often with LGBT youth in out-of-home care and whose capacity to understand and work with these youth provided the most opportunity to improve the youth’s experience in the system. The four goals of the standard training were to: 1. Create an environment in which the needs of out-of-home LGBT youth are recog- nized, valued and engaged by practitioners in a respectful and competent manner. 2. Increase the practitioners’ understanding and skills related to reducing the level of hopelessness, depression, isolation and self-injurious behaviors among LGBT youth. 3. Assist professionals in recognizing and developing skills that promote resiliency among LGBT youth. 4. Increase the knowledge and skill of professionals in making placement decisions and clinical assessments for LGBT youth in care. Activities conducted during the trainings were purposely designed to be hands on, interactive and skills-based. Lecturing alone is far less effective a teaching tool and makes disengagement too easy for attendees. These activities involved lectures, videos, group activities, small group discussions, case studies and action planning. The strategy was to engage each participant on five levels: 1. Individual self-reflective process 2. Individual assessment of skills and competencies 3. Identification of barriers and needed resources LGBT Youth 146 Homelessness 4. Organizational and agency assessment 5. Action planning to better meet the needs of LGBT youth in care In addition to the statewide managers’ training and the standard DSS staff training, the Home’s training included special outreach to and skills building for a newly formed group of LGBT volunteer liaisons. These DSS staff members each volunteered to be the LGBT resources representative for their area office or region. The liaisons serve as collegial resources within DSS and as “go-to people” regarding issues, needs and concerns related to serving LGBT youth and their families. The liaisons also met together for support and guidance and for discussions on clinical practice and agency policy. The liaisons participated in the standard training, and after all standard trainings were complete they were invited back to take part in an additional three-hour training where they met their allied peers in other offices and were offered more resources and training pertaining to working with colleagues within their own offices. The volunteer liaison group was felt to be an important aspect of the initiative, as practitioners working on behalf of LGBT youth and families often report that such work can feel isolating and that there are few opportunities to find peers who can provide support. This was a group, some of whom identified as LGBT, who were likely to be asked additional questions about LGBT issues by their peers, who might be able to influence placement decisions for youth and who could have an impact on the ongoing work at DSS from the inside. We wanted to ensure that these individuals were equipped with additional resources and opportunities to practice skills around having difficult conversa- tions with colleagues and families that other staff who had just a basic understanding of LGBT issues might not have. Additionally, it was imperative that volunteer liaisons be connected with the leadership within DSS so that they were aware of the support they could rely on at the upper levels of the DSS when questions of policy or challenging cases arose. The commissioner of the Department of Social Services took the initiative to attend a volunteer liaison training, which sent a powerful message about his commitment to supporting the work of this group.

THE TRAINING CURRICULUM What follows is an overview of the standard two-and-one-half hour training that was offered to all DSS employees (caseworkers, family stabilization units, lawyers, supervisors, administrators, policy-makers, etc.).565 Note that prior to the standard training, a longer four-hour training was offered to statewide managers in order to ensure that the upper level management of the DSS shared a basic level of knowledge about both LGBT youth issues and the vision for the training initiative over the coming year. To reinforce the importance of this work as well as the impact each manager could have, we had LGBT youth in the system attend these trainings to speak directly with the major decision makers in DSS. We also discussed how each one of them could play a critical role in ensuring that as many staff as possible benefited from the training, ideally by making attendance mandatory.

565 For further information regarding curriculum development and implementation within other organizations or to learn more about the Home for Little Wanderers’ LGBT training and consultation services, please contact Colby Berger, Ed.M. via e-mail at [email protected] or by calling (617)-469-8581. Waltham House 147 An additional training was offered to a select group of volunteer liaisons after all of the standard trainings were completed. Each DSS area office director was asked to choose one or two volunteer liaisons who would receive an additional three hours of training beyond the standard two-and-a-half hour session and who would then be utilized as an officewide resource to colleagues and clients. This session included information on how to work effectively with colleagues who ask for help or support or with youth who might not be receiving the help they needed from their assigned case worker.

Standard 2.5-hour training agenda Pre-training evaluations: Staff members were asked to self-assess their prior knowledge of issues facing LGBT youth. It was important to collect these preliminary data in order to draw comparisons to the post-training assessments (with the same questions) that participants completed at the conclusion of each training, allowing trainers to determine the effectiveness of the program. Introductions and overview of training initiative: Trainers (two per training) introduced themselves to the group and briefly described the history of the initiative and the purpose of the grant and curriculum. Opening interactive exercise: Trainers asked participants to indicate their knowledge or experience with various elements of LGBT culture and identity. Terms and definitions: A basic understanding of terms, definitions, distinctions, the power of language, and the importance of using correct and inclusive language was the focus of this section of the training. Participants were given a list of terms, and trainers highlighted the terms most commonly heard/used by clients and families. This section additionally addressed some of the complex lines between stigmatization and stereotypes, low sense of self-worth, isolation and high-risk behaviors. Quotes from youth: Statements made by LGBT youth in out-of-home care were shared. Participants heard the first person voices of LGBT youth as they described their experi- ences in schools, residential placements and foster care. Exercise on identity and expression: Trainers asked participants to examine various aspects of identity and reflect upon how people express elements of identity and what the effects of identity suppression are. Trainers made the link to LGBT youth and showed that messages about suppressing elements of identity or identity expression can lead to risk-taking behavior among LGBT youth. Research and data: Trainers reviewed statistics about LGBT youth and data that connects stigmatization to risk taking. Emphasis was placed on participants’ understanding that LGBT youth suffer higher rates of depression, suicidal ideation and other forms of high- risk and self-injurious behaviors not because they are LGBT, but as a direct result of the high levels of rejection and stigmatization they experience on a daily basis from family members, peers and community members. Conversely, trainers pointed out the impact of LGBT safe spaces for youth and that when levels of anti-LGBT harassment are lower, suicide attempts are also lower. Viewing of video segment and debrief: A short film clip depicting a gay teen’s struggle with his family’s homophobia was shown. In a discussion after the film, participants were asked to answer questions in small groups about the impact of the family’s homophobia and how DSS involvement might have impacted the situation. LGBT Youth 148 Homelessness Case studies: Participants were divided into small groups and were asked to read and respond to a short case study. A debrief with the entire group followed, and DSS workers were given opportunities to raise issues related to cases on which they were working. Action planning: Trainers guided participants in identifying attainable goals related to increasing safety and support for LGBT youth and families. Resources and wrap up: A list of available resources was provided to all participants, including: social/support groups, school-based gay-straight alliances (GSAs), LGBT- competent mental health support services, help lines, written materials, phone numbers and Web sites. Participants also shared knowledge of additional local resources and allies in partner agencies. Post-training evaluations: Participants responded in writing to the same questions that they were asked on the pre-training knowledge assessment in order for the Home to gather data about the impact of the training. It should be clear at this point that while the time involved in coordinating this wide scale training was significant, the materials used and the structure adopted could readily be adapted to any geographic location where suitably motivated staff and volunteers reside. The results we now turn to should also serve as a motivator for those of you considering embarking on a similar mission. After the training at her office, Joy Cochran, DSS Family Resource Specialist in the Central Office Foster Care and Adoption Unit, noted that she …heard from staff who wanted to discuss placement options for LGBT youth and to obtain resources for youth and their families. While this occurred prior to the training, the rise in staff awareness and the resulting skills to speak with our youth will lead to greater safety and improved service provision to LGBT youth and their families. The agency wide training on LGBT opened the doors even further to a better understanding of the issues confronting our LGBT youth at home, in the community and at school.566

TRAINING SESSION OUTCOMES AND HIGHLIGHTS “These training opportunities are rare, critical to human services, and critical for LGBT youth.” —DSS Social Worker “I always thought that I’d be able to pretty much tell which of the clients I work with are LGBT, but after learning about the lengths that people go to in order to protect themselves from harass- ment and pretend that they’re straight, I’m re-thinking the ways that I interact with my clients. I need to stop assuming that all youth are automatically heterosexual.” —DSS Case Manager “All I have to say is, it’s about time! As a queer social worker, I’m often approached by my peers as the only one who can deal with gay kids. Today’s training made it all of our responsibilities as

566 Personal communication between author and Joy Cochran. Waltham House 149 professionals to have the skills and resources to work effectively with an underserved population that has been silenced for too long.” —DSS Volunteer Liaison As the above comments make clear, our efforts were not only warmly received but also provided very practical knowledge for attendees to take away and apply immediately to their day-to-day work. This training initiative met the primary goal of the Home for Little Wanderers and DSS: to expand capacity to address a broad range of cultural issues and concerns among the youth in the system. Recognizing that issues of sexuality and gender identity/expression do not arise in isolation of other issues (such as race, class, ethnicity, and immigration status) and enhancing child welfare professionals in their ability to best meet the needs of LGBT youth is but one facet of a larger strategic initiative. We are proud of our partnership with DSS and the continued effort to best serve the youth and families of Massachusetts. The following statistics provide a glimpse into the scale of change we tried to effect through the development and implementation of this novel training arrangement: • 60 statewide managers attended a four-hour training session. • 1685 DSS staff completed a 2.5-hour training session. • 63 volunteer liaisons came back for a follow-up three-hour training session. • A total of 1808 DSS staff were trained on LGBT youth issues. To help us determine the efficacy of our program, we asked attendees to complete pre- and post-training assessments. We found that: • 91 percent of DSS participants found the training to be helpful or very helpful. • DSS staff members feel they have more resources as a result of the training. • Trainees demonstrated an increased ability to evaluate appropriate programs and placements for LGBT youth. • DSS staff members subsequently have a better understanding of issues facing LGBT youth. Trainers in the LGBT trainings were shocked not only at the limited knowledge, skills and resources that workers admitted to having about LGBT youth, but moreover at some of the current harmful practices DSS workers acknowledged as a result of their lack of education. As evidenced by the post-training surveys that were collected after the first round of trainings, adults who had been trained to work with LGBT youth reported not only that they appreciate the opportunity to learn about a population which is often invisible throughout their traditional job training, but also that they feel better prepared and have more resources after undergoing a simple 2.5-hour training. A number of comments made by training participants were instructive to us as trainers both in shaping our thoughts about how effective we had been and in reaffirming that the extraordinary effort of our entire team had indeed borne fruit. We hope they will also encourage others to engage in similar efforts. According to one DSS caseworker, I have been working with LGBT clients for years but had never had a chance to really learn the “do’s and don’ts” of how I could be respectful and effective with them. I wish I had gotten to do this training earlier in my career. Unfortunately I made LGBT Youth 150 Homelessness some mistakes with some of the kids on my caseload—I just didn’t know about what language to use and how to talk to them about sexual orientation. I assumed that they would know that I’d accept them, but I didn’t ever make that explicit. One adolescent who I worked with told me that he thought I wouldn’t understand him because I had never given him any indication that I was gay-friendly. All the while, I thought it was obvious. Now I have tools I can use to open up conversations and be more visible in my support for LGBT people. A DSS supervisor who participated noted, I had no idea that LGBT youth were up against so many challenges. I knew that there were statistics about suicide risks and substance abuse that these kids face, but I didn’t realize that it was so related to the homophobia they endure and the lack of trained professionals in their lives. Knowing what I know now, I can give them a place to feel safe and be an adult ally. The need for this work is evident and the impact that such training can make on child welfare, education and juvenile justice systems is enormous. The young people who reside at Waltham House testify to the importance of giving adults tools to utilize in working with LGBT youth. In training we teach the importance of breaking the silence and helping adults to feel comfortable raising LGBT issues with youth. One young man who identified as gay said, I was terrified to tell anyone about the feelings that I had been having for another guy. I felt like there was something very wrong with me because of everything I had ever learned. [My clinician] though, just made it clear to me, over and over, that no matter what I said about my feelings, it was okay. I ended up coming out to her and spending three years coming to terms with who I am. This therapist saved my life by letting me find self acceptance. By educating professionals about LGBT issues, we help adults find the best ways to send messages of compassion and acceptance to young people. Another resident at Waltham House reported, When my social worker asked me about my social life, he didn’t just assume that I was straight. He asked me if there was “anyone special” in my life and if I was dating girls, boys or both. It meant so much to me because I could openly and honestly talk about my feelings and come to my own conclusion about my identity. Challenging heterosexist assumptions and teaching skills about opening dialogue about sexuality can make the difference between building superficial relationships with clients and providing effective, sometimes lifesaving services.

