Chapter 2. LGBTQI Youth under Custodial Supervision

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Many corrections professionals are unaware that the youth they work with identify as lesbian, gay, bisexual, transgender, questioning, and intersex (LGBTQI), and many juvenile justice agencies do not have policies nor do they provide training for their staff that pertains to LGBTQI youth. Research shows that LGBTQI youth represent as much as 15 percent of the total population of adjudicated youth.[82] Secure detention facilities can be particularly dangerous and hostile places for LGBTQI youth. Without policies and training, staff are unprepared to provide safe and professional care to this population. Transgender youth and youth with intersex conditions face additional challenges in detention because of housing and medical care.

As other detained youth, transgender and intersex youth are generally placed in sex-segregated facilities according to external genitalia rather than gender identity.[83] When transgender girls or girls with intersex conditions are placed in facilities for boys, they are at very high risk for physical and sexual abuse by other youth and staff. In addition, some facilities do not provide transgender youth with medically necessary, transition-related health care.[84] Appropriate policies and procedures as well as staff training, however, can better equip agencies to make decisions that are balanced regarding both the safety of LGBTQI youth and the agency as a whole.

Appropriate policies and procedures as well as staff training, however, can better equip agencies to make decisions that are balanced regarding both the safety of LGBTQI youth and the agency as a whole.

A school district in Maine made accommodations for a young trans-girl attending public school, which allowed her to use the female restroom. When the school attempted to change its policy, to disallow the trans-girl’s use of the female restroom, the resulting court case found that barring her access to the bathroom simply because the student was transgender was a violation of the state’s human rights law.[85]

LGBTQI youth in the juvenile justice system have established rights under the U.S. Constitution, state and federal statutes and regulations, and through court precedent. Understanding these rights can help juvenile justice agencies and staff develop appropriate policies and procedures for working with LGBTQI youth and provide for their safety and rehabilitation.

Constitutional Law

The U.S. Constitution extends critical rights to all detained youth. Juvenile justice agencies have an enhanced responsibility to ensure that youth in their custody are safe and free from unreasonably restrictive conditions of confinement.[86] Youth in juvenile justice settings are entitled to more protection than incarcerated adults, and courts use the 14th Amendment due process clause to analyze conditions of confinement claims.[87] Under the 14th Amendment, juvenile facilities are required to provide all youth in their custody with reasonable conditions of confinement and freedom from unreasonable bodily restraint, and to protect their right to be free from abuse and to receive adequate health care and fair and nondiscriminatory treatment.[88] Finally, confined youth maintain their right to freedom of expression and freedom of religion under the 1st Amendment. In 2006, an important piece of litigation exposed a pattern and practice of sexual and physical victimization of LGBTQI youth confined in the Hawaii Youth Correctional Facility (HYCF). In R.G. v. Koller, three LGBTQI youth filed a lawsuit in the U.S. District Court for the District of Hawaii, challenging the failure of facility staff to protect them from physical, emotional, and sexual abuse by other youth.[89] Ultimately, the court found that there was a pervasive climate of hostility toward, discrimination against, and harassment of youth based on their actual or perceived sexual orientation, sex, or transgender status. The court also found that acts of religious preaching by staff were content based and presented a discriminatory viewpoint that silenced the youth’s speech regarding their lives as LGBTQI teenagers, their feelings, and their important relationships.[90]

In R.G. v. Koller, the court found that the Hawaii Youth Correctional Facility:

  • Failed to protect the plaintiffs from physical, sexual, and psychological abuse.
  • Used isolation as a means to protect LGBT youth from abuse.
  • Failed to provide the policies and training necessary to protect LGBT youth.
  • Did not have adequate staffing and supervision or a functioning grievance system.

Failed to use a classification system that protects vulnerable youth.[91]

Freedom from Abuse

Correctional administrators have a legal responsibility to ensure that staff members intervene promptly to protect the safety of residents.[92] If staff members are aware that a youth is being subjected to harassment or abuse, they must respond with appropriate actions designed to stop the harassment or abuse, especially if the targeted youth is known to be vulnerable because he or she is young, has a mental illness, is openly LGBTQI, or is perceived to be LGBTQI.[93] For that reason, agencies should have a sound classification system that prevents the placement of vulnerable youth (such as LGBTQI youth) with aggressive youth who may be abusive.[94]

Freedom from Isolation

All youth under supervision have a right to be free from unreasonably restrictive conditions of confinement, including isolation. Numerous courts have concluded that the use of administrative segregation or isolation in juvenile settings—even for short periods of time—is cruel, harmful, and unconstitutional.[95] Facilities and staff may violate this constitutional right if they place LGBTQI youth in isolation, either as punishment for expressing their identity or based on the myth that LGBTQI youth are sexually aggressive or a danger to other youth.[96] Placing all LGBTQI youth in segregation or isolation to protect them from abuse[97] or using isolation to separate LGBTQI youth from their abuser(s)[98] also violates a youth’s constitutional rights.

All youth under supervision have a right to be free from unreasonably restrictive conditions of confinement, including isolation.

As one court has explained it, placing youth in isolation in response to an incident of abuse is akin to “attempting ... to remedy one harm with an indefensible and unconstitutional solution.” Although an LGBTQI youth may be at risk of violence in a juvenile facility, the Constitution requires a more effective and less stigmatizing response than isolation.[99]

Staff should not treat LGBTQI youth as sex offenders, house them with sex offenders, or send them to sex offender treatment programs because of their gender identity or sexual orientation.[100] Facilities may violate youth’s constitutional rights by labeling or treating LGBTQI youth as sex offenders or housing them with sex offenders without adequate due process protections such as a hearing, an evaluation by a qualified mental health professional, and an opportunity to appeal the designation or placement.

