LGBT Youth Exist, are Overrepresented in the Foster Care & Juvenile Systems, and Deserve Protections

 

Despite campaigning on promises to protect and support the LGBTQ community, the Trump Administration has sought out to harm LGBT folks since his inauguration in 2017 weaponizing various policy initiatives and a cabinet of notoriously anti-LGBTQ politicians against the community. While largely aimed at LGBTQ adults, these attacks have also hurt LGBT youth. Despite making up only 9.5 percent of youth in the US, percent of LGBTQ Youth are disproportionality represented in both the Foster Care and Juvenile Systems. In a recent study of California youth grades 6-12, researchers found over 30% of youth living in foster care identified as LGBTQ. While not widely researched, it is estimated that 20% of all youth in juvenile justice facilities are LGB. Additionally, LGBT Youth are 120% more likely to experience homelessness. These youth are particularly vulnerable youth are in dire need of increased protections, and the incoming Biden-Harris administration is in an excellent position to provide just that.

The Obama administration did some work to help LGBT youth, including issuing anti-bullying guidance through the Department of Education and a Dear Colleague letter containing legal guidelines that reaffirmed the rights of LGBT youth in schools. These advancements, at the time seemingly indicative of progress tirelessly pursued by the LGBTQ community, were quickly stripped away by the Trump administration.
Trump Administration’s Harmful Policies Affecting LGBT Youth

  • The U.S. Departments of Justice and Education revoked the Obama Administration’s guidance detailing school obligations to transgender students under Title IX of the Education Amendments of 197
  •  Housing and Urban Development (HUD), withdrew two notices impacting LGBT people: the first requirement for emergency shelters receiving HUD funding to post information about LGBTQ people’s rights to access shelter safely, and the second being critical data collection and implementation guidelines for a homelessness prevention initiative targeting LGBTQ youth.
  • Department of Health and Human Services (HHS) attempted to remove language protecting the rights of LGBTQ folks to access programs funded by HHS including child welfare services and openly announced protections would only be granted to types of discrimination already banned by federal statute. In 2019, at the time of this announcement, discrimination based on sexual orientation and gender identity were not yet statutorily protected. Shortly thereafter the Trump administration issued a waiver to the same effect to the state of South Carolina, prompting outrage from the House Ways and Means Committee for the “intentional” violation of a congressional mandate to act in the best interests of children. The combined result of these actions was that otherwise qualified families could be turned away-with little to no recourse- from adopting or fostering youth from federally funded welfare programs on the basis of the prospective parent(s)’ sexual or gender identity, leaving LGBT youth with even fewer options for loving, affirming homes. HHS rule overturning Obama-era protections against LGBT discrimination in healthcare. The rule would have allowed the HHS to adhere to biological definitions of sex meaning male or female, completely disregarding an earlier regulation that accounted for an individual’s gender identity. Fortunately, a federal judge blocked the ruling stating that the move directly opposed the SCOTUS decision in Bostock v. Clayton County.
  • Ed Dept. memo that Bostock ruling doesn’t apply to children or Title IX cases (though the memo does state that Bostock may be used to guide cases depending on circumstance)
  • HUD allowance for discrimination against transgender individuals and youth in single-sex accommodations for homeless individuals.

Today, the Biden-Harris administration has the opportunity to step-up and help protect LGBT youth, and so far it looks like they might do just that. On his first day in office, President Joe Biden issued a sweeping executive order protecting LGBTQ folks from discrimination in schools, housing, the workplace and healthcare. Though the order falls directly in line with the June 2020 SCOTUS ruling in Bostock v. Clayton County, backlash from conservative and religious groups alike have begun, with both groups claiming their rights – or those of women – are being erased or threatened by the choice to uphold LGBTQ rights. While promises to pass the hotly contested Equality Act within the first 100 days of his presidency have recently been rescinded due to difficulties with a newly democratic senate, the Biden administration remains openly optimistic that the act will be passed sooner rather than later, codifying protection from discrimination based on sexual orientation and gender identity into federal law in the areas of federally funded programs and public accommodations which are not covered under the most recent executive order.

The Human Rights Campaign has set forth a list of demands for the new administration, which includes calls to protect LGBTQ youth in foster care, create a comprehensive federal definition of bullying which would include sexual orientation and gender identity, and an end to the violent practice of conversion therapy. This is especially important for LGBT youth, considering that in 2020, of the 10% of LGBT youth that reported undergoing conversion therapy, roughly 78% of them reported their experiences took place before age 18. The practice has long been debunked as an effective method of “therapy” and instead carries an increased risk of suicide for those who have been subjected to it. Once more, this risk is amplified in youth. The passage of the Equality Act would address this as well as the neglect and harm experienced by LGBT youth in foster care, homeless shelters, and the criminal justice system. Only time can tell for sure whether or not Biden will honor the promises to push for total equality made on the campaign trail, but to those watching closely, this presidential term already seems promising.

ABA Resolution Seeks to Prevent Foster Kids Becoming Homeless

The ABA House of Delegates met last Monday, February 10, 2014, at the Midyear Meeting in Chicago, Illinois to debate and vote on a wide range of public policy issues.

One Resolution on the table, which was submitted by the Commission on Youth at Risk, “urges governments to enact and implement legislation and policies which prohibit youth from transitioning from foster care to a status of homelessness, or where a former foster youth will lack a permanent connection to a supportive adult.” This Resolution, Resolution 109A, was adopted.