CONCLUSION One of the outcomes of the training initiative was an increase in the number and types of referrals that Waltham House received. After suffering from a dearth of referrals due to the lack of awareness of LGBT youth within the system, Waltham House saw a spike in referrals as more and more DSS workers participated in LGBT training. Social workers were better able to identify LGBT young people on their caseloads and better equipped to

Waltham House 151 have conversations with their clients about sexual orientation and gender identity/expres- sion. As a result, more youth were given the option to consider Waltham House as a placement option and Waltham House received referrals that were more appropriate to the group home level of care the program offered. The Home is now seeking to extend this training to professionals outside the DSS who work with out-of-home youth. This includes caregivers at non-government social service organizations, the Department of Mental Health, the Department of Youth Services, health care providers at clinics frequented by out-of-home youth, and members of the juvenile court system. Based on the success of the 2003–2004 Tides Foundation-funded training, we are encouraged and inspired to continue this work. We have always known the need existed, and now we have data to support the positive outcomes that training can have for practitioners and, ultimately, LGBT youth. The Home has moved forward in committing both philosophically and financially to continue work in support of LGBT youth. In May of 2005, the Home created the full-time position of LGBT Training Manager in order to respond to the need to provide professional development opportunities for social and human service providers both locally and nationally. Our LGBT Training Manager has a wide range of duties, but among them is the critical charge of offering training and consultation on LGBT youth issues and to assist external agencies with enhancing the services they provide to youth and families.

LGBT Youth 152 Homelessness Conclusion and policy recommendations

LGBT youth experience homelessness at a grossly disproportionate rate. Our analysis of the available research suggests that between 20 percent and 40 percent of all homeless youth identify as lesbian, gay, bisexual or transgender (LGBT).567 Because of a lack of understanding of their particular needs and in many instances a lack of knowledge of their very existence, homeless youth also experience negative social service outcomes. On so many measures, we can look to the behavioral, health, emotional and other risks facing straight homeless youth and see evidence that those same risks are inflated for their LGBT counterparts. When Homelessness is not thousands of youth experiencing homelessness each year go without an issue that can be access to basic drop-in center services or space in a transitional living tackled piecemeal. program, it is not simply because they are straight or LGBT that they Wholesale improvement miss out. It is because for far too long these much needed services is needed, and that is have been grossly underfunded. what we propose. While our focus in this publication and in these policy recommenda- tions is to address LGBT-specific concerns, we believe that homeless- ness is not an issue that can be tackled piecemeal. Wholesale improvement is needed, and that is what we propose. Some of our recommendations address flaws in federal funding, programs or planning. Others address shortcomings at the state, individual agency or professional training levels. Instead of presuming to know what specific problems exist and how exactly they might best be addressed, we have approached this process as a collaborative effort. Developing these recommendations has been a collaborative effort. Our publishing part- ners at the National Coalition for the Homeless have been particularly helpful in putting together this series of recommendations. We have also talked with and/or analyzed the policy recommendations of the Child Welfare League of America, the National Network for Youth, the National Youth Advocacy Coalition, the ACLU’s LGBT Rights Project, the Evan B. Donaldson Adoption Institute and the Sexual Minority Youth Assistance League. The result is a series of recommendations that reflect the problems identified by our review of the available research and which are in line with the views of nationally recognized experts in public policy related to youth homelessness.

567 See pages 11 to 14 of the full report for a more detailed summary of the available research. 153 Our recommendations are not intended to be an exhaustive list of every policy change that would make the experience of homeless youth better. Rather, we highlight some of the crucial problem areas where policy change is needed and reasonably possible. While each recommendation has the potential to impact the process of caring for homeless LGBT youth from the federal level down to local agencies, we have separated our recom- mendations into three categories. We begin with a discussion of those recommendations that should be addressed from the federal level, then turn to state- and local-level recom- mendations before concluding with a number of recommendations specifically targeted at practitioners.

FEDERAL-LEVEL RECOMMENDATIONS

1. Reauthorize and increase appropriations for federal Runaway and Homeless Youth Act (RHYA) programs. Increased funding for RHYA programs is a critical first step in the process of moving all youth off the streets, LGBT or straight. President George W. Bush’s FY 2007 budget request included $103 million for RHYA programs, the same level as the FY 2006 appro- priation ($88 million for the consolidated account and $15 million for the prevention account). This is a decline in actual dollars over two years ago and a greater reduction in available funding when accounting for inflation.568 The U.S. Department of Health and Human Services reported in FY 2005 that 2,064 youth were turned away from RHYA basic centers and 2,555 youth were turned away from RHYA transitional living projects due to lack of capacity to house them.569 This equates to a capacity shortfall of at least 11 basic centers and at least 15 transitional living projects. For the purposes of this report, we avoid making specific funding recommendations because such recommendations will be out of date quickly. A more comprehensive explanation of the variety of factors affecting RHYA funding is available from the National Network for Youth (NN4Y) at www.nn4youth.org. 2. Permit minor youth, especially unaccompanied minors, to receive primary and specialty health care services without the consent of a parent or guardian. Many homeless youth living on the streets and leaving foster care prior to legal adulthood encounter challenges accessing primary and specialty medical care. Many homeless youth do not understand how to navigate the complex healthcare system of the uninsured. Because no guardian is available to consent to medical care, legislation is needed to grant unaccompanied minors health coverage regardless of parental or guardian permission.570

568 At press time the Congress had not acted upon the President’s budget request. The data provided here is only to provide the reader with some context as to recent funding levels. Further discussion of historical trends is contained in the “The Federal Response to Homelessness” section of this report. 569 Cited in National Network for Youth. (2006, March 30). Statement for the record of the National Network for Youth on FY 2007 Labor-HHS- Education-related agencies appropriations before the Subcommittee on Labor-Health and Human Services-Education-related agencies. Committee on Appropriations. U.S. House of Representatives. Author. Retrieved September 11, 2006, from http://appropriations.house.gov/_files/ AnitaFriedmanTestimony.pdf#search=%22HHS%20capacity%20of%20basic%20center%20program%22 570 For more information visit the website of the Center for Adolescent Health and the Law at www.cahl.org LGBT Youth 154 Homelessness 3. Develop a national estimate of the incidence and prevalence of youth homelessness, gathering data that aids in the provision of appropriate services. Reasons to overcome the methodological and political barriers to obtaining a more accurate estimate of the population of homeless youth nationwide include: • Obtaining a more accurate idea of how many youth, and with what experiences and needs, are experiencing homelessness • Aiding in the most efficient and appropriate allocation of scarce recourses • Providing crucial data that will teach us much about this community and provide direction for additional research to further inform decision making in this area 4. Authorize and appropriate adequate federal funds for developmental, preventive and intervention programs targeted to LGBT youth. Drop-in centers, funded through current federal homeless youth programs and often connected to street outreach programs, are crucial to helping LGBT youth who have run away or are experiencing homelessness for many reasons. These reasons include peer bonding, recreation, safety, public health and youth development. Such centers might work with housed youth as well as those experiencing homelessness.571 5. Raise federal and state minimum wages to an appropriate level. The federal minimum wage rate, which has not been increased in almost 10 years and stands today at $5.15 per hour, should be increased. At the current rate, a full-time employee on minimum wage earns only $10,712 per year. This is far short of the $28,500 increase in salary that members of Congress have received since the last change in the federal minimum wage in 1997,572 and barely above the official poverty level for a single person, $9,800. If this person has even one child, then they will fall thousands of dollars below the official poverty level.573 Raising the federal minimum wage would significantly help homeless people trying to find a way off the streets or into independent housing. State minimum wage rates should be increased over and above the federally mandated minimum to make a considerable difference in the quality of life of minimum wage- earning employees. Some states have taken similar steps; Alaska’s minimum wage is $7.15 per hour and Michigan’s increased to $6.95 per hour effective October 1, 2006. Oregon ($7.50 per hour) and Washington state ($7.63 per hour) have gone one step further by index-linking their state minimum wage so on the first of every year it is increased in line with inflation.574 The city of Los Angeles, Calif., has taken action separately from the state and increased its minimum wage to $10.03 per hour, or $8.78 per hour if an employer makes a minimum $1.25 per hour contribution towards health benefits, paid vacation and unpaid leave.575

571 Many youth-specific and general LGBT community centers offer programming for LGBT youth, but the mechanics of funding such programs can be haphazard. For example, in Tucson, Ariz., the Eon youth program is a collaboration of Wingspan, Southern Arizona’s LGBT Community Center, Pima County Health Department and the Southern Arizona AIDS Foundation. A single stream of federal funds that enabled groups like Eon to cover the basic operations of an LGBT youth center would make things far simpler. 572 Samuel, T. (2005, March 13). Victims of minimum wage. CBS News. Retrieved June 28, 2005, from http://www.cbsnews.com/ stories/2005/03/11/opinion/main679698.shtml 573 U.S. Department of Health and Human Services. (2006, January 24). The 2006 HHS poverty guidelines. Author. Retrieved October 31, 2006, from http://aspe.hhs.gov/poverty/06poverty.shtml 574 AFL-CIO data cited at www.infoplease.com. (2006). State minimum wage rates. Author. Retrieved September 11, 2006, from http:// www.infoplease.com/ipa/A0930886.html 575 Ibid. Conclusion and policy recommendations 155 Increasing the minimum wage is one way to help the poorest of American workers, but adopting a living wage would make a substantially greater difference. A living wage program considers the real, localized cost of living based on accepted minimal norms and standards. It would ensure that each person would pay no more than 30 percent of their income to cover housing costs.576 6. Broaden the U.S. Department of Housing and Urban Development’s definition of “homeless individual” to include additional living arrangements common to home- less youth. Inconsistencies and incompleteness in counts of homeless people contribute to the difficult task homeless advocates have in seeking more funds from the federal government and others. What constitutes “homeless” for one agency is merely “sleeping on a friend’s couch” for another. The U.S. Department of Housing and Urban Development’s (HUD) definition of homeless individuals should be broadened to encompass the diverse living arrange- ments of people in homeless situations. The definition of “homeless individual” in the McKinney-Vento statute restricts the meaning of that term to persons living on the street, emergency shelters, and other locations “not fit for human habitation.” Excluded from this definition—and thus from federal homeless assistance—are individuals and families living in doubled-up arrangements, transitional housing, and motels and hotels when there is no suitable alternative. The generosity of a friend providing a couch to sleep on should not constitute being adequately housed. These are the very living arrangements commonly deployed by unaccompanied youth. Consequently, the exclusion of these living arrangements from the McKinney-Vento definition of homeless individuals renders HUD and other federal homeless assistance programs inaccessible to thousands of homeless youth and young adults. We recommend that appropriate federal legislation include a revised definition of “homelessness” that includes individuals and families living in doubled-up arrangements, transitional housing, and motels and hotels when there is no suitable alternative.577