The Right to Adequate Medical Care

All detained youth have a right to receive adequate medical and mental health care,[101] including health care that may be unique to that youth.[102] Agencies should provide appropriate medical and mental health care to transgender youth who are diagnosed with gender dysphoria, including access to medical providers with specific experience in evaluating and treating gender dysphoria in adolescents. In the adult context, courts have found that “transsexualism” constitutes a “serious medical need”; therefore, deliberately denying access to transgender-related health care amounts to cruel and unusual punishment.[103] Given the applicable legal standard for youth, agencies must provide appropriate care to address youth’s medical and mental health needs with regard to gender identity.

Health care shall:

  • “respect and protect the civil and legal rights of all individuals.”
  • “refrain from discriminating against any individual because of race, gender, creed, national origin, religious affiliation, age, disability, or any other type of prohibited discrimination.”
  • “respect, promote, and contribute to a workplace that is safe, healthy, and free of harassment in any form.”[104]

Freedom of Speech and Expression

All youth have a constitutional right to freedom of speech and freedom of expression, which includes the right to be open about one’s sexual orientation[105] and the right to express one’s gender through clothing and grooming practices.[106] Because youth in custodial settings are still meeting adolescent development markers, it may be harmful to youth’s development to require them to hide their sexual orientation or gender identity. Policies that do not allow youth—especially gender-nonconforming youth—to express their gender through clothing and accessories can be counterproductive to normal adolescent development.[107] In particular, self-expression through clothes and grooming is a normal part of adolescent development, and juvenile justice agencies should consider this when developing policies that are rigid regarding clothing and grooming practices. Safety of all youth is paramount, but safety is not necessarily inconsistent with allowing youth to express themselves through clothing and grooming, when appropriate.

The Right to Religious Freedom

The 1st Amendment guarantees youth in juvenile facilities the right to religious freedom and the right to be free from religious indoctrination.[108] Juvenile justice agencies that require LGBTQI youth to hide their identities or participate in religious activities that they object to, that condemn homosexuality and gender differences, or that try to convert LGBTQI youth may violate youth’s 1st Amendment rights. Additionally, staff members who intimidate or coerce LGBTQI youth into adopting a particular religious practice or belief also violate the 1st Amendment.[109]

Reparative Therapies

Churches and other religious groups have routinely engaged in the practice of conversion therapy in an attempt to change an individual’s sexual attraction from homosexual to heterosexual.[110] In 2012, one of the largest and most prominent of these conversion groups, Exodus International, announced that it would no longer practice or promote conversion therapy.[111] To explain the group’s disassociation from conversion therapy, Alan Chambers (president of Exodus International) stated that “‘99.9 percent’ of the people he had met through Exodus International either had not changed their sexual attraction or still struggled with temptation.”[112]

To further acknowledge the ineffectiveness of conversion therapy, California became the first state to ban sexual orientation change efforts for minors. The California law states that “[u]nder no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.”[113] The law further states that any effort to change sexual orientation “by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.”[114] Mental health professionals challenged this law on constitutional grounds in two separate cases in the U.S. District Court for the Eastern District of California; the presiding judges reached opposite conclusions.[115] The Ninth Circuit resolved this issue in 2014, determining that such statutes should be subject to the rational basis level of scrutiny.[116]

National Prison Rape Elimination Act Standards

PREA requires juvenile justice agencies to screen youth for risk of sexual victimization and abusiveness. At a minimum, the intake screening must ascertain any gender-nonconforming appearance and consider whether the resident is or is perceived to be LGBTQI,[117] the youth’s perception of his or her own vulnerability,[118] and any additional information that “may indicate heightened needs for supervision, additional safety precautions, or separation from certain other residents.”[119] The facility shall not place LGBTQI youth “in particular housing, bed, or other assignments solely on the basis of such identification or status” nor consider LGBTQI status “as an indicator of likelihood of being sexually abusive.”[120]

In deciding whether to assign a transgender or intersex youth to a particular facility for male or female residents, and in making other housing and programming assignments, the agency should consider—on a case-by-case basis—whether a placement would ensure the youth’s health and safety and whether the placement would present management or security problems. The transgender or intersex youth’s “own view with respect to his or her own safety shall be given serious consideration.”[121] Lastly, transgender and intersex youth must be able to use the toilet and shower separately from other residents.[122] Agencies must reassess these placement and programming assignments for transgender and intersex youth at least twice per year.[123] If a youth is isolated due to the risk of sexual victimization or abusiveness, the facility must document the basis for its concern for the youth’s safety and provide the reasons why “no alternative means of separation can be arranged.”[124] Every 30 days, the facility must review each isolated youth’s situation to determine whether the need for continued separation from the general population persists.[125]

A juvenile agency is not permitted to “search or physically examine a transgender or intersex resident for the sole purpose of determining the resident’s genital status.” A resident’s genital status can only be ascertained “during conversations with the resident, by reviewing medical records, or, if necessary, by learning that information as part of a broader medical examination conducted in private by a medical practitioner.”[126] Furthermore, the agency must train staff to conduct cross-gender searches and searches of transgender and intersex residents in a “professional and respectful manner, and in the least intrusive manner possible, consistent with security needs.”[127]

Finally, the PREA Standards provide guidance for agencies on staff training, investigations, and data collection with regard to LGBTQI residents. Each agency must train employees who may have contact with youth to communicate effectively and professionally with those who identify as LGBTQI.[128] Agencies are permitted to prohibit all sexual activity but may not “deem such activity to constitute sexual abuse if it determines that the activity is not coerced.”[129] When conducting incident reviews of abusive sexual acts, the agency must “[c]onsider whether the incident or allegation was motivated by ... gender identity; lesbian, gay, bisexual, transgender, or intersex identification, status, or perceived status ... or was motivated or otherwise caused by other group dynamics at the facility.”[130]

