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National Juvenile Defender Center Effective Strategies for Representing LGBTQ Youth Sarah Bergen, National Juvenile Defender Center.

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Presentation on theme: "National Juvenile Defender Center Effective Strategies for Representing LGBTQ Youth Sarah Bergen, National Juvenile Defender Center."— Presentation transcript:

1 National Juvenile Defender Center Effective Strategies for Representing LGBTQ Youth Sarah Bergen, National Juvenile Defender Center

2 National Juvenile Defender Center Session Agenda Introduction LGBTQ Youth 101 Risk Factors Affecting LGBTQ Youth Representing LGBTQ Youth Post-Dispo Representation: Rights of Youth in Out of Home Placements Questions and Answers

3 National Juvenile Defender Center INTRODUCTION The purpose of this session is not to encourage you to find out whether every youth you work with is LGBTQ, RATHER it is about acting as if any/all youth could be GOAL: to improve practices to ensure safety for LGBTQ youth and to increase positive and healthy treatment outcomes for LGBTQ youth

4 National Juvenile Defender Center Understanding Terminology SEX –Biology GENDER –Identity –Expression –Attribution SEXUAL ORIENTATION –Attraction

5 National Juvenile Defender Center Safe Terminology Use appropriate terminology. When in doubt, ask. -Sexual Orientation vs. Sexual Preference -Gender Identity -Gender Expression L – Lesbian G – Gay B – Bisexual T – Transgender Q – Questioning Words to Avoid: Homosexual, Queer, “Slang” or Popular Terms

6 National Juvenile Defender Center Adolescent Development & LGBTQ Youth Mean age for LGB awareness 10 years Mean age for LGB disclosure 14 years Mean age for FTM awareness 15 years Mean age for FTM disclosure 17 years Mean age for MTF awareness 13 years Mean age for MTF disclosure 14 years - Grossman, A.H. “Lesbian. Gay, bisexual, and transgender youth” in P. White & L. Caldwell (Eds.), RECREATION AND YOUTH DEVELOPMENT (p ), State College, PA: Venture Publishing (2005)

7 National Juvenile Defender Center LGBTQ Youth 101 In 2009, a national study of youth incarcerated in detention facilities, found that approximately 15 % of the youth surveyed were “not straight” as the researchers defined that term. Of that total, 11% of boys identified as gay, bisexual or “gender non-conforming” 23 % of girls identified as lesbian, bisexual or “gender non- conforming” - Irvine, Angela, Ceres Policy Research, “WE'VE HAD THREE OF THEM”: ADDRESSING THE INVISIBILITY OF LESBIAN, GAY, BISEXUAL AND GENDER NON-CONFORMING YOUTHS IN THE JUVENILE JUSTICE SYSTEM, 19 Columbia Journal of Gender & Law (2010).

8 National Juvenile Defender Center Take Home Points In reality, identities are not binary, they are fluid. There are infinite ways of being. Sex does NOT determine gender and does NOT determine sexual orientation Like all other youth, LGBTQ are not defined by just one aspect of their identity

9 National Juvenile Defender Center Risk Factors Affecting LGBTQ Youth Family Rejection Harassment & Violence – School Bullying Stigmatization and Bias –Depression & Substane Abuse Social Isolation

10 National Juvenile Defender Center Family Rejection Non-acceptance of an adolescent’s sexual orientation/gender identity leads to: –Alienation from the family of origin –Alienation from religious institutions –Expulsion from the home –Suicides or Attempts –Physical and Emotional Abuse

11 National Juvenile Defender Center Family Rejection LGBTQ youth who experience high levels of family rejection during adolescence are: times more likely to have attempted suicide times more likely to report high levels of depression times more likely to use illegal drugs times more likely to report having engaged in unprotected sex compared with peers reporting no or low levels of rejection 30% of LGBT youth were physically abused by family members as a result of their sexual orientation or gender Identity 39% of LGBT homeless youth are “kicked out” of their home because of their sexual orientation or gender Identity - Ryan, Caitlin et al., Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian Gay, and Bisexual Adults, 23 Pediatrics 346, (2009).

12 National Juvenile Defender Center Family Rejection (Ctd.) “ Because ethnic minority communities are important providers of essential emotional and practical support, their LGBT youth are particularly vulnerable to rejection…Many youth of color hide their sexual orientation and, as a result are often less visible than their Caucasian peers.” - Grov, C. & Bimbi, D.S., Race, Ethnicity, Gender, and Generational Factors Associated with the Coming Out Process among Gay, Lesbian and Bisexual Individuals, 43(2)Journal of Sex Research (2006).