STATE- AND LOCAL-LEVEL RECOMMENDATIONS

1. Establish funding streams to provide housing options for all homeless youth. Require that recipients of these funds are committed to the safe and appropriate treatment of LGBT homeless youth, with penalties for noncompliance including the loss of government funding. These funds would supplement federal appropriations. In addition to funding allocated to them from federal programs, more than a dozen states have developed their own funding streams to provide runaway and homeless youth service providers with a pool of money for prevention, outreach, emergency shelter and transitional housing services. Some of the existing state programs are competitive, inviting agencies to apply for funds, while others are managed and distributed by the states in a non-competitive process. Since the needs of homeless youth exceed the funds from any

576 For more information about living wage programs, see www.universallivingwage.org 577 See www.npach.org for extensive documentation on the HUD definition of homeless individual and the call for a different definition. LGBT Youth 156 Homelessness one source, we strongly encourage all states to research the possibilities for creating state- and local-level funding complementary to RHY funds. For example, in Berkeley, Calif., the city council has set aside increased funding for programs to meet the needs of homeless youth. Young people are flocking to Berkeley because of its liberal politics and temperate climate and they need a safe place to sleep that is youth-specific. As a member of the city’s homeless commission noted, “Young people often avoid adult shelters because they… don’t want to be associated with the older homeless crowd.”578 In 2002, the city provided the Youth Emergency Assistance Hostel (YEAH!) program $5,000 of public funds towards a total budget of $22,000 to run a 20-week winter shelter.579 By 2004–2005 the city’s contribution had risen to approximately $40,000 of an $119,000 annual operating budget, a clear sign of the city’s commitment to helping an underserved population.580 Other cities have also made commitments to youth homeless programs. In New York City, the city council in 2006 approved $1.2 million of funding specifically for LGBT youth.581 These funds have been allocated to three agencies so they can secure the necessary licenses to expand the services they can offer to this population. Licensing is obviously a crucial requirement to ensure that all youth are being cared for in appropriate spaces by appropriately qualified staff. However, the process can be time-consuming and expensive, rendering it almost impossible for smaller agencies to qualify to receive funds that might enable them to increase their efforts working with LGBT or other homeless youth. 2. Permit dedicated shelter and housing for LGBT youth Theoretically, all shelter space should be safe for LGBT youth, but this is not the case. The absence of sufficient safe space for LGBT homeless youth has resulted in the creation of LGBT-only facilities to accommodate the immediate need for shelter housing options. We strongly encourage grant-making child welfare agencies to approve funding for programs that specialize in serving LGBT runaway and homeless youth. It is important to acknowledge that LGBT-specific housing is not necessarily a useful or desired option for all LGBT youth. In fact, some youth may not want to live in a space that identifies them as LGBT. Further, the creation of LGBT-specific spaces is not intended to shift responsibility away from mainstream providers. The end goal is for both mainstream and LGBT providers to have the capacity and knowledge to effectively and compassionately serve LGBT youth. 3. Repeal existing laws and policies that prevent single and partnered LGBT individuals serving as adoptive and foster parents. The federal government has documented the vast number of children who are awaiting adoption: 119,000 as of 2003.582 In addition, many youth are not formally

578 Bhattacharjee, R. (2006, February 28). Program aims to remove homeless youth from the streets of Berkeley. Berkeley Daily Planet. Retrieved August 19, 2006, from http://www.yeah-berkeley.org/Berkeley_Daily_Planet_28Feb06.pdf 579 Hoge, P. (2004, February 6). Home for the night: Alameda County’s new shelters for young adults open many doors. San Francisco Chronicle. Retrieved August 19, 2006, from http://www.yeah-berkeley.org/SF_chronicle_6Feb04.pdf 580 Youth Emergency Assistance Hostel. (2006). Our program. Author. Retrieved August 19, 2006, from http://www.yeah-berkeley. org/page2.php 581 Siciliano, C. (2006, March 2). At long last, progress on homeless LGBT youth. Gay City News. Retrieved August 19, 2006, from http://www.gaycitynews.com/gcn_509/atlonglastprogress.html 582 U.S.Children’s Bureau. (2005). The AFCARS report. Washington, DC: Administration on Children, Youth and Families. Conclusion and policy recommendations 157 in the child welfare system but would nevertheless benefit from a stable and “permanent, loving home.”583 Same-sex couples and LGBT individuals should not be restricted from helping to meet this need solely because of their sexual orientation or gender identity. Unfortunately, as of July 2006, six states restrict adoption and/or foster care by LGB people and/or same- sex couples.584 Additionally, only 24 states and the District of Columbia permit second parent adoption by a same-sex partner.585 Many youth awaiting placement in foster or adoptive homes are older, ill, or suffering from the consequences of physical or mental abuse. There is a growing body of evidence that LGBT people are adopting these children, who often are placed with LGBT families when social workers determine to turn a blind eye to official regulations.586 There are already a great many children with one or more gay or lesbian parents, with estimates ranging from 1.6 million to 14 million.587 The 2000 Census confirmed that more than one quarter of the nation’s same-sex couple households are raising at least one child under the age of 18. Among the authors who have analyzed parenting by same-sex couples and LGBT indi- viduals is Leslie Cooper of the ACLU’s LGBT Rights Project. In her recently published thorough review of the available academic literature, she finds nothing to suggest that LGBT people cannot be equally effective as parents as their heterosexual counter- parts.588,589 The nonpartisan, academically affiliated Evan B. Donaldson Adoption Institute also conducted a review of the existing literature on adoption by gay and lesbian parents. They proposed a number of policy changes that we endorse as partial solutions to the complex problem of how to best house and support homeless LGBT youth: • Move to end de facto and legal restrictions on adoption by LGBT people. We need uniformity of policies that reflect sound scientific evidence to avoid “decisions about waiting children [being] made at the discretion of individual workers and placement agencies.”590, 591 • Bring honesty into the adoption process by abolishing often-unwritten “don’t ask, don’t tell” policies that bring fear and potentially dishonesty into the adoption process. • Require and enforce appropriate training for all social service workers involved in placing youth so they are truly able to judge what is in the child’s best interests.

583 The Evan B.Donaldson Adoption Institute. (2006, March). Expanding resources for children: Is adoption by gays and lesbians part of the answer for boys and girls who need homes? New York, NY: The Evan B. Donaldson Adoption Institute. 584 See National Gay and Lesbian Task Force. (2006, July). Foster care regulations in U.S. Author. Retrieved September 13, 2006, from http://www.thetaskforce.org/downloads/FosteringMap_06.pdf and National Gay and Lesbian Task Force. (2006, July). Adoption laws in the US. Author. Retrieved September 13, 2006, from http://www.thetaskforce.org/downloads/adoption_laws_06.pdf 585 National Gay and Lesbian Task Force. (2005, January). Second parent adoption in the U.S. Author. Retrieved September 13, 2006, from http://www.thetaskforce.org/downloads/secondparentadoptionmap.pdf 586 Sullivan, R. T. (1994). 587 Patterson, C. J. & Freil, L. V. (2000). Sexual orientation and fertility. In Bentley, G. & Mascie-Taylor, N., Infertility in the modern world: Biosocial perspectives. Cambridge, England: Cambridge University Press. 588 Cooper, L. & Cates, P. (2006). Too high a price: The case against restricting gay parenting. (2nd ed.) New York, NY: American Civil Liberties Union Foundation. 589 The American Academy of Pediatrics (AAP), the American Academy of Family Physicians, the Child Welfare League of America, the National Association of Social Workers, and the American Psychological Association all recognize that gay and lesbian parents are just as good as heterosexual parents and that children thrive in gay- and lesbian-headed families. For example, see: Patterson, C. J. (1995). Lesbian and gay parenting: A resource for psychologists. Retrieved , from http://www.apa.org/pi/parent.html 590 The Evan B.Donaldson Adoption Institute. (2006, March). p.10. 591 Ryan, S. D. (2000). Examining social workers’ placement recommendations of children with gay and lesbian adoptive parents. Families in Society, 81(5). LGBT Youth 158 Homelessness • Explicitly permit same-sex second-parent adoptions. • Promote additional research in this area that informs the public discourse, addresses some of the methodological criticisms made by opponents of adoption by LGBT people and provides support to new LGBT-led families. • While no state law explicitly forbids foster parenting by LGBT persons, there are places where the practice is strongly against placing youth in LGBT homes. Instead, a better policy is that of New Jersey, which expressly forbids staff from discriminating against potential foster parents based on sexual orientation. 4. Discourage the criminalization of homelessness and the activities inherent to the daily lives of people experiencing homelessness. The National Coalition for the Homeless and the National Law Center on Homelessness and Poverty592 have reported on the criminalization of many life sustaining activities asso- ciated with homelessness nationwide.593 Many cities and towns are being creative in their efforts to force homeless people, including youth, out of the public eye. Criminalization efforts are directed at people experiencing homelessness via laws against sleeping, sitting or laying down under certain conditions in certain parts of a town or city, and more subtly, by permitting selective enforcement of other ordinances or even targeting people who feed the homeless in public spaces.594 Pushing people away from downtown areas and into the suburbs takes them away from needed services and serves only to deny the existence of a critical social problem. Often, the result is involvement with the criminal justice system, and ultimately being further away from escaping the streets altogether. These approaches do not address the problems that lead to homelessness, nor are they likely to achieve long-term success in moving everyone into safe, affordable housing. 5. Expand the availability of comprehensive health insurance and services through the age of 24 to all low-income youth via Medicaid. Homeless youth, straight and LGBT, face inadequate access to medical care provision, increased exposure to a wide variety of health risks versus their housed counterparts, and a patchwork of services across the country. While evidence demonstrates that LGBT youth specifically face increased risks of certain health problems, access to health care is crucial for all young people, LGBT or straight. If they are to grow up healthy, optimize educational opportunities, and not lose income because they are unable to work due to an illness or other health condition, access to health care is necessary. The federal Foster Care Independence Act grants states the right to extend Medicaid coverage to people exiting the foster care system, and we propose that this option become a mandate for the states. Some states already extend coverage, though to different ages, and consistency is what is needed. Different federal legislative initiatives that impact the homeless youth population use different age limits to define when a person stops being a youth, and this is part of the problem. The Ryan White Act defines youth as ages 13 to 24 and the Workforce Investment Act

592 For more information, see www.nlchp.org 593 The National Coalition for the Homeless & The National Law Center on Homelessness and Poverty. (2006d). A dream denied: The criminalization of homelessness in U.S. cities. Washington, DC: The National Coalition for the Homeless & The National Law Center on Homelessness and Poverty. See also The National Coalition for the Homeless. (2004). 594 Ibid. p.9. Conclusion and policy recommendations 159 ages youth out of eligibility for its programs at age 24 as well. There is precedence for this age range being used in future adjustments to legislation that assists homeless youth. Youth should not be denied access to basic health care because their family disowned them or because they are escaping sexual or emotional abuse and trying to find a way off the streets or in the child welfare system.

