Hidden injustice: Lesbian, gay, bisexual, and transgender youth in juvenile courts

For more than 20 years, the juvenile justice system has steadily become more punitive in how it treats youth accused of delinquent offenses.  In some jurisdictions, the pendulum is slowly starting to swing back, with reform efforts underway to develop more fair and effective juvenile courts.  Notably absent from these efforts, however, has been a focus on the experiences of lesbian, gay, bisexual, and transgender (LGBT) youth.

The lack of professional guidance for juvenile justice professionals working with these youth is cause for concern. According to a 2009 study by Ceres Policy Research, LGBT youth comprise close to 12% of the overall population of youth in juvenile detention facilities.  Despite this compelling statistic, many juvenile justice professionals pay scant—if any—attention to LGBT youth.

A report released this week by the Equity Project, a collaboration of Legal Services for Children, the National Center for Lesbian Rights, and the National Juvenile Defender Center, aims to fill the gap in professional guidance for those working with this often-hidden population.  The report, Hidden Injustice:  Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts, is the first comprehensive effort to examine the experiences of LGBT youth in juvenile courts nationwide. 

Drawing from first-hand accounts of more than 50 LGBT youth, survey responses of 414 juvenile justice professionals, and in-depth interviews of 65 juvenile court judges, defense attorneys, prosecutors, probation officers, and detention staff, this groundbreaking report uncovered numerous barriers to fair and effective treatment that LGBT youth face in the justice system. These injustices include: deprivations of due process rights; a lack of appropriate services; unwarranted detention and incarceration; and shocking emotional, physical, and sexual abuse within detention and correctional facilities.

To assist juvenile justice professionals, policymakers, and advocates with addressing these problems head on, the report provides detailed practice and policy recommendations. 

The report specifically calls on policymakers to take some key steps on this issue, including enacting laws that specifically prohibit discrimination based on actual or perceived sexual orientation and gender identity in employment, housing, and schools; supporting the adoption of non-discrimination policies by juvenile justice agencies; and enacting legislation that makes receipt of federal funds for juvenile justice programming contingent upon the adoption of nondiscrimination polices and includes adequate funding for the creation of a continuum of community-based programs that are competent to serve LGBT youth.

Furthermore, Hidden Injustice encourages policymakers to take steps to enact legislation that rolls back punitive responses to minor misbehavior by adolescents, such as legislation giving schools incentives and resources to develop interventions to improve student behavior and keep youth in school, rather than referring students to juvenile court. Policymakers also are encouraged to support legislation and programs that (1) respond to juveniles engaged in prostitution with social services rather than criminal sanctions, (2) address out-dated age of consent laws that expose adolescents to court sanctions for engaging in consensual sexual behavior with other adolescents of the same age, and (3) exempt juveniles from unnecessary sex offender registration and community notification laws. 

Lastly, the report recommends that Congress reauthorize the Juvenile Justice and Delinquency Prevention Act and take other steps to ensure status offender systems provide services to at-risk youth outside the court system and do not incarcerate these youth.

By implementing these and the many other practice and policy recommendations from Hidden Injustice, juvenile justice professionals, policymakers, and advocates will be one step closer to ensuring a fair and just juvenile delinquency system that upholds the constitutional rights of all youth and ensures that all are treated with dignity, fairness, and respect. 

Jody Marksamer is a co-author of Hidden Injustice.  Visit www.equityproject.org to download an electronic copy of Hidden Injustice, or order a free hardcopy. For additional information, contact the Equity Project at info@equityproject.org.

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