13 National Juvenile Defender Center Harassment at School A 10 year national survey of school climate for LGBT youth reveals: 72.5% heard homophobic remarks in their schools frequently and 62.6% heard negative remarks about gender expression; 61.1% felt unsafe at school because of their sexual orientation and 39.9% because of their gender expression 18.8% were physically assaulted because of their sexual orientation and 12.5% because of their gender expression More than a third of LGBTQ youth of color had experienced physical violence because of their orientation. 52.9% were harassed or threatened by their peers via electronic mediums 62.4% of those harassed or assaulted did not report it to school staff believing nothing would be done 33.8% who did report an incident said that school staff did nothing - Gay, Lesbian, and Straight Education Network. The 2009 National School Climate Survey: The School Related Experienes of Our Nation’s Lesbian, Gay, Bisexual and Tansgender Youth. New York, NY ( ).

14 National Juvenile Defender Center Harassment at School (Ctd.) 29.1% of GLBTQ students missed a class and 30% missed a day of school in the past month because they felt unsafe in their school. A Massachusetts survey of high school students found that lesbian, gay, and bisexual youth are: more than twice as likely to report having been in a physical fight at school three times more likely to report having been injured or threatened with a weapon at school A NYC study found LGBT were 3 times more likely to bring a weapon to school -Gay, Lesbian, and Straight Education Network. The 2009 National School Climate Survey: The School Related Experienes of Our Nation’s Lesbian, Gay, Bisexual and Tansgender Youth. New York, NY ( ). -Massachusetts Dept. of Education, 2005 Massachusetts Youth Risk Behavior Survey Results 43 (2007). -Advocates for Children of New York, Inc., In Harm’s Way: A Survey of Lesbian, Gay, Bisexual, and Transgender Students Who Speak About Harassment and Discrimination in New York City Schools 4 (2005).

15 National Juvenile Defender Center Stigmatization LGBT youth are at higher risk for mental health problems:  Depression  Feelings of hopelessness and helplessness  Low Self-esteem  Self-hatred  Attempted or completed suicide  30% of GBT adolescent males have attempted suicide at least once.  30% of all completed suicides in the U.S. are by LGBT youth.  LGBT youth are 4 times more likely to report making a suicide attempt that required medical attention.  Substance Abuse  60% of gay and bisexual young men are substance abusers, compared with less than 4% of youth population as a whole. U.S. Department of Health and Human Services, Report of the Secretary’s Task Force on Youth Suicide: Gay Male and Lesbian Youth Suicide, (1989) Remafedi, G., Adolescent Homosexuality: Psychological and Medical Implications, Pediatrics 79 (1987). Ryan, C. & Hunter, J., Clinical Issues with Youth in “A Provider;s Guide to Substance Abuse Treatement for Lesbian, Gay, Bisexual, and Transgender Individuals,” Center for Substance Abuse Treatment/SAMHSA, Washington, DC (2001).

16 National Juvenile Defender Center Factors Leading to JJ Involvement Violence in family after coming out Runaway/throwaway Status crimes (truancy, incorrigible) Non-violent survival crimes due to homelessness Substance abuse due to stigmatization or self- medication Inappropriate sex offense charges Fighting back/self defense

17 National Juvenile Defender Center LGBTQ Youth & Sex Offenses LGBTQ youth are no more likely than their heterosexual peers to be sex offenders. However, LGBTQ youth may be more likely to be charged with a sex offense. –Presumed coercion –Uneven application of “age of consent” laws –Parents pushing for prosecution In addition, LGBTQ youth are 4 times as likely to have been detained in juvenile facilities for prostitution - 2% of straight youth, compared with 9% of LGBTQ youth - Majd, K. et al., Hidden Injustice: Lesbian, Gay, Bisexual, and Transgender Youth in Juvenile Courts, The Equity Project (2009). - Irvine, Angela, Ceres Policy Research, “WE'VE HAD THREE OF THEM”: ADDRESSING THE INVISIBILITY OF LESBIAN, GAY, BISEXUAL AND GENDER NON-CONFORMING YOUTHS IN THE JUVENILE JUSTICE SYSTEM, 19 Columbia Journal of Gender & Law (2010).

18 National Juvenile Defender Center LGBTQ Youth: Overrepresented in Detention LGB Youth more than 2 X as likely to be detained for alcohol or drug related offense LGB youth more than 4 X as likely to be detained for any reason 38% of LGB youth have been in detention

19 National Juvenile Defender Center Factors Affecting Detention Decisions of LGBTQ Youth

20 National Juvenile Defender Center Representing LGBTQ Youth

21 National Juvenile Defender Center Ethical Duty to Represent Expressed Interests Juvenile Defenders: –Defenders’ role is to assist the client to “cope with problems of law, to make skilled inquiry into facts, to insist upon the regularity of the proceedings, and to ascertain whether the client has a defense and to prepare and submit it.” In re Gault 387 U.S. 1 (1967) Florida Rules of Professional Conduct Rule 1.1 IJA/ABA Juvenile Justice Standards Related to Counsel for Private Parties Standards 3.1(a) NJDC Ten Core Principles for Providing Quality Delinquency Representation through Indigent Defense Delivery Systems