PRACTITIONER-LEVEL RECOMMENDATIONS

1. Require all agencies that seek government funding and licensure to serve homeless youth to demonstrate awareness and cultural competency of LGBT issues and populations at the institutional level and to adopt nondiscrimination policies for LGBT youth. Licensure alone is not sufficient to ensure culturally competent treatment for LGBT homeless youth. At one Michigan residential placement facility, LGBT teens or those suspected of being gay were made to wear orange jumpsuits to alert staff and other residents. At another transitional housing placement, staff removed the bedroom door of an out gay youth, supposedly to ward off any homosexual behavior. The second bed in the room was left empty, with other residents warned that if they misbehaved they would have to share the room with the “gay kid.”595 As part of the initial licensing process that any facility must go through and the renewal of that license in subsequent years, we recommend that state agencies regulating facilities that care for youth mandate the following: • Private and nonprofit entities seeking a license to care for youth must demonstrate that administrators and staff have completed appropriate cultural competency training regarding the provision of safe spaces for LGBT youth prior to issuance of the license. • Agencies must agree to adopt, post and enforce, a state-mandated nondiscrimination policy including sexual orientation and gender identity/expression prior to being licensed to care for youth, with in-service training on the policy available annually. Training should be provided not only to staff but also to all prospective clients during the intake process. • Related to this provision in the licensing process, a nondiscrimination performance standard should be established. Such a standard would ensure that ongoing measure- ment of each agency’s performance would include consideration of their demonstrated capacity to provide fair and equal access to and treatment of LGBT youth. 2. Mandate individual-level LGBT awareness training and demonstrated cultural competency as part of the professional licensing process of all health and social service professions. Staff employed by organizations providing care and support to youth must meet certain educational and licensing standards. There is also an ethical aspect to this recommenda-

595 Both examples were confirmed in personal conversations between the author and social service agency staff who had either worked at the offending agencies or worked with youth who had resided at those agencies. LGBT Youth 160 Homelessness tion, because “[t]he social work code of ethics mandates that social workers must not undertake a social service unless we have the competence or can acquire the competence to provide that service.”596 In many instances, the solution to this dilemma is to deny adequate service rather than to secure the necessary training. States must ensure that LGBT homeless youth are accessing services not just in a space where their safety and equal treatment is directly related to the licensing process, but where individual staff cannot let their personal biases translate into unfair treatment of any clients. Specifically, as part of their licensing examinations, states should test a potential social worker or other counseling staff person’s awareness of the specific needs of LGBT youth and the challenges they face in the social welfare system and beyond. States must work with in-state education establishments that train the workers they hire to ensure that their relevant programs not only incorporate LGBT issues into the variety of classes that make up an MSW program, for example, but also engage those programs in the development of coursework that is specific to the experiences of LGBT youth in the child welfare system. If schools know that their graduates will be tested on these issues as part of their licensing exams, then they will have an incentive to make any necessary curricular changes. Students will also know that ignorance of the issues will only hinder their performance on exams that ultimately dictate their ability to secure a job. Voluntary certification programs for “paraprofessional” youth workers should also include an LGBT awareness component.597 3. Mandate LGBT cultural competency training for all state agency staff who work in child welfare or juvenile justice divisions. Many state child welfare or juvenile justice staff are undereducated about the existence of LGBT clients and their particular issues. While potentially supportive of LGBT youth, many do not know how to raise or discuss LGBT issues with their clients. Cultural competency training is important to promote clear and open communication and to help staff recognize how to create a safe space for all the youth they work with.

CONCLUSION Once implemented, these policy recommendations will help not only LGBT homeless youth, but all youth abandoned by their family or forced to leave home. In this report, we have extensively reviewed the academic and professional literature on the myriad challenges faced by LGBT homeless youth. Despite these challenges, the research also shows that many of these youth are remarkably resilient and that they have benefited from programs like those outlined in our model practice chapters that are designed to help them feel safe, welcome and supported. Regardless of sexual orientation or gender identity, every young person deserves a safe and nurturing environment in which to grow and learn. It is our hope that this report will bring renewed attention to an issue that has been inadequately addressed for far too long.

596 Dame, L. (2004). 597 Paraprofessionals include youth outreach workers, youth developers, health education and risk reduction specialists and case managers. Conclusion and policy recommendations 161 Addendum ESTIMATES OF THE PERCENT OF HOMELESS YOUTH IDENTIFYING AS LGBT This addendum provides a detailed summary of the peer-reviewed, academic journal articles, monographs, newspaper articles and statements from service providers related to the proportion of lesbian, gay or bisexual youth in the total homeless youth population. There is little research on the proportion of these youth who specifically identify as trans- gender, but we include them in our overall estimation based on statements from service providers and youth, which indicate that transgender youth are also disproportionately impacted by homelessness. There has been no national, representative count of homeless youth who identify as lesbian, gay, bisexual or transgender (LGBT). This is why we recommend a comprehensive and appropriately-funded national count. This count will permit researchers and policy analysts to gather more accurate information about exactly which youth are homeless, where and why, and what their experiences are on the streets or with out-of-home-care service providers.

PEER-REVIEWED JOURNALS AND OTHER ACADEMIC SOURCES (ALPHABETICAL ORDER BY AUTHOR’S LAST NAME) 1. Cochran, B. N., Stewart, A. J., Ginzler, J. A. & Cauce, A. M. (2002). Challenges faced by homeless sexual minorities: Comparison of gay, lesbian, bisexual, and transgender homeless adolescents with their heterosexual counterparts. American Journal of Public Health, 92(5). pp.773-776. “It’s difficult to estimate the proportion of GLBT youths in the street population. The National Network of Runaway and Youth Services estimates that about 6% of homeless adolescents are gay or lesbian. However, the few studies assessing sexual orientations of homeless adolescents have revealed rates ranging form 11% to 35%.” (p. 773). 2. Dame, L. (2004). Queer youth in care in Manitoba: An examination of their experiences through their voices. The Canadian Online Journal of Queer Studies in Education, 1(1). “Clatts et. Al (1998) reported that thirty five percent of homeless and/or street- involved youth self-identified as lesbian, gay, or bisexual. That percentage rose to approximately fifty percent when the same author studied street youth in central Manhattan and hypothesized that this larger percentages was a more accurate reflec- LGBT Youth 162 Homelessness tion in larger cities. Similarly Mallon et. Al. (2002) reported a thirty percent rate.” 3. Johnson, T. P. & Graf, I. (2005, December). Unaccompanied homeless youth in Illinois: 2005. Chicago, IL: Survey Research Laboratory - University of Illinois Chicago. “Most [homeless] youth interviewed indicated that they had a heterosexual orientation (85.2%). About 5% considered themselves gay or lesbian (5.3%) and 4.7% considered themselves to be bisexual. The proportion who were currently questioning their sexuality was 3.0%, and 1.8% identified their sexuality as ‘something else.’ There were fewer proportions of heterosexuals among the youth interviewed in Cook County (77.6%) and the City of Chicago (76.9%) [NOTE: This means that 22.4% in Cook County and 24.1% in the City of Chicago identified as gay, lesbian, bisexual or “something else”], compared to the southern Illinois (94.1%) and central Illinois (90.9%), and northern Illinois (83.3%) regions.” (p. 46). 4. Kennedy, M. R. (1991). Homeless and runaway youth mental health issues: No access to the system. Journal of Adolescent Health, 12(7). pp.576-579. “21% identified as gay, lesbian, bisexual or undecided (of the 100 respondents in this study).” (p. 578). 5. Kruks, G. (1991). Gay and lesbian homeless/street youth: Special issues and concerns. Journal of Adolescent Health, 12(7). pp.515-518. “For example, in Los Angeles an estimated 25-35% of street youths are gay and in Seattle an estimated 40%.” (p. 516). 6. Martin, S. R. (1996). A child’s right to be gay: Addressing the emotional maltreatment of queer youth. Hastings Law Journal, 48(1). pp167-182. “Studies suggest that approximately one out of every four queer youth are forced out of their homes because of conflicts with families over their sexual orientation or gender identity. Consequently, queer youth comprise a drastically disproportionate number of the homeless youth in this country. Gary Remafedi found that nearly one half of bisexual and gay young men in one study had run away from home at least once. Yates, et al., conducted a survey that determined that about 13% of the 620 homeless youth that they interviewed were gay, lesbian, bisexual or undecided. Gibson found that as many as 25% of all youth living on the streets in this country are gay or lesbian. However, this figure varies, and is especially higher in urban settings. Abby Abinati, in an interview with the Larkin Street Youth Center in San Francisco, found that of 2,000 homeless teenagers who had contact with the Center, approximately half were gay or lesbian. In Seattle , it is estimated that 40% of street youths are gay, lesbian or bisexual, and in Los Angles the estimate is 30%.” (p. 176). 7. Clatts, M. C., Davis, W. R., Sotheran, J. L. & Aylin, A. (1998). Correlates and distri- bution of HIV risk behaviors among homeless youths in New York City: Implications for prevention and policy. Child Welfare, 77(2). pp.195-207. “Demographic and Behavioral Profile: The majority (74%) of the youths in the sample were male [Clatts & Davis 1993]. Two-thirds identified as ethnic minori- ties, primarily African American (29%) or Hispanic (30%). One-third (35%) self-identified as gay, lesbian, or bisexual.” (p. 199).

