Our Juvenile Justice System Is Failing LGBTQ Youth

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Commentary LGBTQ

Our Juvenile Justice System Is Failing LGBTQ Youth

Laura E. Durso & Naomi Goldberg

How can we better serve the needs of LGBTQ youth in the system? There is no simple answer to this question.

About 7 to 9 percent of young people in the United States identify as LGBTQ or gender-nonconforming. But recent research finds that percentage doubles among youth in juvenile justice facilities—and that these facilities are neglecting to keep LGBTQ youth safe or meet even their most basic needs, from housing to health care.

More than 54,000 youth in America currently are held in a juvenile justice facility. Most youth in these facilities are boys, and Black youth are greatly overrepresented—trends that bear a striking resemblance to the country’s adult prison population. As many as 40 percent of girls and 14 percent of boys in the juvenile justice system identify as LGBTQ or gender-nonconforming. Eighty-five percent of LGBTQ youth behind bars identify as youth of color.

Why are LGBTQ youth of color so significantly overrepresented in juvenile justice facilities? How can we better serve the needs of LGBTQ youth in the system? How are they being supported in moving forward with life afterward, or are they being supported at all?

There are no simple answers to these questions. And without improved research and data about the experiences of LGBTQ people and youth, especially those of color, we are left to connect the dots. But by drawing on the lived experiences of youth, and the expertise of researchers, providers and advocates, a picture emerges that helps us begin to understand the needs of this population.

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LGBTQ youth in juvenile justice facilities are at increased risk for mistreatment, abuse, sexual assault, and a lack of medical care compared to their non-LGBTQ peers. A 2016 report from the Bureau of Justice Statistics finds that lesbian, gay, or bisexual youth are more than ten times as likely to experience sexual assault by a peer when behind bars, and one in ten report having this experience. LGBTQ young people report that staff overreact to displays of affection between people of the same gender, leading to unfair disciplinary actions. And transgender and gender non-conforming youth are frequently placed in facilities according to the sex on their birth certificate or based on their genitalia instead of their gender identity. This puts them at higher risk for harassment, violence, and sexual assault while in detention. It also makes it harder for them to access gender-specific clothing, personal care products, or even medical care.

As outlined in a report by our two organizations in partnership with several others, factors like race, gender identity, sexual orientation, and poverty also have unique and interactive effects that influence whether and how a young person becomes connected to the juvenile justice system in the first place. Systemic discrimination plays a significant role, such as the heightened police profiling of young people of color and transgender and gender non-conforming youth, or biased school discipline policies that push students into the school-to-prison pipeline.

Furthermore, family and community rejection of young people on the basis of their sexual orientation, gender identity, or gender expression can force LGBTQ youth to fend for themselves and to engage in survival crimes that put them at risk of entering the system. And young people in juvenile justice settings often have a historical connection to other systems as well, including homeless services and child welfare. In fact, a 2008 study of youth in Illinois found that those who had been placed in foster care were two to three times as likely to have been arrested, convicted, and placed in a juvenile or adult correctional facility, compared to those who hadn’t been in foster care. When child welfare, housing, and other systems meant to support young people are underfunded and lack culturally appropriate trainings and programs, they are set up to fail LGBTQ young people, who again may then turn to survival crimes.

With greater attention to the ways in which schools, communities, the child welfare system, and our juvenile justice system fail to protect, empower, and support LGBTQ youth, policymakers, advocates, researchers, and direct service providers can better serve LGBTQ young people. And, ideally, this can inspire a shift toward preventing a young person from becoming connected to the juvenile justice system at all.

Passing laws that prohibit discrimination based on sexual orientation and gender identity in the provision of social services can improve outcomes for LGBTQ youth. Advocating for, and funding, alternatives to incarceration for youth can reduce the number of youth in juvenile facilities, including those who are subjected to harassment and sexual assault. Furthermore, these programs also empower youth and help them to take control over their lives.

One example of improvement within the system itself is the set of policies and trainings implemented by the Massachusetts Department of Youth Services, the state’s juvenile justice agency. The state’s policy allows for the self-determination of a transgender young person entering the system, where youth may specify preferred name and pronouns and for their gender identity, rather than their sex assigned at birth, to influence their housing placements.

There is no simple solution for stemming the flow of youth into our juvenile and criminal justice system and reforming those systems. Rather, policy change and culture shift is needed across all institutions that serve young people.