Other Governing Principles: State Human Rights Law and Professional Codes of Ethics

In addition to the protections provided by the U.S. Constitution, some states also have statutes or regulations that prohibit discrimination based on sexual orientation and gender identity or expression in juvenile justice facilities. State laws that provide protection for LGBTQI youth in custody include (1) nondiscrimination laws specific to juvenile facilities or state-funded programs, (2) nondiscrimination laws for people in institutional settings, (3) public accommodation laws, and (4) housing laws.[131]

Codes of ethics of the American Correctional Association (ACA) and the National Partnership for Juvenile Services (NPJS) outline the responsibilities that juvenile justice professionals owe to all youth in their care, including LGBTQI youth.[132] The NPJS Code of Ethics requires juvenile detention workers to: “(1) advocate for policies that ensure the legal and human rights of justice-involved youth; (2) educate justice-involved youth, professionals and others about policies and practices that either promote or violate these rights; (3) refuse to remain silent when these rights are violated, and they speak on behalf of the affected youths; and (4) support the rights of justice-involved youth to be served in a psychologically and physically safe and secure environment.”[133]

Elements of Legally Sound and Effective Policy and Practice

All LGBTQI policies should be based on the following guiding principles:[134]

  • Respectful interactions among youth and between staff and youth.
  • Do no harm.
  • Safety of youth who are vulnerable.
  • Targeted to your legal obligations and what staff are required to do by law.

In addition, all LGBTQI policies should include the following elements:

  • Statement of purpose.
  • Enumeration of included groups.
  • Prohibitions.
  • Requirements.
  • Scope of applicability.
  • Definitions.
  • Responsibilities.
  • Enforcement and sanctions (for both staff and youth).
  • Training and dissemination methods.

The following areas should be addressed when developing, revising, or implementing facility policies to ensure the safety of LGBTQI youth in custodial settings:

  • Nondiscrimination.
  • Intake.
  • Risk assessment.
  • Classification.
  • Communication.
  • Medical care.
  • Mental health care.
  • Privacy.
  • Safety.

These areas are discussed in greater detail below. Each section includes a discussion of the purpose for adopting a specific policy and a list of questions to consider when drafting or revising policies and procedures. Policies should fill the gap between what is required under the law and what should be done as good correctional practice. Appendix D includes examples of agency policies that address some of these issues.

Nondiscrimination Policies

Juvenile justice agencies should develop, adopt, and enforce policies that include zero tolerance for discrimination and mistreatment of youth and staff that results from actual or perceived sexual orientation and gender identity or expression. These policies should specifically prohibit harassment and abuse of youth and staff by staff or other youth.

Following are questions to ask about an agency’s nondiscrimination policy:

Nondiscrimination Policy Checklist

YES

NO

Does the agency have a nondiscrimination policy for youth, employees, or volunteers?

 

 

Does the agency policy require that all individuals who enter the agency are treated with fairness, dignity, and respect regardless of real or perceived sexual orientation?

 

 

Does the agency policy explicitly list sexual orientation and gender identity or expression as prohibited bases for discrimination?

 

 

Does the agency policy prohibit attempts by staff to ridicule or change a youth’s sexual orientation or gender identity?

 

 

Does the agency policy define staff duty to provide safe and healthy environments in which all individuals are treated with respect and dignity?

 

 

Does the agency policy define staff responsibility for protecting the civil rights of LGBTQI youth while in custody, and for ensuring their physical and emotional well-being and safety in juvenile facilities?

 

 

Does the agency policy define the elements of incident reporting to include complaints of harassment, discrimination, and abuse?

 

 

Does the agency policy provide training and resources regarding the societal, familial, and developmental challenges confronting LGBTQI youth?

 

 

Does the agency policy address the collection and analysis of data regarding the needs of LGBTQI youth in its custody?

 

 

 

If the answer to most of these questions is “yes,” it is likely that the agency is close to being in line with federal and state laws and regulations as well as constitutional provisions for LGBTQI youth. If the answer to even some of these questions is “no,” it may indicate that the agency has some work to do in this area, and a policy revision based on the legal rights outlined above and in the PREA Standards is in order.

Download Checklist Download LGBTQI Youth under Custodial Supervision Checklists

Intake, Risk Assessment, and Classification

Intake and Risk Assessment

Identifying safety concerns for LGBTQI youth is a priority in determining risk. Agencies should develop and implement intake processes to identify LGBTQI youth and those perceived to be LGBTQI who are vulnerable to physical and sexual assault.

Following are questions to ask about an agency’s intake and risk assessment policy and practice:

Intake and Risk Assessment Policy Checklist

YES

NO

During intake and initial classification, does the agency ascertain information about the youth’s sexual orientation and/or gender identity?

 

 

During the youth’s confinement, does the agency periodically update information regarding the youth’s sexual orientation and gender identity?

 

 

Do the agency employees who conduct initial screening and classification receive training regarding sensitivity in conducting interviews with LGBTQI youth?

 

 

Does the agency policy require that a youth’s sexual orientation and/or gender identity be verified by multiple sources prior to classification?

 

 

Are medical health practitioners the only staff permitted to physically examine youth to gather information about gender identity?[135]

 

 

Does the agency policy have a process to document and accommodate the concerns of LGBTQI youth in terms of safety, name, pronoun, toileting, showering, and searches?

 

 

Do the agency medical and mental health staff use screening tools that are developed specifically for LGBTQI youth?

 

 

Does the agency provide all youth an orientation that discusses diversity and describes the harms that result from name-calling, bullying, and harassment?

