Sexuality Research & Social Policy http://nsrc.sfsu.edu March 2008 Vol. 5, No. 1 And by the Way, Do You Know He Thinks He’s a Girl? The Failures of Law, Policy, and Legal Representation for Transgender Youth in Juvenile Delinquency Courts Jody Marksamer Abstract: Because of the persistence of bias and discrimination against transgender people generally, the societal lack of understanding of gender and sexuality, and a distrust of difference, transgender youth are at high risk for involvement in the juvenile justice system. For many of these youth, their gender identity is relevant both to why they were arrested and to their needs once they are brought into the courtroom. This article discusses how law, policy, and legal representation are regularly failing trans- gender youth in juvenile delinquency systems throughout the United States. The author concludes by posing policy and system recommendations that will address these failures. Key words: equality; discrimination; homophobia; juvenile defense; gender identity; transsexual The persistence of bias and discrimination against in the juvenile justice system. Although exact numbers are transgender1 people generally, the societal lack of not available, initial research (Feinstein, Greenblatt, Hass, understanding of gender and sexuality, and a distrust of dif- Kohn, & Rana, 2001; Wilber, Ryan, & Marksamer, 2006; ference put transgender youth at high risk for involvement Woronoff, Estrada, & Sommer, 2006) has documented that transgender youth are overrepresented in juvenile justice settings. For many of these youth, their gender 2 1 Transgender is an umbrella term used to describe a wide identity is relevant both to why they were arrested and to range of identities and experiences, including transsexual their needs once they are in the courtroom. Unfortunately, people and others whose appearance or characteristics are however, the current reality is that lawyers, judges, and perceived to be gender atypical. This term includes both those who undergo medical treatment to alter their physi- other juvenile justice personnel are typically unprepared cal appearance to match their internal gender identity and to ask the right questions, provide supportive services, or those who live as the other gender without any medical meet the needs of transgender youth and, too often, the treatment. It can include people who are not transsexual but who do not fit gender stereotypes, such as women who juvenile justice system is outwardly hostile and unapolo- are seen as masculine, men who are seen as feminine, and getically punitive toward these youth. In addition to people whose gender expression is not clearly definable as masculine or feminine. Transgender people may begin to understand or express their gender at different points during their lives—as chil- 2 The term gender identity refers to a person’s internal, dren or youth, or when they are middle-aged or even deeply felt sense of being male or female—a person’s elderly. As medical science has learned more about gender psychological identification as masculine or feminine. Most identity and gender expression, it has become clear that people’s gender identity corresponds to their physical body, individuals cannot, or should not be asked to, change these a correspondence that does not necessarily hold true for deep-seated characteristics. transgender individuals. Address correspondence concerning this article to Jody Marksamer, National Center for Lesbian Rights, 870 Market Street, Suite 370, San Francisco, CA 94102. E-mail: [email protected] Sexuality Research & Social Policy, Vol. 5, Issue 1, pp. 72–92, electronic ISSN 1553-6610. © 2008 by the National Sexuality Research Center. All rights reserved. Please direct all requests for permissions to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp 72 SEXUALITY RESEARCH & SOCIAL POLICY individual bias and lack of understanding of gender and away from home, drop out of school, or enter the child wel- sexuality, other factors, such as a shortage of programs and fare system (Ryan & Diaz, 2005; Wilber et al., 2006). services that can competently serve transgender youth, Without the support of their families, transgender youth cause transgender youth to be placed in high-security are at risk for depression, suicide, substance abuse, HIV correctional facilities rather than back with their families infection, and prostitution (Mallon & DeCrescenzo, 2006; or in community-based treatment settings that are more Ryan & Diaz; Wilber et al.). All of these risk factors increase appropriate for their needs. In these high-security facilities, the likelihood that a young person will become involved staff members subject transgender youth to intensive with the juvenile delinquency system. gender and sexuality policing, literally forcing gender Most parents expect their children to have so-called conformity on them in the guise of a treatment plan. typical boy or girl behavior and interests from a very early Because of the juvenile delinquency system’s conflation of age. If a child strays too far from what is considered gender difference with inappropriate sexual behaviors, socially acceptable for a boy or a girl, some parents become transgender youth often are criminalized and punished upset, embarrassed, and concerned. These parents may try simply for being themselves. As these problems have to prevent their child from expressing characteristics become more visible over the past few years, advocates and outside of traditional gender roles, either through verbal attorneys have begun to provide guidance about how the means (e.g., “Only girls play with dolls”) or through more juvenile justice system needs to change. aggressive means such as beatings or kicking their child out In the first section of this brief policy report, I exam- of the home (DeCrescenzo & Mallon, 2000). In some cases, ine specific societal and personal factors that affect how parents of gender-nonconforming children have even and why transgender youth end up in front of a juvenile sought out therapy to try to cure their child’s gender non- court judge. In the second section, I provide an overview conformity (Gelder & Marks, 1969; Mallon & DeCrescenzo, of the juvenile delinquency system. In the third section, I 2006; Scholinski, 1997). These efforts are not only unsuc- demonstrate how law, policy, and legal representation cessful but also can cause severe psychological harm and regularly fail transgender youth in juvenile delinquency can alienate a child from his or her family (Israel & Tarver, systems throughout the United States by highlighting the 1997; Mallon, 1999). experiences of one transgender girl3 over the course of As a result of family rejection or abuse, a dispropor- 4 years. In the final section, I pose recommendations that tionate number of transgender and gender-nonconforming will assist lawyers, judges, and other court personnel in youth are homeless. The National Network of Runaway protecting the rights of transgender youth and preventing and Youth Services has estimated that between 20% and their placement in facilities that treat them as sexual 40% of homeless youth are lesbian, gay, bisexual, or deviants and put them at risk for emotional and physical transgender (LGBT) individuals (Feinstein et al., 2001; harm. I conclude by stressing that transgender youth Sullivan, Sommer, & Moff, 2001; Woronoff et al., 2006). advocates must address the overarching failures of the Unfortunately, many homeless shelters and other programs juvenile delinquency system in order to respond to the that are geared to assist street-involved youth are segre- reality of the lived experiences of transgender youth, who gated by gender and have little understanding of trans- not only experience bias and mistreatment because of gender youth and their needs (National Gay and Lesbian their gender identity but also are navigating a system that Task Force [NGLTF], 2007). Because these facilities are not is wrought with inequities and rights violations based on welcoming or safe for transgender youth, homeless trans- race, class, and other differences. gender youth often sleep on the streets without access to shelter programming that could provide them with sup- Transgender Youth Are at Risk for Juvenile port, medical care, and food. Court Intervention Transgender youth who are homeless, like all home- Many transgender young people find themselves less youth, are at high risk for arrest. Without income, facing rejection, harassment, and physical abuse at the these youth are forced to engage in criminalized activities hands of their families, communities, and schools because such as theft, petty drug dealing, or sex work, activities of their gender. This abuse is often so intense that they run that increase their likelihood of both assault and arrest (Berberet, 2006). Living on the streets also puts trans- gender youth at high risk for exploitation by adults 3 A transgender girl is someone who was born male but has who may manipulate vulnerable youth to participate in a female gender identity and presentation. Transgender girls use female pronouns and otherwise express their gen- criminalized activities (Klein, 1998). Finally, police der in a feminine manner. often target and arrest transgender homeless youth for March 2008 Vol. 5, No. 1 73 SEXUALITY RESEARCH & SOCIAL POLICY Figure 1. Experiences leading to the overrepresentation of