Addendum 163 8. Nolan, T. (2006). Outcomes for a transitional living program serving LGBTQ youth in New York City. Child Welfare, 85(2). pp.385-406. “In New York City alone, an estimated 32,000 youth are homeless. One study finds that approximately 25% to 40% of them identify as LGBTQ, while another finds the percentage is close to half.” (p. 388). 9. Ryan, C. & Futterman, D. (1998). Lesbian and gay youth: Care and counseling. New York: Columbia University Press. “Although the actual number of lesbian/gay runaways and ‘throw-aways’ is not known, some estimates suggest that 1 in 4 street youth may be lesbian or gay. Local estimates are even higher. Agencies serving street youth in Los Angeles estimate that 25-35% of homeless youth are lesbian or gay, and in Seattle, 40% of homeless youth are estimated to be gay.” (p. 25). 10. Savin-Williams, R. C. (1994). Verbal and physical abuse as stressors in the lives of lesbian, gay male, and bisexual youths: Association with school problems, running away, substance abuse, prostitution and suicide. Journal of Consulting and Clinical Psychology, 62(2). pp.261-269. “The National Network of Runaway and Youth Services (1991) reported that 6% of all runaways identified themselves as gay or lesbian. Among 12- to 17-year-old African- American and Hispanic male runaways in New York City, 6% considered themselves gay or bisexual. According to the U.S. General Accounting Office, 2% to 3% of homeless and runaway youths who sought services or assistance were reported by shelter staff to be lesbian, gay male and bisexual youths. Another group, street youths who make money from prostitution, were not counted in this 2%-to-3% range. As I note later, many of these youths are likely to be gay male, lesbian, and bisexual teenagers. “These percentages are probably a gross underestimation because few youths are likely to tell authorities and staff their sexual identity. Indeed, investigations of runaways in specific locales have revealed that a much larger percentage of runaway and homeless youths are gay, lesbian, or bisexual For example, 40% of street youths in Seattle and 30% of the runaway youths in Los Angeles identified themselves as lesbian, bisexual, or gay. “When the directionality of the question is reversed and these youths are asked if they have ever run away from home, the percentages are considerably higher. For example, nearly one half of bisexual and gay male youths in one study had run away at least once; many, repeatedly. Many of the youths seeking the assistance of the Los Angeles Gay and Lesbian Community Services Center are runaways and throwaways (youths thrown out of the home by parents) who have had arguments and fights with their parents.” (p. 264). 11. Schaffner, L. (1999). Violence and female delinquency: Gender transgressions and gender invisibility. Berkley Women’s Law Journal, 14. pp.40-65. “Some agencies estimate that, nationally, as high as twenty to forty percent of the runaway and street youth population surviving in the street economy may be gay or lesbian.” (p. 61).

LGBT Youth 164 Homelessness 12. Tenner, A. D., Trevithick, L. A., Wagner, V. & Burch, R. (1998). Seattle YouthCare’s preven- tion, intervention and education program. Journal of Adolescent Health, 23(2). pp.96-106. “...three waves of quantitative data were collected (n=272). The data collected gave YouthCare insight into the characteristics, behaviors and attitudes of street- involved, homeless and sexual minority youth. In the surveys, for example, 37% identified as gay, lesbian, or bisexual.” (pp. 102-103). 13. Unger, J. B., Kipke, M. D., Simon, T. R., Montgomery, S. B. & Johnson, C. J. (1997). Homeless youths and young adults in Los Angeles: Prevalence of mental health problems and the relationship between mental health and substance use disorders. American Journal of Community Psychology, 25(3). pp.371-394. “The chart on page 383 shows that in a study of 342 homeless youths recruited both on the street and at agencies, 18.1% self-identified as gay or bisexual.” (p. 383). 14. Van Leeuwen, J. M., Boyle, S., Salomonsen-Sautel, S., Baker, D. N., Garcia, J. T., Hoffman, A., Hopfer, C. J. (2006). Lesbian, gay, and bisexual homeless youth: An eight-city public health perspective. Child Welfare. 85(2). pp.151-170. “Of the 670 youth participants [NOTE: ages 14-24], 150 (22.4%) identified as LGB. LGB youth and non-LGB youth had a similar mean age of 19, although more LGB youth were female than non-LGB youth.” (p. 159). 15. Wardenski, J. J. (2005). A minor exception?: The impact of Lawrence v. Texas on LGBT youth. Journal of Criminal Law and Criminal Justice, 95(4). pp.1363-1410. “In our nation’s cities, ten of thousands of teenagers live on the streets. In major urban centers like New York, San Francisco, and Chicago, up to half of all these teens may self-identify as lesbian, gay, bisexual, or transgender (LGBT). Nationally, between eleven and forty percent of homeless youth are thought to be LGBT.” (pp. 1363-1364.) 16. Whitbeck, L. B., Chen, X., Hoyt, D. R., Tyler, K. A. & Johnson, K. D. (2004). Mental disorder, subsistence strategies, and victimization among gay, lesbian, and bisexual homeless and runaway adolescents. The Journal of Sex Research, 41(4). pp.329-342. “There are no nationally representative studies of homeless and runaway adoles- cents on which to base estimates of GLB adolescents.... Numbers from systematic studies are somewhat lower and vary by region. In their Hollywood study, Unger, Kipke, Simon, Montgomery, and Johnson (1997) reported that 18% (n=60) self- identified as gay or bisexual. Cochran et al. (2002) reported 22% of their Seattle area sample of 374 homeless and runaway adolescents identified themselves as bisexual, gay, lesbian or transgender. Kennedy (1991) found that 21% of a sample of 100 street youth from the Larkin Street Youth Center in San Francisco self-reported same-sex sexual orientation. Whitbeck & Hoyt (1999) reported that only about 6% self-identified as bisexual, gay or lesbian in a sample of 602 home- less and runaway youth from small and medium-sized cities in four Midwestern states. This lower percentage could reflect geographical location.... Regardless of sample differences, there appears to be a general agreement across studies that about 20% of homeless and runaway adolescents are gay, lesbian, or bisexual in larger magnet cities (e.g. Los Angeles, San Francisco, Seattle) with perhaps a slightly lower proportion in smaller, non-magnet cities.” (pp. 329-330).

Addendum 165 OTHER SOURCES (ALPHABETICAL ORDER BY AUTHOR’S LAST NAME) 17. Dylan, N. (2004). City enters partnership to assist lesbian and gay homeless youth. Nation’s Cities Weekly, 27(10). p.8. “The National Network of Runaway and Youth Services has estimated that 20-40% of youths who become homeless each year are lesbian, gay, or bisexual. For example, the Seattle Commission on Children and Youth found that approxi- mately 40% of homeless youth identified as gay, lesbian, or bisexual.” 18. Feinstein, R., Greenblatt, A., Hass, L., Kohn, S., & Rana, J. (2001). Justice for all: A report on lesbian, gay, bisexual, and transgendered youth in the New York juvenile justice system. Urban Justice Center. Retrieved September 1, 2006, from http://www.urbanjustice. org/pdf/publications/lesbianandgay/justiceforallreport.pdf “One study found that nearly half of bisexual and gay young men had run away from home at least once. Nationally, as few as 25 percent and as many of 40 percent of homeless youth are thought to be LGBT. Such figures are estimated to be even higher in New York City.” (pp. 17-18). 19. Galst, L. (1992, December 29). Throwaway Kids. The Advocate. p.55. “The National Network of Runaway and Youth Services has estimated that 20% to 40% of the 1.3 million kids who become homeless each year are gay, lesbian, and bisexual youth.” 20. Gibson, P. (2006). Gay male and lesbian suicide. Lambda GLBT Community Services. Retrieved September 12, 2006, from http://www.lambda.org/youth_suicide.htm “Gay male, lesbian, bisexual, and transsexual youth comprise as many as 25 percent of all youth living on the streets in this country.” 21. Krisberg, K. (2002). Oregon clinic increases health care access for homeless youth. Nation’s Health, 32(7). p.12. “Gay, lesbian, bisexual, and transgender youth, who, according to (John) Duke, compose about 30 percent of the homeless youth population in Portland.”

LGBT Youth 166 Homelessness References

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Retrieved July 7, 2006, from http://12.46.245.173/pls/portal30/CATALOG. PROGRAM_TEXT_RPT.SHOW?p_arg_names=prog_nbr&p_arg_values=97.024 The City of New York. (2006). Child welfare links, NYC Administration for Children’s Services. Author. Retrieved July 12, 2006, from http://www.nyc.gov/html/acs/html/statis- tics/child_welfare_links.shtml The Evan B.Donaldson Adoption Institute. (2006). Expanding resources for children: Is adoption by gays and lesbians part of the answer for boys and girls who need homes? New York, NY: The Evan B. Donaldson Adoption Institute. The Home for Little Wanderers. (2006). Fall 2004 eNewsletter: Other headlines. Author. Retrieved September 7, 2006, from http://www.thehome.org/site/content/news- letter/2004_fall/other_headlines.asp The Memory Hole. (2005, January 6). Faith-based funding recipients, 2003. Author. Retrieved August 31, 2006, from http://www.thememoryhole.org/pol/faith_based_2003.htm The Mt. Sinai Medical Center. (2006). Adolescent Health Center: Our mission. Author. Retrieved June 21, 2006, from http://www.mountsinai.org/msh/msh_program. jsp?url=clinical_services/ahc.htm The National Coalition for the Homeless. (2004). Illegal to be homeless: The criminalization of homelessness in the United States. Washington, DC: The National Coalition for the Homeless. The National Coalition for the Homeless & The National Law Center on Homelessness and Poverty. (2006). A dream denied: The criminalization of homelessness in U.S. cities. Washington, DC: The National Coalition for the Homeless & The National Law Center on Homelessness and Poverty. Thompson, S. J., Safyer, A. W., & Pollio, D. E. (2001). Differences and predictors of family reunification among subgroups of runaway youths using shelter services. Social Work Research, 25(3) pp. 163-172.