 

 

 

If the answer to even some of these questions is “no,” the agency will need to rewrite its policy to be more in line with the PREA Standards that address risk assessment and screening. Risk assessment and screening are crucial to the safety of LGBTQI youth, especially when those are the tools and policies in place to inform housing options for youth in custody. All screening tools should include vulnerability assessments, the types of housing decisions that can be made by staff, and a stipulation as to when an assessment requires moving a decision up the chain of command. Housing and classification are key to ensuring the safety of youth. 

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Classification

Juvenile facilities must have sound classification systems that separate vulnerable youth from aggressive youth. In classifying youth, facilities must not infringe on the youth’s right to be free from unreasonably restrictive conditions (such as isolation) and practices that amount to punishment without due process (such as automatic placement based on gender identity). Facilities should use all information obtained during intake to make all housing, bed, program, education, and work assignments for youth, with the goal of keeping all youth physically and emotionally safe.

Following are questions to ask about an agency’s classification policy:

Classification Policy Checklist

YES

NO

Is the agency classification policy based on individualized needs that balance the youth’s physical and emotional well-being with the safety of all other youth?

 

 

Is the agency classification process objective and free of individual biases?

 

 

Is the agency classification process defined in written policies and procedures?

 

 

Does the agency prohibit blanket policies regarding the classification of LGBTQI youth or those perceived to be LGBTQI?

 

 

Does the agency classification policy govern the placement of youth into sex offender programs or units based on articulated criteria, including orders of the court?

 

 

Do the agency classification and housing policy and procedures consider physical layout and privacy issues when determining the location for LGBTQI youth?

 

 

Does the agency place vulnerable youth in the least restrictive environment necessary to ensure safety and provide the youth with equal access to facility services?

 

 

Do the agency classification protocols address how youth in various classifications are housed if the facility is crowded?

 

 

Do the agency classification and housing protocols consider privacy concerns when assigning housing for LGBTQI youth?

 

 

Does the agency develop responses to abuse or harassment (or threat of abuse or harassment) of LGBTQI youth that do not rely on the isolation or segregation of these youth?

 

 

As discussed above, confined youth have the right to be free from unreasonably restrictive conditions[136] and conditions or practices that amount to punishment.[137] Accordingly, instead of isolating LGBTQI youth, facility staff should implement more effective and fair safeguards such as “ensuring appropriate staff-to-resident ratios; modeling respectful behavior; providing close supervision of residents; promptly intervening to interrupt any disrespect, harassment, or abuse directed at other youth; and keeping youth meaningfully engaged in constructive programming.”[138] It is also essential (for safety and security as well as mental health care) that LGBTQI youth are not automatically treated as sex offenders, housed with sex offenders, or sent to sex offender treatment programs simply because of their gender identity or sexual orientation.[139]

Agencies should make housing determinations based on a number of factors, not based on LGBTQI status alone.[140] Additionally, agencies should not use youth’s self-identification as LGBTQI “as an indicator of likelihood of being sexually abused or abusive.”[141]

Download Checklist Download LGBTQI Youth under Custodial Supervision Checklists

Housing Specifications for Transgender and Intersex Youth

Determining gender-appropriate placements for transgender and intersex youth can be difficult. A handful of juvenile justice agencies have clearly written policies concerning housing placements for these youth.[142] Agencies should make determinations for housing these youth on a case-by-case basis. Additionally, PREA Standards advise agencies to make provisions for transgender and intersex youth to use the toilet and shower separately.[143]

Following are questions to ask about an agency’s classification policy for transgender and intersex youth:

Classification for Transgender and Intersex Youth Policy Checklist

YES

NO

Do the agency classification and housing policies include evaluation of a person’s current genital status in making placement decisions?

 

 

Does the agency make individualized housing determinations based on other factors in addition to a person’s current genital status?

 

 

Do the agency classification and housing policies include factors that relate to the youth’s emotional and physical well-being and that prioritize the youth’s evaluation of his or her safety?

 

 

Do the agency classification and housing policies include a review of youth’s privacy concerns, available housing options, and recommendations from the youth’s mental health providers regarding appropriate housing or classification?

 

 

Does or can the agency provide access to private toilet and shower facilities, when necessary, or a single room for sleeping, while allowing youth to have full access to the facility’s daily programming?

 

 

Does or can the agency house transgender youth according to gender identity rather than birth sex?

 

 

When it is necessary, can the agency place transgender youth safely according to birth sex and protect their physical and emotional well-being?

 

 

Can the agency safely house transgender youth in a mixed-gender unit or program?

 

 

Does the agency determine reclassification needs based on requests by youth or based on victimization?

 

 

 

Individualized decision-making is key in making appropriate and ultimately safe housing decisions for LGBTQI youth. Currently, some agencies have policies that specifically call for individualized placement decisions for transgender and intersex individuals.

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Respectful Communication

All policies for the safety and care of LGBTQI youth include components of respectful communication with and among all youth. Staff and volunteers should always be examples to youth, and should use respectful language and terminology that do not promote stereotypes about LGBTQI people or convey bias or hatred toward them. Additional elements of communication and harassment policies are inclusive language and attention to names and pronouns. If professionals are unsure of a youth’s gender identity, they should simply ask the youth about it and about the pronoun and name the youth uses.

Following are questions to ask about an agency’s respectful communication policy for youth:

Respectful Communication with Youth Policy Checklist

YES

NO

Does the agency have a zero-tolerance policy for sexual harassment, including harassment by staff and youth-on-youth harassment?

 

 

Does the agency policy include direction to staff on how to address LGBTQI youth using respectful and appropriate language?

 

 

If the agency policy permits youth to wear clothing other than issued clothing, does the agency policy permit youth to express themselves through clothing or grooming (within the bounds of safety for all youth)?