22 National Juvenile Defender Center Attorney/Client Relationship Understand relevancy of youth’s SO or GI Approach youth with an open mind Do not make assumptions Be aware of personal biases and lack of understanding Maintain an attitude of respect Diversify your surroundings to convey awareness and openness

23 National Juvenile Defender Center Creating a Safe Environment Talk with youth in a space where they can feel comfortable disclosing information about themselves, their sexual orientation, and gender identity Develop and maintain a network of local LGBTQ-sensitive providers to whom you can refer your LGBTQ young clients Allow client to be the gatekeeper of information pertaining to sexual orientation or gender identity

24 National Juvenile Defender Center Talking to Youth Be aware of any discomfort talking about these topics Respect youth’s gender identity-- chosen name, pronoun Speak in gender-inclusive, non-hetersexist terms Respect confidentiality

25 National Juvenile Defender Center When might LGBTQ status be relevant? Discriminatory or inappropriate charges Evidence of mitigation Bias & harassment Past record & AWOL history Dispositional planning Services & programming Relationship with family & community Post-dispositional advocacy Placement/classification Safety considerations

26 National Juvenile Defender Center Challenging Bias Courtroom Conduct –Treated disrespectfully by court, attorneys, etc.? Charges –Age-appropriate consensual sexual activities? Probation –Discriminatory conditions? Placements –Segregated/isolated? –Is this the least restrictive placement necessary? Programs –Reparative therapy?

27 National Juvenile Defender Center POST DISPOSITION REPRESENTATION Legal Rights of Youth in Out of Home Care

28 National Juvenile Defender Center Right to Safety 14 th Amendment of the U.S. Constitution ensures the right to “reasonably safe conditions of confinement” and “freedom from unreasonable bodily restraint” –Physical and emotional safety –Adequate food, shelter, and clothing

29 National Juvenile Defender Center R.G. v. Koller Federal court case in Hawaii alleging due process and other constitutional violations in state Youth Correctional Facility Names director of agency, director of facility and several individual staff members Facility has a responsibility to ensure safety of youth Court looked at 6 factors: –Absence of policies and procedures –Failure to train and supervise –Failure to respond to complaints, ensure safety –Discrimination and harassment based on SO and GI –Absence of classification system –Inappropriate use of isolation and segregation

30 National Juvenile Defender Center R.G. v. Koller “In light of ongoing abuse and harassment directed at LGBT youth at HYCF, the supervisory defendants' failure to adopt policies and procedures and to provide training regarding how to ensure the safety of LGBT wards supports a finding of deliberate indifference to plaintiffs' safety. Most notable is the complete lack of training for staff about their obligations to refrain from harassment and discrimination, to intervene in ward-on-ward harassment, and to investigate claims of harassment.” R.G. v. Koller (2006)

31 National Juvenile Defender Center Right Not to be Isolated “Consistently placing juvenile wards in isolation, not to impose discipline for violating rules, but simply to separate LGBT wards from their abusers, cannot be viewed in any reasonable light as advancing a legitimate non-punitive governmental objective.” R.G. v. Koller (2006)

32 National Juvenile Defender Center Placement of Transgender Youth In most cases, it is most appropriate to house youth according to their gender identity, not their birth gender. Sometimes a youth may not feel comfortable being housed according to their gender identity. Considerations: –Youth’s emotional and physical well-being –Youth’s concerns –Recommendations of youth’s therapist –Facility’s willingness to support the youth –Privacy issues

33 National Juvenile Defender Center Responsibility to Provide Medical Care Physical and mental health care Services unique to LGBT youth –Medically necessary care for transgender youth Rodriguez –Proper treatment for suicidal youth No services that cause emotional harm State should provide necessary consent for medically necessary transition related care

34 National Juvenile Defender Center Equal Treatment Equal application of rules and policies Respond to complaints of harassment Inclusive programming

35 National Juvenile Defender Center Freedom of Expression Limits the right of public systems to censor a young person’s speech or expression –Right to be “out” –Display symbols of identity –Wear clothing consistent with gender For Transgender youth: Respect youth’s stated identity Allow youth to dress, style their hair, and groom in accordance with preferred gender

36 National Juvenile Defender Center Examples of State Laws, Policies & Standards CA Juvenile Justice Safety & Protection Act State and local policies NYC Hawaii VA Defender Standards –“Counsel should be knowledgeable about and seek ongoing training in at least the following areas:... the issues of lesbian, gay, bisexual, and transgender youth in the juvenile justice system.”

37 National Juvenile Defender Center Additional RESOURCES & CONTACT Hidden Injustice –Available at: Website contains resources for youth, defenders and other JJ professionals See also Himmelstein, K., Criminal Justice and School Sanctions against Non-heterosexual Adolescents: A National Longitudinal Study, 127 Pediatrics (2011) Contact Info: – X 103


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