LGBT Youth in Juvenile Justice: Three Fixes the System Needs

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By Christina Gilbert
The Equity Project

Lesbian, Gay, Bisexual, and Transgender (LGBT) youth are over-represented in the juvenile justice system.  Although LGBT youth represent 5 to 7 percent of the nation’s youth population, they represent 13 to 15 percent of those in the juvenile justice system.  This number only includes youth who self-disclosed that identity.  The percentage is likely much higher, as LGBT youth are often a hidden or invisible population within the juvenile justice system.  

A variety of factors such as harassment in school, negative school climate, family rejection, homelessness, and a lack of appropriate services and programming all contribute to LGBT youths’ entry into the juvenile justice system.  Once in the system, LGBT youth experience harsher treatment from other youth and staff.  Many juvenile justice professionals lack the information and resources to appropriately respond to the unique issues and challenges LGBT youth in the juvenile justice system experience. 

We can make some immediate improvements to the Juvenile Justice and Delinquency Prevention Act (JJDPA)—the nation’s landmark law that sets standards for state juvenile justice systems—to help systems respond more fairly and effectively to LGBT and gender non-conforming youth.

Reducing Unnecessary Lock-Up

LGBT youth are more likely than non-LGBT youth to be held in pre-trial detention for truancy, warrants, probation violations, running away and prostitution.  One of the core mandates of the JJDPA is to de-incarcerate status offenders, which could significantly assist in addressing these unwarranted and unnecessary detentions.

This especially true if the Valid Court Order (VCO) exception is eliminated. Although the JJDPA initially prohibited locking youth up for status offenses, the VCO exception allows courts do so if the child is also found in violation of an active court order.  Andrew, a 17-year-old Latino gay male youth offers an example of how this works: “My mom [told the judge I was gay].  She told him I wouldn’t go to school and I got kicked out.  [But the problem was] I was getting harassed at school.  My PO lied and said it wasn’t as bad [at school] as it was.” This is fairly common among LGBT youth: skipping classes because he or she is being bullied at school. Generally, if this young person is picked up for truancy, he or she cannot be locked up.  However, if a court has already ordered him or her to attend school, then he or she may be detained.  Research has shown that such secure detention of status offenders is ineffective and frequently dangerous.  It’s time to remove this exception and keep all status offenders from being locked up and there is now legislation pending in Congress to eliminate use of the VCO exception.

Addressing Disproportionate Involvement

The JJDPA also has a core mandate to address disproportionate minority contact. Updating this mandate to require states to take concrete steps to reduce racial and ethnic disparities in the juvenile justice system will also benefit LGBT youth in the system who are predominantly youth of color.  

Better Resources for Staff and Systems

Additionally, the JJDPA has provisions regarding training, technical assistance, and research and evaluation.  Reauthorizing the JJDPA provides an opportunity to expand these provisions and programs to include LGBT youth and sexual orientation, gender identity, and gender expression (SOGIE).  Until very recently there has been a dearth of information, resources, or programming for this population in the juvenile justice system.

As we celebrate Pride month, now is the perfect time to urge Congress to reauthorize the JJDPA, and explicitly recognize the unique experiences of LGBT youth in the juvenile justice system.

Christina Gilbert is the Director of The Equity Project, a collaborative initiative of the National Juvenile Defender Center (NJDC), Legal services for Children (LSC), and the National Center for Lesbian Rights (NCLR).  The Equity Project works to ensure dignity, respect, and fairness for Lesbian, Gay, Bisexual, and Transgender (LGBT) youth in the juvenile delinquency system.

This post is part of the JJDPA Matters blog, a project of the Act4JJ Campaign with help from SparkAction. The JJDPA, the nation's landmark juvenile justice law, turns 40 this September. Each month leading up to this anniversary, Act4JJ member organizations and allies will post blogs on issues related to the JJDPA.  To learn more and take action in support of JJDPA, visit the Act4JJ JJDPA Matters Action Center, powered by SparkAction.