 

 

Does the agency policy address confidentiality of information, including staff disclosure relating to the privacy and confidentiality of LGBTQI youth?

 

 

Does the agency policy adhere to all confidentiality and privacy protections afforded LGBTQI youth under applicable state law?

 

 

Does the agency policy allow for sharing the information necessary to achieve a particular purpose, such as identifying an appropriate placement in another facility?

 

 

Does the agency policy provide for eligible LGBTQI youth to access programming and services within facilities?

 

 

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Juvenile agencies can allow youth to express their gender identity by giving them choices about clothing (including undergarments), hairstyle, and personal grooming. Agencies should give males and females the ability to choose from available clothing and grooming items (e.g., boxers or briefs, shaving supplies, and hair products). Allowing transgender youth to express their gender identity through choice of clothing (if such a choice is available), name, hairstyle, and other means of expression can contribute to positive mental health.

Confidentiality is a key component of honest communication with LGBTQI youth. Some youth will freely reveal private information to anyone who asks; others might not feel as comfortable discussing their identity, or they might want to keep it from friends or parents. Staff should respect this and hold in confidence a youth’s sexual orientation or gender identity unless youth have given them permission to discuss it. This principle applies even in situations where staff feel that revealing information about a youth’s sexual orientation or gender identity is in the youth’s best interests. Doing so could immediately compromise a youth’s safety in the facility and later compromise his or her safety at home or at school. Within the agency, any disclosure of information related to a youth’s LGBTQI status should be limited to information necessary to achieve a specific beneficial purpose for that youth; in these circumstances, the information should only be disclosed to individuals who have a need to know.

Medical and Mental Health Care

At a minimum, policies on medical and mental health should provide all youth with access to quality medical care. LGBTQI youth should have opportunities to receive counseling as well as medical health care that meets their unique needs. Agencies should not attempt to change a youth’s sexual orientation or gender identity, punish youth for expressing their sexual orientation or gender identity, or require youth to undergo sex offender counseling based solely on the youth’s sexual orientation or gender identity.

Following are questions to ask about an agency’s medical and mental health care policy for LGBTQI youth:

Medical and Mental Health Care Policy Checklist

YES

NO

Do the agency medical and mental health protocols include opportunities for LGBTQI youth to access services that address self-acceptance and validation, concerns about disclosure of sexual orientation or gender identity, family relationships, healthy intimate relationships, and sexual decision-making?

 

 

Does the agency policy promote the hiring of medical and mental health professionals who have expertise and/or experience in working with LGBTQI youth?

 

 

In assessing a youth’s medical and/or mental health status, does the agency policy direct medical staff to include an assessment of the youth’s safety?

 

 

Do the agency medical and mental health protocols direct those conducting medical screening to inquire about the youth’s sexual activity, sexual orientation, and gender identity, both before and during confinement?

 

 

Do the agency medical protocols provide for gynecological and obstetrical care?

 

 

Do the agency medical protocols provide for HIV and STD testing, care, and confidentiality?

 

 

Do the agency medical and mental health protocols provide for counseling for sexual trauma that occurred either before or during confinement?

 

 

Do the agency medical and mental health protocols provide for mental health evaluations that include assessment of an array of mental health diagnoses, including gender dysphoria?

 

 

Do the agency medical protocols address medical care for transgender youth, including evaluation of their care prior to incarceration?

 

 

 

At a minimum, agencies should ensure that youth have access to medical providers who are knowledgeable about the particular health needs of LGBTQI youth—especially transgender youth and youth with intersex conditions. If a transgender youth or a youth with intersex conditions requests an evaluation or treatment, facility staff should provide the youth with access to appropriate professionals and should provide all medically necessary treatment recommended. If the facility cannot provide treatment on site, then the youth should be transported to the provider. If a transgender youth or a youth with an intersex condition has been receiving medical or mental health services (such as hormone treatments) prior to arriving at the facility, the facility should consult with the youth’s medical providers and continue to provide medically necessary treatment.

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Privacy and Safety

Facilities should provide access to private bathrooms and showers (when necessary) or a single room for sleeping. Privacy accommodations should not prevent LGBTQI youth from full integration into the facility's daily programming. In general, policies that are integral to addressing the safety and privacy issues and concerns of LGBTQI youth include:

  • Cross-gender supervision.
  • Use of facilities—bathrooms, showers, etc.
  • Search procedures.
  • Undressing.

Following are questions to ask about an agency’s privacy and safety policy for youth:

Privacy and Safety Policy Checklist

YES

NO

Does the agency practice cross-gender supervision of youth? Explain your answer.

 

 

Does the agency policy address levels of staffing and supervision?

 

 

Does the agency policy address the safety and privacy needs of LGBTQI youth in regard to toileting, showering, and sleeping?

 

 

If a strip search is necessary, do transgender or intersex youth have the option of choosing the gender of the staff person that will conduct the search?

 

 

Does the agency policy address search procedures and privacy needs of LGBTQI youth?

 

 

Does the agency policy require that youth grievances be tracked, and does the agency collect and analyze information on grievances related to searches?

 

 

 

To develop sound policy in these areas, facility administrators should focus on ways the facility can protect the privacy, dignity, and safety of LGBTQI youth. Policies should avoid subjecting transgender youth to unnecessary risks of physical and emotional harm. Facilities should act on a case-by-case basis and encourage staff members to work with transgender youth to determine the best solution for accessing the bathroom, showering, changing clothing, searches, and drug testing that protects their privacy, dignity, and safety.

