Intersection of Law and Policy

by Flor Bermudez
Youth in Out-of-Home Care Attorney

Despite growing acceptance of lesbian, gay, bisexual, transgender or questioning (LGBTQ) people, LGBTQ youth commonly still face rejection and hostility from their families, peers, schools and other institutions. It is estimated that approximately 26 percent of gay male youth were forced to leave their families of origin as a result of conflicts with their parents regarding their sexual orientation. LGBTQ youth also face discrimination in schools, where all too often they are subjected to verbal and physical harassment at the hands of their peers and staff. These factors leave LGBTQ young people at very high risk of physical violence, substance abuse, unsafe sex and even suicide. These risk factors can also contribute to LGBTQ youth being in the custody of juvenile justice and delinquency systems in disproportionate numbers.

Unfortunately, many young people who are LGBTQ and in the custody of juvenile justice and delinquency systems are unsafe in their placements and are not receiving appropriate rehabilitative services. Youth in state custody have a constitutional right to safety that exists because of their unique legal status as wards of the state. This right to safety stems from the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and applies to juvenile justice settings. LGBTQ youth in juvenile justice placements are entitled to protection from physical, emotional, and sexual abuse by other youth or facility staff. In addition, youth in juvenile justice and delinquency systems have rights to equal protection under federal and state Constitutions, and several state and local nondiscrimination laws prohibit discrimination against youth in out-of-home care facilities on the basis of being LGBTQ. Because LGBTQ young people, and those perceived to be LGBTQ, are especially vulnerable to mistreatment and harm while in detention, it is imperative that juvenile justice systems develop policies to ensure that staff provide appropriate oversight and supervision so that vulnerable young people are safe and treated with respect.

In 2006, Lambda Legal and the Sylvia Rivera Law Project filed a federal lawsuit against the New York State Office of Children and Family Services (OCFS) on behalf of a transgender girl who had been in OCFS custody. While in care, she was abruptly taken off prescribed hormone treatment, and her gender identity was not respected in several ways. The lawsuit alleged violations of her civil rights including her right to receive necessary medical care. As part of the settlement, the girl received monetary damages, and OCFS agreed to engage in ongoing dialogue with advocates around the care of LGBTQ youth. In March 2008, OCFS implemented new policy and practice guidelines, which protect youth in New York's juvenile justice system from discrimination on the basis of sexual orientation, gender identity and gender expression. The guidelines also call for culturally competent practices with LGBTQ youth in areas like health care and name and pronoun usage. To date this is the most comprehensive LGBTQ policy in juvenile justice settings in the country.

In October 2009, Lambda Legal filed a complaint with the Philadelphia Commission on Human Relations (PCHR) against the City of Philadelphia and the Youth Study Center (YSC) among others on behalf of a 17-year-old transgender girl who was physically attacked by other residents and verbally abused by staff every day for almost a year and a half. In February 2008, a Family Court Judge ordered the Department of Human Services to provide her with all appropriate medical treatment for Gender Identity Disorder (GID), including hormone therapy, and mandated that her female gender identity be respected. However, YSC staff and administrators failed to treat her in accordance with her gender identity. They refused to refer to her by her preferred female name and to use female pronouns. YSC staff also refused her access to clothing and grooming options that matched her gender identity and reprimanded her for acting in a feminine manner. When she asked to be referred to by her preferred female name, YSC staff told her: "You ain't no fucking female, you are a dude. . . Till you get your dick cut off, I'm not going to call you [by your preferred female name.]"

The complaint claims that the YSC, operated by Philadelphia Department of Human Services, violated the Philadelphia Fair Practices Ordinance because she was harassed and discriminated against on the basis of her actual and/or perceived gender identity, sexual orientation, sex and disability. It is our hope that as a result of this filing, the PCHR will make a finding of probable cause that discrimination occurred and that it will ensure that the Philadelphia Department of Human Services develop and adopt explicit written policies that provide guidance on how to meet the needs of LGBT youth in juvenile justice settings. Such policies should prohibit discrimination and harassment based on actual and/or perceived gender identity, sex, sexual orientation, and disability. They should also mandate training for staff on sexual orientation and gender identity issues, and provide guidance with regard to rooming assignments, dress codes, youth requests to be called by names and pronouns that match their gender identity, and access to recommended GID treatment for transgender youth. Similar to the New York State OCFS LGBTQ Policy, this policy can be a model for other juvenile justice and delinquency systems across the nation to adopt similar standards of care for LGBTQ youth in these settings.