The Legal Rights of LGBT Youth in State Custody: What Child Welfare and Juvenile Justice Professionals Need to Know
Estrada, Rudy, Marksamer, Jody, Child Welfare
Youth in state custody, regardless of their sexual orientation or gender identity, have federal and state constitutional and statutory rights. These rights guarantee a young person safety in their placement as well as freedom from deprivation of their liberty interest. Many lesbian, gay, bisexual, and transgender (LGBT) youth have these rights violated on a regular basis. Many cases in both the child welfare and juvenile justice contexts have resulted in extensive and time-consuming consent decrees as well as sizable damages awards. Knowledge of a youth's legal rights can help providers avoid legal liability while creating a safer and healthier environment for LGBT youth. This article provides a general overview of the successful federal legal claims that youth in the child welfare and juvenile justice systems have made, discussion of the rights generated as a result, particle application of these rights to the experiences of LGBT youth with hypothetical scenarios, a focus on specific rights that emanate from certain state laws, and a focus on specific concerns of transgender youth.
In 2003, a young transgender woman sued the New York City Administration for Children's Services (ACS) for not allow ing her to wear female attire in her all-boys group home (Doe v. Bell, 754 N.Y.S.2d 846 (N.Y. Sup. Ct. 2003)). While in state care, she was prohibited from expressing her female gender identity in ways that did not conform with her birth sex, despite the fact that she had been previously diagnosed with Gender Identity Disorder, (GID) in which transgender youth experience clinically significant distress or impairment in important areas of functioning in relation to their gender identities (American Psychological Association, 1994). The young woman maintained that not being allowed to wear dresses and skirts caused her great psychological distress and amounted to illegal discrimination on the basis of disability and sex under the New York State housing nondiscrimination law, as well as a violation of her First Amendment freedom of expression (N.Y. Exec. 3296 (18)(2)). Without reaching her sex discrimination or First Amendment claims, the court found that in order to not discriminate against her based on disability, ACS was required to make reasonable accommodations for her transgender status and to permit her to dress and otherwise present herself consistently with her female gender identity.
In 2005, three juveniles, who were either identified or perceived as lesbian, gay, bisexual, or transgender and who had been confined at the Hawaii Youth Correctional Facility (HYCF), sued the facility after experiencing anti-LGBT abuse while in state custody (R.G. v. Keller, 415 F. Supp. 2d 1129). Like so many other lesbian, gay, bisexual, and transgender (LGBT) youth around the country, these youth were constantly verbally, physically, and sexually harassed and threatened while in the facility. Other young people in the facility regularly exposed themselves to them, pressured them for sexual favors, and acted out violently toward them whenever they had the opportunity. As is a common response in these situations, the facility administrator moved them to a single cell but did nothing further to address the abuse. Unsurprisingly, the attacks continued even after they were isolated.
The federal judge who eventually heard their case was particularly concerned that HYCF was aware of the ongoing abuse, yet took no adequate or reasonable steps to protect the youth:
The court's conclusion that the defendants acted with deliberate indifference is based on the totality of the circumstances at HYCF. Specifically, it is based on the court's findings that the defendants were aware that conditions at HYCF were unsafe for the plaintiffs and that, with this knowledge, defendants failed to mention: (1) polices and 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. …