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Sexual Abuse of LGBTQI Youth

Not all sexual behaviors between youth in facilities can be categorized as sexual abuse. Many times, youth voluntarily engage in sexual activities. Exploring sexuality and sexual identity is a key component of adolescent development. Therefore, agencies should have policies that require staff to determine whether an incident of sexual behavior between youth is sexual abuse or non-coercive voluntary sexual activity. Although voluntary sexual activity between youth may violate agency policies, it may not violate state criminal laws and is not prohibited by the PREA Standards. However, it is important to recognize there is a continuum regarding youth’s engagement in sexual behavior while in custody. Sexual behavior between youth can be non-abusive or abusive; however, it can also be strategic (e.g., sex for trade) or coerced (e.g., sex for protection). On any given day, encounters can move along the continuum—consensual one day and coercive the next. Therefore, agencies must recognize these elements of sexual behavior in custody and have policies that pay special attention to the fact that LGBTQI youth have increased vulnerability to abuse.

Following are questions to ask about an agency’s sexual abuse policy for youth:

Sexual Abuse Policy Checklist

YES

NO

Does the agency policy prohibit the sexual abuse of youth in custody?

 

 

Does the agency policy stipulate that staff must receive training regarding the sexuality and sexual behaviors of youth?

 

 

Does the agency policy require the investigation of all reports of violations of policy regarding sexual abuse?

 

 

Does the agency have multiple methods for youth to report sexual abuse, including avenues for third-party, independent reporting?

 

 

Does the agency policy address the treatment and management of youth who report allegations of sexual abuse?

 

 

Does the agency policy define acceptable sexual behavior for youth and sanctions for violations?

 

 

Does the agency policy define the roles and responsibilities of the investigative process into allegations of sexual abuse?

 

 

Does the agency policy (or the investigative entity’s policy) require referral of allegations of potential criminal activity for review by the prosecutor?

 

 

Does the agency policy require a review of reports and investigations of sexual abuse?

 

 

Does the agency policy establish a sexual assault response team (SART)?

 

 

Do the agency protocols provide for ongoing medical and mental health care for youth who have been sexually victimized while in custody?

 

 

Does the agency policy recognize particularly vulnerable populations, such as LGBTQI youth, and identify their need for treatment?

 

 

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Endnotes


[82] Angela Irvine, “ ‘We've Had Three of Them’: Addressing the Invisibility of Lesbian, Gay, Bisexual and Gender Non-Conforming Youths in the Juvenile Justice System,” Columbia Journal of Gender and Law 19, (2010): 675.

[83] See, Jody Marksamer, “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 Delinquency Courts,” Sexuality Research & Social Policy 5, no. 1 (2008): 72, 82 http://www.equityproject.org/pdfs/and_by_the_way_article.pdf.; Majd, Marksamer, and Reyes, Hidden Injustice, 108–10.

[84] See, Marksamer, “And by the Way,” 81.; Majd, Marksamer, and Reyes, Hidden Injustice, 111–12; Complaint at 2–3, 6, Rodriguez v. Johnson, No.06CV00214 (S.D.N.Y. filed Jan. 11, 2006) (on file with author).

[85] Doe v. Regional School Unit 26, 2014 WL 325906 (M.E. 2014).

[86] See, Kent v. United States, 383 U.S. 541, 554 (1966) (“The theory of the District's Juvenile Court Act, like that of other jurisdictions, is rooted in social welfare philosophy rather than in the corpus juris. Its proceedings are designated as civil rather than criminal.”).; See also, Ingraham v. Wright, 430 U.S. 651, 671–72 n.40 (1977) (“Eighth Amendment scrutiny is appropriate only after the state has complied with the constitutional guarantees traditionally associated with criminal prosecutions.”) (internal citations omitted).

[87] The First, Third, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuit Courts have held that the appropriate standard to use in reviewing the conditions at juvenile facilities comes from the Due Process Clause of the 14th Amendment, not from the 8th Amendment. See, A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572 (3rd Cir. 2004) (finding appropriate standard for juvenile abused in detention was 14th Amendment due process, rather than8th Amendment).; Alexander S., 876 F. Supp. 773, 782 (D.S.C. 1995), aff’d in part and rev’d in part on other grounds, 113 F.3d 1373 (4th Cir. 1997), cert. denied, 118 S.Ct. 880 (1998) (adopting the 14th Amendment as the appropriate standard for evaluating juvenile conditions of confinement).; A.J. v. Kierst, 56 F.3d 849, 854 (8th Cir. 1995) (agreeing that Due Process Clause of 14th Amendment governs evaluation of conditions for confined juveniles).; Gary H. v. Hegstrom, 831 F.2d 1430, 1431–32 (9th Cir. 1987) (resolving split in authorities by selecting 14th Amendment standard instead of 8th Amendment standard).; H.C. ex rel. Hewett v. Jarrard, 786 F.2d 1080, 1084–85 (11th Cir. 1986) (noting conditions of confinement for juveniles affect liberty interests protected by the 14th Amendment).; Santana v. Collazo, 714 F.2d 1172, 1179 (1st Cir. 1983) (stating juveniles not convicted of crimes maintain due process interest in their liberty).; Milonas v. Williams, 691 F.2d 931, 942, n. 10 (10th Cir. 1982) (noting confined juveniles maintain due process liberty interests). But see, Nelson v. Heyne, 491 F.2d 352, 355 (7th Cir. 1974) (applying the cruel and unusual punishment test of the 8th Amendment). The United States Supreme Court has not yet decided the issue.

[88] See, A.M., 372 F.3d at 579 (acknowledging detained youth had liberty interest in personal security and well-being under the 14th Amendment).; Alexander S., 876 F. Supp. at 782 (“[J]uveniles possess a clearly recognized liberty interest in being free from unreasonable threats to their physical safety.”).; Milonas, 691 F.2d at 942, n. 10 (“[B]ecause the state has no legitimate interest in punishment, the conditions of juvenile confinement…are subject to more exacting scrutiny than conditions imposed on convicted criminals.”).