References 179 Truong, J. (2004, October 6). Homeless LGBT youth and LGBT youth in foster care: Overview. The Safe Schools Coalition. Retrieved June 3, 2005, from http://www.safeschoolscoalition. org/RG-homeless.html Tyler, K. A., Hoyt, D. R., Whitbeck, L. B., & Cauce, A. M. (2001). The impact of child- hood sexual abuse on later sexual victimization among runaway youth. Journal of Research on Adolescence, 11(2) pp. 151-176. U.S. Census Bureau. (2000). State and County QuickFacts: Michigan. Author. Retrieved September 10, 2006, from http://quickfacts.census.gov/qfd/states/26000.html U.S. Census Bureau. (2000). Table DP-1. Profile of general demographic characteristics: 2000. Ann Arbor city, Michigan. Author. Retrieved September 10, 2006, from http://censtats.census. gov/data/MI/1602603000.pdf U.S. Census Bureau. (2000). Table DP-1. Profile of general demographic characteristics: 2000. United States. Author. Retrieved September 10, 2006, from http://censtats.census.gov/ data/US/01000.pdf U.S. Census Bureau. (2000). Table DP-1. Profile of general demographic characteristics: 2000. Ypsilanti city, Michigan. Author. Retrieved September 10, 2006, from http://censtats.census. gov/data/MI/1602689140.pdf U.S.Children’s Bureau. (2005). The AFCARS report. Washington, DC: Administration on Children, Youth and Families. U.S.Conference on Mayors (2004, December). A status report on hunger and homelessness in American’s cities: 2004. U.S. Conference of Mayors. Retrieved September 22, 2006, from www.sodexhousa.com/HungerAndHomelessnessReport2004.pdf U.S. Department of Education. (2004, July). Education for Homeless Children and Youth Program. Author. Retrieved July 7, 2006, from http://www.ed.gov/programs/homeless/ guidance.pdf U.S. Department of Health and Human Services. (2006). Health Care for the Homeless, About HCH. Author. Retrieved July 7, 2006, from http://bphc.hrsa.gov/hchirc/about/ default.htm U.S. Department of Health and Human Services. (2006, January 24). The 2006 HHS poverty guidelines. Author. Retrieved October 31, 2006, from http://aspe.hhs.gov/poverty/ 06poverty.shtml U.S. Department of Health & Human Services, Administration for Children and Families. (2006). Street Outreach Program. Author. Retrieved July 5, 2006, from http://www.acf.hhs. gov/grants/open/HHS-2006-ACF-ACYF-YO-0105.html U.S. Department of Health and Human Services: Administration for Children and Families, Family and Youth Services Bureau. (2006, January 9). Family and Youth Services Bureau information memorandum. Author. Retrieved July 6, 2006, from http://www.acf.hhs.gov/ programs/fysb/content/aboutfysb/McKinney-Vento_IM.pdf U.S. Department of Health and Human Services: Family and Youth Services Bureau. (2006). Fact sheet: Basic center program. Author. Retrieved September 10, 2006, from http://www. acf.hhs.gov/programs/fysb/content/youthdivision/programs/bcpfactsheet.htm

LGBT Youth 180 Homelessness U.S. Department of Health and Human Services: Health Resources and Services Administration. (2006). Bureau of primary health care: Healthcare for the homeless infor- mation resource center - About HCH. Author. Retrieved September 10, 2006, from http:// bphc.hrsa.gov/hchirc/about/comp_response.htm U.S. Department of Housing and Urban Development. (2003, October 3). HUD’s mission. Author. Retrieved October 31, 2006, from http://www.hud.gov/library/bookshelf12/ hudmission.cfm U.S. Department of Housing and Urban Development. (2003, December 19). CPD: 2003 Competitive and FY 2004 Formula Grant Awards. Author. Retrieved July 5, 2006, from http://www.hud.gov/offices/cpd/homeless/budget/2003/index.cfm U.S. Department of Housing and Urban Development. (2006, October 13). Homeless. Author. Retrieved October 31, 2006, from http://www.hud.gov/homeless/index.cfm U.S.News & World Report. (1977, January 17). Why children are running away in record numbers. p. 62. U.S. Office of Management and Budget. (2006). Budget of the United States Government, FY 2007, Department of Housing and Urban Development. Author. Retrieved July 7, 2006, from http://www.whitehouse.gov/omb/budget/fy2007/hud.html Unger, J. B., Kipke, M. D., Simon, T. R., Montgomery, S. B., & Johnson, C. J. (1997). Homeless youths and young adults in Los Angeles: Prevalence of mental health problems and the relationship between mental health and substance use disorders. American Journal of Community Psychology, 25(3) pp. 371-394. United Way of America. (2006). Our work. Author. Retrieved September 10, 2006, from http:// national.unitedway.org/ourwork/index.cfm Uptown Publications. (2003). ‘It doesn’t have to be tragic’. Author. Retrieved September 15, 2005, from http://www.gaylesbiantimes.com Urrutia, P. (2000). Program seeks to assist homeless gay youth. The Circle: News from an American Indian Perspective, 21(4) p. 6. Van Leeuwen, J., Boyle, S., & Yancy, A. (2004, December). Urban Peak public health survey report 2004: A multi-city collaborative. Unpublished work. Van Leeuwen, J. M., Boyle, S., Salmonsen-Sautel, S., Baker, D. N., Garcia, J., Hoffman, A., & Hopfer, C. J. (2006). Lesbian, gay and bisexual homeless youth: An eight city public health perspec- tive. Unpublished work. Van Leeuwen, J. (2004). Reaching the hard to reach: Innovative housing for homeless youth through strategic partnerships. Child Welfare, 83(5) pp. 453-468. Wagner, L. S., Carlin, L., Cauce, A. M., & Tenner, A. (2001). A snapshot of homeless youth in Seattle: Their characteristics, behaviors and beliefs about HIV protective strategies. Journal of Community Health, 26(3) pp. 219-232. Weber, A. E., Boivin, J.-F., Blais, L., Haley, N., & Roy, E. (2004). Predictors of initiation into prostitution among female street youths. Journal of Urban Health: Bulletin of the New York Academy of Medicine, 81(4) pp. 584-595. Weinstein, H. & DiMassa, C. M. (4-15-2006). Justices hand L.A.’s homeless a victory. Los Angeles Times. Retrieved October 31, 2006, from http://www.latimes.com/news/local/la- me-homeless15apr15,0,2130546.story?coll=la-home-headlines

References 181 Wen, P. (2002, October 22). For gay teens, a place to call home - state facility third in nation to address their specific needs gay, bisexual teens have a new place they can call home. Boston Globe. p. B1 Whitbeck, L. B., Chen, X., Hoyt, D. R., Tyler, K. A., & Johnson, K. D. (2004). Mental disorder, subsistence strategies, and victimization among gay, lesbian, and bisexual homeless and runaway adolescents. The Journal of Sex Research, 41(4) pp. 329-342. Whitbeck, L. B. & Hoyt, D. R. (1999). Nowhere to grow: Homeless and runaway adolescents and their families. Hawthorne, NY: Aldine de Gruyter. Whitbeck, L. B. & Simons, R. L. (1990). Life on the streets: The victimization of runaway and homeless adolescents. Youth and Society, 22(1) pp. 108-125. White House office of faith-based and community initiatives. (2004, March 2). Select grants to faith-based organizations at five agencies. Author. Retrieved August 31, 2006, from http://www. whitehouse.gov/government/fbci/3-2_final_pres.pdf White House Office of Faith-Based and Community Initiatives. (2005). Protecting the civil rights and religious liberty of faith-based organizations: Why religious hiring rights must be preserved. Author. Retrieved July 11, 2006, from http://www.whitehouse.gov/govern- ment/fbci/religious-hiring-booklet-2005.pdf White House Office of Faith-Based and Community Initiatives. (2006). Helping those in need: An overview of the federal grants process. Author. Retrieved July 5, 2006, from http:// www.whitehouse.gov/government/fbci/guidance/helping.htm White House Office of Faith-Based and Community Initiatives. (2006). President Bush’s faith-based and community initiative. Author. Retrieved August 31, 2006, from http://www. whitehouse.gov/government/fbci/mission.html Wilder Research. (2005). Homeless youth in Minnesota: 2003 statewide survey of people without permanent shelter. Author. Retrieved June 26, 2006, from http://www.wilder.org/download .0.html?report=410 Williams, N. R., Lindsey, E. W., Kurtz, P. D., & Jarvis, S. (2001). From trauma to resiliency: Lessons from former runaway and homeless youth. Journal of Youth Studies, 4(2) pp. 233-253. Winton, R. (9-19-2006). Plan would end homeless “tent cities”. Los Angeles Times. Retrieved October 31, 2006, from http://www.latimes.com/news/local/la-me-homeless19sep19,0,65 87007.story?coll=la-home-headlines Wooden, W. & Parker, J. (1982). Men behind bars. New York: Plenum Press. www.infoplease.com. (2006). State minimum wage rates. Author. Retrieved September 11, 2006, from http://www.infoplease.com/ipa/A0930886.html Yoder, K. A., Hoyt, D. R., & Whitbeck, L. B. (1998). Suicidal behavior among homeless and runaway adolescents. Journal of Youth and Adolescence, 27(6) pp. 753-771. Youth Emergency Assistance Hostel. (2006). Our program. Author. Retrieved August 19, 2006, from http://www.yeah-berkeley.org/page2.php

LGBT Youth 182 Homelessness Acknowledgments CONTRIBUTORS AND REVIEWERS AUTHOR Nicholas Ray, M.A., policy analyst, National Gay and Lesbian Task Force Policy Institute

CONTRIBUTORS Colby Berger Susan Boyle Mary Jo Callan Grace McClelland Theresa Nolan Mia White

EDITORIAL AND RESEARCH ASSISTANCE Eleanor D. (Eldie) Acheson; Jane Andersen; Leona Bessonova; Sean Cahill, Ph.D.; Jason Cianciotto, M.P.A.; Matt Foreman; R. Fureigh; Sarah Kennedy; Becky Levin; Lisa Mottet; Roberta Sklar; Inga Sarda-Sorensen; Pedro Julio Serrano; Dorrit Walsh

REVIEWERS Michael Stoops, interim executive director, National Coalition for the Homeless Jessica Schuler, policy analyst, National Coalition for the Homeless Bob Reeg, M.P.A., public policy consultant, National Coalition for the Homeless Craig Bowman, executive director, National Youth Advocacy Coalition

GRAPHIC DESIGNER Samuel Buggeln

183 TASK FORCE BOARD OF DIRECTORS Alan T. Acosta (Co-Chair) Ernest C. Hopkins Director of Communications, Director of Federal Affairs, Stanford University San Francisco AIDS Foundation Stanford, CA San Francisco, CA

Mark M. Sexton (Co-Chair)* Alan Horowitz Attorney Coordinator, Out for Equity Program New York, NY St. Paul, MN

Paula Redd Zeman (Vice Chair)* Hans Johnson Commissioner of Human Resources, President, Progressive Victory Westchester County Government Washington, DC Mamaroneck, NY Eric von Kuersteiner Jody Laine (Secretary) President and Chief Operating Officer, Owner, Tiempo Timepieces & Jewelry Pines Commercial Properties LLC Seattle, WA New York, NY

Maureen Burnley (Treasurer) Stephen Macias Vice President for Finance and Operations, Senior Vice President of Corporate and General Theological Seminary Marketing Communications, Here! Networks New York, NY Los Angeles, CA

John M. Allen* Mary Morten Partner, Allen Brothers Attorneys President, Morten Group and Counselors, PLLC Chicago, IL Detroit, MI Andrew Ogilvie Michael Aller Personal Fitness Trainer Director of Tourism and Convention Los Angeles, CA Chief of Protocol, City of Miami Beach Miami Beach, FL Loren S. Ostrow* Attorney Marsha C. Botzer** Los Angeles, CA Consultant, Botzer Consulting Seattle, WA Ken Ranftle Former Vice President of Human Margaret A. Burd* Resources for Asia Pacific, IBM President, Magpie Telecom Insiders, Inc. New York, NY Thornton, CO Charles Renslow Jerry N. Clark CEO, Renslow Family Enterprises President, Clark Associates Chicago, IL Washington, DC Lee Rubin David da Silva Cornell Associate Vice President for Marketing Attorney Communications, SAVVIS, Inc. Miami Beach, FL Chevy Chase, MD

Julie R. Davis Moonhawk River Stone Principal, The Fundamentals Consortium Psychotherapist San Francisco, CA Albany, NY