The Resolution says governments and courts should provide support for housing assistance for children who turn 18 while in foster care and that dependency cases should not be dismissed until a Court finds that the child has (1) housing, (2) a permanent connection with at least one supportive adult, and for youths with disabilities, (3) a transition to adult systems that provide health care and other support.

The Resolution cited a report that followed over 700 children who had been in the foster care system in Illinois, Iowa, and Wisconsin. 36% of the former foster care children reported at least one instance of homelessness by the age of 26. The Resolution explained that “further action is needed to help former foster youth find safe and secure housing and avoid homelessness,” suggesting that Courts “simply forbid a child leaving foster care from becoming immediately homeless.”

In support of the second requirement (that the Court find the child has a permanent connection with at least one supportive adult), the Resolution explains that, “youth need stable and caring relationships with committed adults in order to transition smoothly into adulthood and avoid negative outcomes like poverty and unemployment.” In 2009, 80% of eighteen-year-olds who aged out of foster care through emancipation had no permanent family to turn to.

As it relates to the disabled youth in foster care, the Resolution argues that states “pay special attention to the transition needs of youth with disabilities because youth with disabilities are over-represented in the child welfare system and are at greater risk for poorer outcomes than their non-disabled system-involved peers.” Special transition planning requirements must be put in place because the successful transition of youth with disabilities requires accessing benefits, services, and supports in adult systems that operate by rules and eligibility criteria very different than the child serving systems.  Many of these services and supports have long waiting lists, are not entitlements, and require careful and early planning to ensure that the youth can access them upon discharge.  In addition, because many of these youth cannot rely on a parent or caregiver to help them navigate this complicated transition, clear requirements and procedures for transition planning for these youth is essential to their health and well-being.

homeless

Texas Foster Care System Facing Reform

From Patricia Kilday Hart at the Houston Chronicle:

In a 107-page opinion citing deficiencies in the Texas foster care system, a Corpus Christi federal judge this week paved the way forward for a classaction challenge to the state’s system of caring for abused and neglected children.

Judge Janis Jack, of the U.S. Southern District, certified a class of children in state care whose attorneys hope to prove have been harmed by the state’s policies and practices for managing children who have been taken into custody from abusive or neglectful families.

It is the second time Jack has made such a ruling in the case. The 5th U.S. Circuit Court of Appeals, citing a U.S. Supreme Court case tightening rules for class-action lawsuits, vacated a similar ruling in 2011. On Tuesday, Jack said the plaintiffs met the new standards for classaction lawsuits, and the lawsuit can proceed.

“This decision has life-changing significance for the vulnerable children in Texas foster care, and for the law,” said Marcia Robinson Lowry, executive director of Children’s Rights, one of the plaintiffs in the lawsuit. “The judge has laid out what is necessary to proceed on behalf of all children. … She has found that the evidence presented concerning problems in Texas foster care is sufficient for us to proceed as a class action.”

Spokesmen for Texas Department of Family and Protective Services and the attorney general’s office had no comment on the ruling.

The lawsuit on behalf of some 12,000 children in permanent foster care in Texas claims the state has violated their constitutional rights by not providing adequate oversight, specifically because it fails to employ sufficient caseworkers to ensure their safety and well-being.

In a written statement, the plaintiffs’ attorneys said they will prove that “the state fails to monitor children’s safety, putting them in understaffed group homes and unlicensed homes of relatives who are not given the same training or support as foster parents or inappropriately placing them in congregate care when they could be properly served in a more familylike setting. … These deficiencies lead to damaging consequences, including high rates of maltreatment, frequent and repeated moves between placements, and unnecessary separation of children from their siblings and communities.”

In her ruling, Jack wrote, “There is ample evidence that caseworkers are overburdened, that this might pose risks to the children in the PMC, and that … state officials had actual or constructive knowledge of these risks and have not acted to cap or otherwise limit caseloads.”

The judge also cited the turnover rate for Department of Family and Protective Services employees, which she said had “ranged from 23.6% in fiscal year 2009, to a staggering 34.1% in fiscal year 2007. In fiscal year 2012, the latest data presented to the Court, DFPS caseworkers had a turnover rate of just over 24%.”

Jack said the turnover guarantees poor results for foster children, citing the case of one girl who has had 12 different caseworkers assigned to her.

Further, she said, she found a link between caseworkers’ workloads and the safety of children in foster case. “Caseworkers are, in effect, these children’s fire alarms. They are the first and best mechanism to ensure the class members’ safety, i.e., to ensure that the child is not suffering any harm or abuses. A case worker that is so overburdened that she cannot visit the children she is responsible for to keep apprised of their well-being, or if she cannot build enough of a rapport to do so effectively, cannot fulfill this function.”

Her ruling cites stories of children who have spent years bouncing between multiple foster homes, including an 11-year-old boy from Houston who was taken from his drug-addicted mother in 2007 and lived in four foster homes, including one in which he suffered sexual abuse. He also spent time in psychiatric hospitals before his adoption in late 2012.

In another, a San Antonio boy taken from his mother in 2009 has endured multiple placements, including hospitals and emergency shelters where he was overmedicated. He now is in a residential treatment facility some 300 miles away from San Antonio, according to the lawsuit.

This is a groundbreaking opinion. It is a giant first step in protecting the foster care children of Texas for Judge Jack to certify the plaintiffs as a class. Tennessee was able to completely reform their system after a settlement was reached in a similar case and hopefully Texas will be able to do the same. ChildrensRights.org is a nationwide non-profit that is pushing for reformation of the foster care system in several states. Learn more about ChildrensRights.org and what they are doing to help. Read the opinion here.

Photo courtesy of ChildrensRights.org.