[89] See generally, R.G. v. Koller,415 F. Supp. 2d 1129, 1133 (D. Haw. 2006).

[90] R.G. v. Koller.

[91] R.G. v. Koller, 415 F. Supp. 2d 1129 (D. Hawaii 2006).

[92] R.G. v. Koller at 1162; A.M., 372 F.3d at 581, 583.

[93] See, Koller, 415 F. Supp. 2d at 1158 (finding placing vulnerable LGBTI youth in unit with aggressive boys amounts to deliberate indifference).; A.M.,372 F.3d at 579. (finding sufficient evidence individuals were deliberately indifferent to the substantial risk of harm to 13 year old boy with mental illness who was placed in general population).

[94] See, Alexander S., 876 F. Supp. at 797–98 (facilities must have a system for screening and separating aggressive juveniles from vulnerable juveniles).; Koller, 415 F. Supp. 2d at 1158 (same).

[95] See, H.C. by Hewett v. Jarrard,786 F.2d 1080, 1088 (11th Cir. 1986) (juvenile isolated for seven days was entitled to damages for violation of 14th Amendment).; Santana v. Collazo, 714 F.2d 1172 (1st Cir. 1983).; Milonas, 691 F.2d at 942–43 (use of isolation rooms for periods less than 24 hours violated the 14th Amendment).; D.B. v. Tewksbury,545 F. Supp. 896, 905 (D.Or.1982).; Feliciano v. Barcelo,497 F. Supp. 14, 35 (D.P.R. 1979).; Morales v. Turman, 364 F. Supp. 166 (E.D. Tex. 1973) (solitary confinement of young adults held unconstitutional).; Offenders of Boys' Training Sch. v. Affleck, 346 F. Supp. 1354 (D.R.I. 1972).; Lollis v. N.Y. State Dep't of Soc. Servs.,322 F. Supp. 473, 480 (S.D.N.Y. 1970).

[96] Youth in juvenile detention or correctional facilities should not be placed in conditions that amount to punishment or be stigmatized or humiliated 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, 691 F.2d at 942 (“Any institutional rules that amount to punishment of those involuntarily confined …are violative of the due process clause per se.”).

[97] Koller, 415 F. Supp. 2d at 1156.

[98] Koller.

[99] Koller. at 1162; A.M., 372 F.3d at 581, 583.

[100] For adults, courts have found that the classification of a prisoner as a “sex offender” has such stigmatizing consequences that unless the prisoner has a sexual offense history, additional constitutional protections 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.”). Confined juveniles receive greater constitutional protections than adult inmates. Therefore, branding a juvenile with a sex offender label clearly would have the same, if not an even greater, stigmatizing effect.

[101] See, Youngberg v. Romeo, 457 U.S. 307 (1982).; Burton v. Richmond, 276 F.3d 973 (8th Cir. 2002).; A.M., 372 F.3d at 585 n.3; Jackson v. Johnson, 118 F. Supp. 2d 278 at 289.; Alexander S., 876 F. Supp. at 788.

[102] See, A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 584–85 (3rd Cir. 2004) (discussing lack of medical and mental health care forward with mental illness).; Jackson v. Johnson, 118 F.Supp.2d at 289; Alexander S., 876 F. Supp. 773, 788 (D.S.C. 1995), aff’d in part and rev’d in part on other grounds, 113 F.3d 1373 (4th Cir. 1997).

[103] Juvenile justice professionals must provide some form of appropriate treatment for transgender youth diagnosed with gender dysphoria. Even under the more restrictive minimally adequate medical care standard applicable to adults, courts have held that “transsexualism” constitutes a “serious medical need” therefore, deliberately denying access to transgender-related health care for people amounts to cruel and unusual punishment under the 8th Amendment of the U.S. Constitution.; See, Allard v. Gomez, 9 Fed. Appx. 793 (9th Cir. 2001).; Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (holding that “[t]here is no reason to treat transsexualism differently from any other psychiatric disorder”).; Wolfe v. Horne, 130 F. Supp. 2d 648 (E.D. Pa. 2001).; Phillips v. Michigan Dep’t. of Corr., 731 F. Supp. 792 (W.D. Mich. 1990).

[105] See, Henkle v. Gregory, 150 F. Supp. 2d 1067, 1078 (D. Nev. 2001) (permitting claims under Title IX for discrimination and harassment by other students and under 1st Amendment based on demands by school officials that student keep his sexual orientation to himself to proceed through summary judgment).

[106]See, Doe v. Yunits, No. 001060A, 2000 WL 33162199 (Mass. Super. Oct. 11,2000), aff'd sub nom. Doe v. Brockton Sch. Comm., No. 2000-J-638, 2000 WL 33342399 (Mass. App. Ct. Nov. 30, 2000) (transgender student had 1st Amendment right to wear clothing consistent with her gender identity and that treating transgender girl differently than biological girls was discrimination on the basis of sex).

[107] While 1st Amendment case law in the juvenile justice context is limited, in the public school context, courts have held school officials liable for forcing LGBTI youth to conceal their sexual orientation as a condition of enrollment, for not permitting a transgender student to dress in accordance with her gender identity, and for prohibiting students from bringing a same-sex date to the high school prom.These cases illustrate the types of violations that may be actionable for youth in the juvenile justice context. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999).; Ray v. Antioch Unified Sch. Dist., 107 F. Supp. 2d 1165 (N.D. Cal. 2000).; Yunits, 2000 WL 33162199 at *3.; Fricke v. Lynch, 491 F. Supp. 387 (D.R.I. 1980).

[108] See, Canell v. Lightner, 143 F.3d 1210, 1214 (9th Cir. 1998) (finding a violation of the Establishment Clause if a plaintiff could make a factual showing that a facility condoned or ignored religious proselytizing by prison staff.).