Sarah N. Fletcher Kevin Wayne Williams, M.D., J.D. Senior Financial Analyst, Microsoft Corp. Director/Team Leader of Infectious Diseases & Redmond, WA HIV Regional Medical & Research Specialists Pfizer, Inc. William Forrest New York, NY Associate Principal, McKinsey and Company Chicago, IL Hope Wine, Psy.D. Clinical Psychologist, Mario Guerrero Dr. Hope Wine and Associates Public Affairs Manager, Miami Beach, FL Bienestar Human Service, Inc. La Puente, CA * serves on both c3 & c4 ** serves on c4 only LGBT Youth 184 Homelessness TASK FORCE STAFF ADMINISTRATION Moof Mayeda Sue Hyde AND FINANCE Senior Field Organizer Director of Creating Change Matt Foreman Rodney McKenzie Leo Ospina Executive Director Project Director, Organizing Creating Change Intern & Training Rea Carey Robin Wood Sarah E. Reece Deputy Executive Director Movement Building Intern Project Director, Organizing Brian Johnson & Training POLICY INSTITUTE Deputy Executive Director of COMMUNICATIONS Sean Cahill Finance and Administration Director of Policy Institute Sandi Greene Roberta Sklar Director of Communications Jason Cianciotto Director of Administration Research Director Monique Hoeflinger Inga Sarda-Sorensen Deputy Director of Alain Dang Special Assistant to the Policy Analyst Executive Director Communications Pedro Julio Serrano Nick Ray Julie Childs Policy Analyst Executive Assistant to the Communications Associate Deputy Executive Director Dorrit Walsh Sarah Kennedy Vaid Fellow Alexes Anderson Web Manager Database Associate Rebecca Fureigh DEVELOPMENT Messenger-Anderson Intern Ellen Kitzerow Robert J. Shaw Assistant to the Executive PUBLIC POLICY & Director of Development Office & New York Office GOVERNMENT AFFAIRS Siana-Lea Gildard Mike Lloyd Director of Membership, Accounting & Human Dave Noble Foundation & Corporate Giving Resources Manager Director of Public Policy & Government Affairs Janice Thom Charles E. Matiella Director of Special Events Senior Technology Manager Amber Hollibaugh Senior Strategist Michael Bath Barney A. Thomas, Jr. Special Events Manager Becky Levin Finance Associate Senior Government Lindsay Bubar Marlene Tovar Affairs Strategist Special Events Manager Receptionist & Lisa Mottet Rueben Gonzales Operations Assistant Transgender Civil Rights Major Gifts Officer Project Director Henry Woodside Todd Kimmelman Database Administrator Kara Suffredini Major Gifts Officer State Legislative Director ORGANIZING & TRAINING Shayla Sellars Rebecca Voelkel Major Gifts Officer Thalia Zepatos Institute for Welcoming Director of Organizing & Training Resources Program Director S.E. Towne Membership Manager Dan Hawes Becca Levin Deputy Director of Law Fellow Alex Breitman Organizing & Training Development Intern Michelle Stecker Rebecca Ahuja Law Fellow Philippe Lebel Field Organizer Development Intern MOVEMENT BUILDING Jonathan Boland Erika Grace Nelson Field Organizer Russell Roybal Development Intern Director of Movement Building Jason Cooper Senior Field Organizer Lisa Weiner-Mahfuz Capacity Building Project Director

185 Task Force Funders FOUNDATIONS We extend our thanks to the following foundations that have provided general operating and program related funding to the National Gay and Lesbian Task Force Foundation: $3 million $50,000 to $99,999 $10,000 to $24,999 Arcus Foundation David Bohnett Foundation David Geffen Foundation Kevin J. Mossier Foundation Institute of Gay and Lesbian $1 million to $2,999,999 Open Society Institute Strategic Studies Anonymous Unitarian Universalist Veatch The Overbrook Foundation $300,000 to $999,999 Program at Shelter Rock Wells Fargo Foundation $5000 to $9,999 Ford Foundation Kicking Assets Fund of the Tides Gill Foundation $25,000 to $49,999 Foundation The Allan Morrow E. Rhodes and Leona B. Foundation, Inc. Carpenter Foundation $100,000 to $299,999 Johnson Family Foundation Evelyn and Walter Haas, Jr. Fund Anderson Prize Foundation

CORPORATIONS We extend our thanks to the following companies for their generous support: The Advocate Bel Age Hotel, Olivia American Airlines West Hollywood Wells Fargo Bacardi USA here!

LEADERSHIP COUNCIL We extend a heartfelt thanks to our Leadership Council members for their continued support of the Task Force Foundation and NGLTF, Inc. Leadership Council members make an annual pledge of $1,500 or more and give the Task Force the flexibility to build grassroots lesbian, gay, bisexual and transgender political power across the nation. The donors listed below made pledges from July 1, 2005, to October 31, 2006. If we have inadvertently omitted or incorrectly listed your name, please contact Shay Sellars, major gifts officer, at 646.358.1477. President’s Circle Vice President’s Circle Executive Circle ($100,000 and up ) ($50,000 to $99,999) ($25,000 to $49,999) Anonymous Anonymous Greg Berlanti John Stryker Jeffrey B. Soref Merrill Lynch Henry van Ameringen Ric Weiland LGBT Youth 186 Homelessness Ambassador’s Circle John Allen & Kelly Sueoka & ($10,000 to $24,999) Stephen P. Orlando Curtis Woodworth Anonymous (2) Ralph Alpert Tourisme Montreal Tom Bombardier & John Fowler Atlantis Events, Inc. United Federation of Teachers Donald Capoccia Bruce W. Bastian United Teachers of Los Angeles Community Foundation, Inc. Michael A. Becker & Urvashi Vaid & Kate Clinton Dade Community Foundation Tee Scatuorchio Ignacio Valdes & Damon Wolf Matt Foreman & Bruce Berger James D. Wagner Francisco De León Alan J. Bernstein & Family Walgreens Specialty Pharmacy James D. Garbus & James Samuel Blum & Washington Mutual Bank Vinett Milenko Samaldzich Kevin Wayne Williams, M.D., Allan D. Gilmour & Eric Jirgens Margaret A. Burd & J.D., M.P.H. Tim Hanlon/Wells Fargo Rebecca A. Brinkman Stephen E. Herbits Martin Burley Advocate’s Circle Steven Holley California Community ($2,500 to $4,999) James C. Hormel & Tim Wu Foundation Alan Acosta & Thomas Gratz H. Scott Huizenga City Of Miami Beach Mario Acosta J. Russell Jackson Jerry N. Clark Akerman Senterfitt Sheila C. Johnson David Cornell Kevin Allan Kaiser Permanente Darden Restaurants American Federation of Amy S. Mandel Robert P. Denny Government Employees District 12 Merrill-Stevens/Hugh Westbrook Alexander Diaz & Carole Shields Monica Graham American Federation of State, Sandi Greene County and Municipal The Miami Herald Employees George Heidorn & David Mizener & Susan E. Anderson Arturo Carrillo Margaret Rothschild Anonymous Michael H. Morris & Richard David W. Husch Blinkal K-Y® Brand Intrigue Atlantis Events, Inc. National Education Association David Kane April Ayers Stanley Newman & Jeremiah F. Kelly, M.D. & Robert Bacigalupi & Brian Rosenthal Paul G. Oostenbrug David Schwing Loren S. Ostrow & Robert Kroupa Alvin H. Baum, Jr. Brian Newkirk Kenneth Kuchin Astraea Lesbian Foundation for Justice PAPI, Inc. Robert W. Kuhn & James G. Pepper Steven Geyer C. David Bedford Ken Ranftle & Craig Leiby Claire N. Lucas BellSouth Shad Reinstein & Jody Laine Macy’s Leslie Belzberg Daniel Renberg & Louis Martarano Frank Benedetti & Thomas G. Trowbridge Eugene Kapaloski Carol Master & Sherry Mayrent Bilzin Sumberg Baena Price & William J. Resnick & Douglas Friedrike Merck Cordell Axelrod LLP Miami-Dade County Department Thomas A. Blount Emily Rosenberg & of Cultural Affairs Louis Bradbury Darlene Demanicor Paramount Pictures Group A. Hugh Broadus Frank R. Selvaggi & Bill Shea Planned Parenthood Los Angeles Mark M. Sexton & Gregory N. Brown & Michael Ravitch & Linton Stables W. Kirk Wallace Daniel Hurewicz Christopher H. Browne & Skadden, Arps, Slate, Meagher Paul Reitz & David Rosen & Flom LLP Andrew Gordon Lee Rubin & Jim Walker Ted Snowdon David C. Bryan SEIU United Health Care Bunnell, Woulfe, Kirschbaum, Natalie Soref & Norman Soref Workers James O. Stepp & Keller, McIntyre & Gregoire P.A Service Employees Jorge Cao & Donald C. Thomas Peter K. Zimmer International Union Rea Carey Andrew Tobias & Charles Nolan Curtis F. Shepard & Olive F. Watson & Alan Hergott Jerry F. Chasen & Mark F. Kirby Joanna Grover/Watson Andrew I. Shore David A. Clark Williamson Cadillac-HUMMER Showtime Networks, Inc. Bruce L. Cohen Herbert I. Cohen, M.D. & Director’s Circle John A. Silberman & Elliot Carlen Daniel C. Cook ($5,000 to $9,999) Andrew W. Solomon & Candy S. Cox & 2(x)ist John Habitch Debra L. Peevey Anonymous Marla & Phyllis Stevens Cary Davidson & Eleanor D. Acheson Andrew Ogilvie