[109] See, R.G. v. Koller,415 F. Supp.2d 1129, 1160–61 (D. Haw. 2006) (“[T]he court is concerned by the evidence that members of the HYCF staff have promoted certain religious teachings to the plaintiffs.”).

[110] Hagerty, “Evangelicals Fight Over Therapy.”

[111] Hagerty, “Evangelicals Fight Over Therapy.”

[112] Hagerty, “Evangelicals Fight Over Therapy.”

[113] West's Annotated California Business and Professional Code § 865.1.

[114] West's Annotated California Business and Professional Code § 865.2.

[115] Compare Welch v. Brown, No. CIV 2:12–2484 WBS KJN (E.D. Cal., Dec. 3, 2012) (finding that the statute was subject to strict scrutiny and issuing preliminary injunction barring its enforcement against the plaintiffs), with Pickup v. Brown, No. 2:12-CV-02497-KJM-EFB (E.D. Cal., Dec. 4, 2012) (holding found that the statute was subject to rationality review, and denying a preliminary injunction).

[116] See, Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014).

[117] 28 C.F.R § (115.341)(c)(2).

[118] 28 C.F.R § (115.341)(c)(10).

[119] 28 C.F.R § (115.341)(c)(11).

[120] 28 C.F.R § (115.342)(c).

[121] 28 C.F.R § (115.342)(f).

[122] 28 C.F.R § (115.342)(g).

[123] 28 C.F.R § (115.342)(e).

[124] 28 C.F.R § (115.342)(h)(1–2).

[125] 28 C.F.R § (115.342)(i).

[126] 28 C.F.R § (115.315)(f).

[127] 28 C.F.R § (115.315)(e).

[128] 28 C.F.R § (115.341)(a)(9).

[129] 28 C.F.R § (115.378)(g).

[130] 28 C.F.R § (115.386)(d)(2).

[131] SB 518 Jan 2008 [prohibits harassment and discrimination based on actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, and HIV status in all California Department of Juvenile Justice (DJJ) facilities].; R.I. Gen. Laws § 28-5.1-7 (a) [Every state agency shall render service to the citizens of this state without discrimination based on race, color, religion, sex, sexual orientation, gender identity or expression, age, national origin, or disability. No state facility shall be used in furtherance of any discriminatory practice nor shall any state agency become a party to any agreement, arrangement, or plan which has the effect of sanctioning those patterns or practices].; Minn. Stat. § 363A.02 (4) [prohibits discrimination in public services based on race, color, creed, religion, national origin, sex, marital status, disability, sexual orientation, and status with regard to public assistance.].; Iowa Code Ann. § 19B.12 (2) [prohibiting “state employees from discriminating against a person in the care or custody of the employee or a state institution based on sex.”].; See, Chisolm v. McManimom, 275 F.3d 315, 325 (adult jail, like a hospital, is place of public accommodation under New Jersey’s Law Against Discrimination).; Ortland v. County of Tehama, 939 F. Supp. 1465, 1470 (California Unruh Act is applicable in claims against governmental agencies).; Doe v. Bell, 754 N.Y.S.2d 846, 850 (N.Y. Sup. Ct. 2003) (recognizing residential foster care facility as “publicly-assisted housing accommodation” for purposes of disability discrimination claim under New York’s Human Rights Law).

[132] National Partnership for Juvenile Services, “Code of Ethics,” (July 10, 2012), http://npjs.org/wp-content/uploads/2013/01/NPJS-Code-of-Ethics.pdf.;‎ ACA, “Code of Ethics.”

[133] NPJS, “Code of Ethics.”; See also, A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 583 (3rd Cir. 2004) (finding that failure to follow up on grievance reports contributes to a finding of liability based on deliberate indifference).; R.G. v. Koller, 415 F. Supp. 2d 1129, 1158 (D. Haw. 2006) (same).

[134] National Institute of Corrections, Subject Matter Expert Group Meeting Minutes, January 27–28, 2011, Washington, DC: 11–13.

[135] Although PREA permits medical examiners to physically examine youth to ascertain information about their gender identity, pediatric physicians question whether subjecting a youth to such an examination is medically safe practice. See, Brenda V. Smith and Robert Bidwell, PREA Standards and Policy Development Guidelines for Lesbian, Gay, Bisexual and Transgender Youth in Custody, presentation, November 13, 2012, The Project on Addressing Prison Rape, http://www.prearesourcecenter.org/training-and-technical-assistance/webinars/1094/prea-standards-and-policy-development-guidelines-for.

[136] Alexander S.,876 F. Supp. at 798; R.G., 415 F. Supp. 2d at 1152.

[137] Bell v. Wolfish, 441 U.S. 520, 539 (1979).; See also, Milonas v. Williams, 691 F.2d 931, 942 (10th Cir. 1982) (“any institutional rules that amount to punishment of those involuntarily confined . . . are violative of the due process clause per se”).

[138] See, Majd, Marksamer, and Reyes, Hidden Injustice, 106–107.

[139] For adults, courts have found that the classification of a prisoner as a “sex offender” has such stigmatizing consequences that, unless the prisoner has a sexual offense history, additional constitutional protections 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.”). Confined juveniles receive greater constitutional protections than adult inmates. Therefore, branding a juvenile with a sex offender label clearly would have the same, if not an even greater, stigmatizing effect.

[140] 28 C.F.R § (115.342)(c) (2012).

[141] 28 C.F.R § (115.342)(c).

[142] NY OCFS, HYCF, Santa Clara County, DC juvenile facilities all have specific policies that speak to housing of TG youth in juvenile facilities.

[143] 28 C.F.R § 115.342)(g).