187 Julie R. Davis & Nancy D. Polikoff Marsha C. Botzer & Kim Harms Kathryn Ann Stebner Wendy Reiner & Amy Mallor Gary Boston Eddie’s Pharmacy, Inc. Charles W. Robbins & Maureen Burnley & Ruth E. Eisenberg/Harmon, Damon Romine Tatiana Carayannis Curran, Spielberg & Eisenberg Russell David Roybal Amity P. Buxton Richter Elser Alan Sands & Pablo Montes Nicholas Boyias Joseph Evall & Rich Lynn Elliott R. Sernel Sean Cahill Michael Fleming Sanford & Doris Slavin Glenn Carlson & Food & Friends, Inc. Foundation, Inc. Michael Childers Steve Frankel & Dan Ricketts Loren Dunlap Smith Larry Chanen & Jack Burkhalter Liebe & Seth Gadinsky Robert J. Smolin Julie A. Childs & Sara Speargas GMRI, Inc. South Beach Sports Club Jason Cianciotto & Greater Miami Convention & Peter Staley Courter Simmons Visitors Bureau Ronna Stamm, Paul Lehman, Chris Coad & Kevin Kowalski Greenberg Traurig, P.A. and Jonathan Lehman William H. Cochran Earl Greenburg & David Peet Richard J. Stanley Communications Workers of Dana S. Greenwald, D.D.S. & Linda Swartz & Jessica Seaton America AFL-CIO Suzanne Goldstein TCR, Inc. Communion Foundation Marjorie J. Hill, Ph.D. & Janice E. Thom & Ryan Conley Stacey Bridgeman Mary Ann Moran Steven D. Connor & Holland & Knight Charitable UNITE HERE! Joel B. Connor Foundation, Inc. United Way Of Miami Dade Ross Crowe & Scott Hartle Ernest C. Hopkins John Venekamp & Susan Culligan & Julie Weaver Douglas Houghton Clifford Schireson Tom Culligan & Paul Menard Human Rights Campaign W Fort Lauderdale Hotel & Darrel Cummings & Tim Dang International Brotherhood Residences Erin Daniels of Teamsters Leonie A. Walker & Colgate W. Darden IV Jerri Jankins Katherine A. O’Hanlan Donald E. Davis Rick Jung David M. Waterbury & Steve Deggendorf & Lance R. Kash Ruth Waterbury Dennis McClellan Michael Katovitz & Clay Williams & David Groff Donna Deitch J. Goodwin Bland Gail P. Williams & Robert Dockendorff Dawn McCall Michael E. Koetting & Clay Doherty Stephen Saletan Dr. Hope Wine & Mary Prados Lynn B. Dorio Heymi J. Kuriel & Dr. Myron Wojtowycz John R. Dreyer & William Georgiadls Ms. Paula R. Zeman & Jonathan D. Cutler Jeffrey C. Lamkin Rev. Deborah G. Tammearu Doug Elliott Janine Laudisio William J. Zwart & Julie R. Enszer & David Berchenbriter Jane J. Lea & Jennifer L. Shanon Kimberly A. Sherrill Rev. Clement W. Lee & Jeffrey Erdman Martin A. Witt Delegate’s Circle Brian Esser & Kevin O’Leary Michael A. Leppen ($1,500 to $2,499) Andy Fair Jeffrey Levi & AB Data Joseph Falk Lawrence R. Deyton, M.D. American Federation of State, Michael J. Field & Kerry Lobel & Marta Drury County and Municipal Employees Jeffrey J. Arnstein Mario Magcalas & Robert J. Flavell & Thomas F. Ruzicka American Federation of Teachers AFL-CIO Ronald Baker Master Entertainment Jane Anderson & Tess Ayers Neil Flax Mary Beth McInerney & Dwight Foley Susan Barclay Jeffrey C. Anderson & Jeff T. Soukup Kevin F. Foley & Stephen Littell Rodney McKenzie W. Chip Arndt The Seattle Commission for Carlos Medina & Denis Cagna Steven K. Aurand & Sexual Minorities Bill Melamed Mathias Dadou Frank E. Gainer, III & MELLON Eric Bacolas & Michael Bonomo Ramon Santos Mike Shaw Subaru Marc L. Baum Daniel B. Gelfand Weston F. Milliken Stephen L. Bennett & Danny R. Gibson & Ralph L. Pellecchio & Craig Ferrier William E. Weinberger James Wernz Andrew Berman & J. T. Todd Ian Gibson-Smith & People For The American Way Diane Bernard Nathan Langdon Foundation Dana Beyer Siana-Lea V. Gildard & Woody N. Peterson David Bjork & Jeff Bengtson Edgar Aguirre Katharine Pillsbury & Ron Ginsburg/Meadowbrooks Cindy Marshall Fred Bonaccorsi & David McCann Partners LGBT Youth 188 Homelessness Tobler Glandorf Arthur S. Leonard Sarah E. Reece & Stephen Glassman Lesbian Equity Foundation/ Kathleen Campisano GLSEN South Florida Kathy Levinson Charles Renslow Emily Gochis Jay Lesiger & Tom Klebba Sarah Lynn Rosenthal & Michael D. Graubert Franklin Levine Jennifer Hinchey Grec Luis Development, Ltd. Burt A. Levitch Clifford Richner Jan Griesinger Barry Lipscomb David Russ Samuel Grubman & Paul Morris Benjamin Lipton & Steven Ball Wayne M. Ryerson & George F. Finch Kenneth P. Hahn & Michael K. Longacre Louis Mangual Elinore C. Lyon Mirian Saez & Julian Potter Robert J. Haman Arthur E. Macbeth Michael D. Schuenemeyer & Rowen Garcia Eric Hankin & Mickey MacIntyre & Richard C. Milstein, Esq. Scollay Petry Thomas R. Scott, M.D. Dean Hansell & Donna Marburger Marianne G. C. Seggerman Jason Murakawa David L. Martin SEIU Local 660 CLC Thomas W. Harshman & Grant Martin & Paul Fromberg Bill Shaw & Dennis Lynch Stan Gwyn Ilane L. Mathews & Neal E. Sheldon Donald J. Hayden & Neena Giallombardo Sabrina Shulman & Michael Mertens Steven Melov & Rosemary E. Coluccio Sheila Healy & Liselle La France James A. Goddard Bruce T. Sloane Vincent Healy Robert F. Miailovich Constanza Sol & Pilar Martin Jason Heffner & John Davis Charles R. Middleton, Ph.D. & Steven Spector & Robert Ripps Jane A. Hoffman John S. Geary Ann Stanback David Hollander & Judy R. Moats Frank Stark Robert Shaw Katharine Moore Frank Stiriti Jim Hooker Babak Movahedi Timothy J. Sweeney Daniel R. Hovenstine Michael Muska & Evan Sweet Stephen B. Thayer & Bob Howard NARAL Pro-Choice America Howard Terry Frank J. Howell National Stonewall Democrats Frank Tierney Sue Hyde & Jade McGleughlin National UAW Community James Toledano Lawrence R. Hyer Action Program Trigg Laboratories, Inc. Yosbel Ibarra & Drew Stoudt Colette J. Nellett & Will Trinkle & Juan Granados Buchanan Ingersoll Lori Bestervelt Richard R. Upton & Michael Isbell Maury Newburger & Josef Gonzalez Harold L. Ivey Sheldon Winicour Scott Vaughan & Rene Amaral Lorri L. Jean & Gina M. Calvelli Joyce Newstat & Carl Volpe Susan Lowenberg Patrick Joggerst & Jeff Gurciullo Cuc Vu Scott Newton Brian A. Johnson Marc Ware & Robert F. Nunes Dennis Nix Donald W. Johnson Reverend James Webb, Jr. Dave Noble Kent Johnson & Cody Blomberg John D. Weeden & Tom Norton J. Kevin Jones & Tony De Sousa David Davies Robert L. Noven, M.D. & Jolie Justus & Lana Knedlik Hugh A. Westbrook & Steven R. Pearson Carole Shields Westbrook Mitchell Karp Charles J. O’Byrne William White Mara Keisling Audrey Palomarez Whitman-Walker Clinic, Inc. Kelly Brock Enterprises, Inc. David Pena Roderic J. Williams J. Christopher Kennedy Tim Pierce & Eric Schor Leslie S. Wilkes Mark T. King & Michael J. Piore & Jonathan D. Lubin Richard Winger Rodney Yoder Kintera Douglas Wingo & Tim Legg Pillsbury, Winthrop, Shaw and Henry Woodside Noel E. Kirnon Pittman Steven Wozencraft Joel Kokiel & Peter Regalado Milo Pinkerton & Virgil Taus Sy Young & John Wong Alan M. Koral Planned Parenthood Federation Beth Zemsky & Kenneth Kramm of America, Inc. Jennifer F. Martin Jose E. Labiosa Paula Prettyman & David Ziff & Alan Bell Richard A. La Cava Kelly Schlageter Harvey Zuckman & Rose LaFemina David Price & Philip Oxman Michael Lammons Juan C. Rodriguez Daniel W. Lass & Peter Kruzan Rick Rankin & Jared Fortunato

Task Force funders 189 policy institute bestsellers download at www.thetaskforce.org Hispanic and Latino False Youth in the Same-Sex Couple Promises Crosshairs Households in the HOW THE RIGHT DEPLOYS United States HOMOPHOBIA TO WIN SUPPORT THE THIRD WAVE OF FROM AFRICAN-AMERICANS EX-GAY ACTIVISM A REPORT FROM THE 2000 CENSUS by Nicholas Ray by Jason Cianciotto and Sean Cahill by Jason Cianciotto False Promises highlights Republican Youth in the Crosshairs examines the ex- Post the success of anti-same-sex mar- attempts to bring African-Americans “back gay movement’s new tactic of targeting riage ballot measures in the 2004 elec- home” to the Republican Party by focusing lesbian, gay and bisexual youth for “con- tion, anti-LGBT political and religious on so-called “moral values” issues, specifi- version therapy” and “preventive” mea- leaders are supporting the next wave of cally the supposed threat of same-sex mar- sures for its own political gain. It reveals anti-marriage and anti-parenting laws and riage. Within the context of this strategy to how groups such as Exodus International ballot measures in a number of states with attract black voters, we analyze the voting and Focus on the Family promote widely large Hispanic populations, including behavior of key conservative members discredited theories on homosexuality and California and Florida. This study sheds of Congress. We find that the strongest recommend treatments for children as light on the over 105,000 Hispanic advocates of a “morals values” agenda are young as five years old despite the grow- same-sex couple households counted the members of Congress least likely to ing body of research that shows these in the 2000 Census, nearly half with support issues of real significance to the treatments to be ineffective and extremely children, who are disproportionately African-American community. harmful for many participants. harmed by such anti-LGBT legislation. April 2006 March 2006 November 2005

A REPORT FROM Selling Us “Love Won Out: Transitioning Short Addressing, HOW SOCIAL SECURITY Understanding, our Shelters PRIVATIZATION WILL AFFECT and Preventing A GUIDE FOR MAKING LESBIAN, GAY, BISEXUAL AND HOMELESS SHELTERS SAFE TRANSGENDER AMERICANS Homosexuality” FOR TRANSGENDER PEOPLE by Mandy Hu by Cynthia Burack and Jyl J. Josephson by Lisa Mottet and John M. Ohle

Selling Us Short highlights the dispro- This report provides a first-hand account The problem of unsafe shelters for trans- portionate impact of President Bush’s of an “ex-gay” conference sponsored by gender people is pervasive. Transitioning plan to privatize Social Security on the evangelical Christian group Focus on our Shelters is a guide designed for LGBT Americans. LGBT Americans, on the Family. The report’s authors detail the shelters that want to provide safe shelter average, have lower incomes than their theories and world views espoused by for transgender people but are not sure heterosexual counterparts, and they are the presenters and “ex-gay” leaders who how to do so. A joint publication of the less able to keep what they earn. This spoke at the conference, one of at least Task Force and the National Coalition for translates into lower Social Security four sponsored annually by Focus on the the Homeless, the Guide provides many payments in retirement. This report Family around the country. It also provides answers to concerns about safety and pri- also explains how the cuts in retirement information and analysis about the “Love vacy for transgender residents based on benefits for all but the poorest workers Won Out” ministry, and concludes with successes at real shelters across the country, inherent to Bush’s plan will dispropor- some political implications of the “ex-gay” the bulk of which are addressed without tionately hurt LGBT elders. movement for LGBT people. monetary expenditures. August 2004 May 2004 January 2004