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.

Kids are Kids

Kids act imprudently when they think social capital is to be gained. It is a normal part of the adolescent experience and essential to their growth.  However, a child’s experience will vary drastically based on implicit biases in society and the youth justice system.

 

Consider, for instance, a 16-year-old boy who sat idly by and watched his friends take a delivery truck for a joyride and end up crashing it into a parked car.  He pleads guilty to larceny in exchange for probation and “youthful offender” status.  Unfortunately, this special status is used to deny bail for an alleged probation violation when he is later wrongfully accused of a violent felony. This denial leads to three years at Rikers, awaiting a trial that would never happen because, as he maintained his innocence, the State did not have evidence of his guilt. The State ultimately dismisses his case. His family, particularly his mother, was at every one of his 36 court appearances to show support and ask when her son can come home.  The court, however, is content to keep him detained on a technicality until the State decides to dismiss the case. Regretfully, the trauma endured while in jail at the hands of others interred there and the guards that were supposed to look after him was too much for the young man when he was finally released.  Having spent his formative years in an infamously abusive detention facility, he was not the same when he reintegrated into society and he soon thereafter committed suicide after several bouts in different mental health facilities.

 

Alternatively, consider a 17-year-old boy who wants to impress a group he idolizes by showing up to one of their events, strapped with an illegally purchased weapon, to show off that he is willing to engage in dangerous and criminal activity to be accepted by them. Unfortunately, the boy unexpectedly finds himself in an overwhelming situation and ends up killing two people and injuring a third. He does not deny doing so but claims he had to protect himself.  However, he finds that society recognizes his predicament. Thanks to crowdfunding and deep pocket donors, he is able to be released on bail despite a prohibitively high cost, while the State determines whether there is sufficient evidence to take him to trial or if his defense is reasonable.

 

The commonality between the two scenarios is both intuitive and backed by hard science.  They both involve youths that are on relatively equal footing developmentally. Generally looking at the physiological development of a 16- to 17-year-old’s brain, we know the neural connections that permit more complex brain functions are still forming for adolescents. The first of these functions is the socio-emotional system, which results in increased sensation-seeking, emotional arousal, and attentiveness to social information.  The cognitive control system responsible for regulating these impulses develops more gradually until well into their mid-twenties.[i] As such, it’s important to remember that 17-year-olds demonstrate significantly less impulse control than 22- to 25-year-olds.[ii] And I don’t know about you, but when I was 22, I was still making some pretty impulsive socio-emotional decisions!

 

Despite their similarities, the children were treated very differently. The reasoning between the two incongruent outcomes is probably not hard to guess. The former scenario describes the plight of Kalief Browder, a 16-year-old Black child who was held at Rikers Island without bail for three years. The latter is that of Kyle Rittenhouse, a 17-year-old White child, who, last week, posted $2 million bail despite several crowdfunding sites removing fundraisers created in his support. However, some deep pocket donors contributed to a fund set up by Kyle’s attorneys. Regardless of how one feels about the protests that filled so much of the 2020 news cycle, it is important to reflect on disparate impact of the criminal and youth justice system on different communities.

 

Kalief was a kid when locked up at Rikers for a crime he did not commit. Kyle is still a kid.  Both deserved to be treated like one.  It’s okay to recognize that Kyle does not carry the same level of culpability as a fully developed adult. It’s ok that Kyle be returned to his family. It is good for him, and any child in conflict with the law, to know that their family, friends, and community are there to support them, to foster growth, and that the justice system will be fair to all youth.

 

I am not surprised that a 17-year-old boy, who idolized police and military – though disqualified from service in the Marine Corps – crossed state lines with an illegally purchased firearm to “supplement” an overwhelmed police presence. I think he was just playing police. That is not to say that Kyle does not have a right to protest, counter-protest, or participate in political discourse. Like all children, he should be encouraged to advocate for what he believes in. But, unfortunately, Kyle found himself in way over his head, and the socio-emotional feedback from his peers and his idols led to devastating and deadly results. But isn’t that most youth crime?  Couldn’t you say the same thing for Kalief? Or any child allegedly involved in gang activity? I do not mean to equate law enforcement to criminal enterprise.  But in the eyes of a child seeking approval from society, I think it’s a distinction they may not fully appreciate.

 

What is true though for Kyle is true for all children caught up in the criminal justice system.  And, statistically speaking, most of them are of color.  In fact, though 14% of children in the U.S. are Black, 42% of boys and 35% of girls in juvenile facilities are Black. There are so many other children like Kalief who have not received bail leading up to trial because of a presumption of guilt based on the color of their skin.  Or worse, they never even made it to the detention facility because they were killed by the police that are supposed to protect them.  Not just now, but for decades.  For as long as our county has existed.  Don’t they have a right to be angry? To walk the streets with other likeminded people to demand justice?  When they become emotionally overwhelmed due to the circumstances, shouldn’t they be given a benefit of the doubt as well?

 

We need to remember that there are so many children sitting in detention centers for less devastating offenses that also deserve to know that society cares about them.  There are also young supporters of Black Lives Matter who were swept up off the streets by state and federal law enforcement officers for practicing civil disobedience or maybe vandalizing property.  I get upset when I think about Kyle Rittenhouse because I think about the countless children who aren’t going to be home tonight, who spent Thanksgiving separated from their families, and will likely not be with them for the winter holidays.  Like Kyle, they should not be the object of our disdain.  Rather, they deserve to be home with their loved ones and participate in a society that values them and recognizes that they are still growing.

[i] See Michael N. Tennison & Amanda C. Pustilnik, “and If Your Friends Jumped Off A Bridge, Would You Do It Too? “: How Developmental Neuroscience Can Inform Legal Regimes Governing Adolescents, 12 Ind. Health L. Rev. 533, 558 (2015).

[ii] Laurence Steinberg et al., Age Differences in Sensation-Seeking and Impulsivity as Indexed by Behavior and Self-Report: Evidence for a Dual Systems Model, 44 DEVELOPMENTAL PSYCHOL. 1764 (2008).

Help Houston Area Youth In Detention & Probation Facilities This Holiday Season

Law Students at the University of Houston – Law Center invite you to help youth in Houston area juvenile facilities this holiday season.
Help them reach their fundraising goal by donating at: https://gf.me/u/y9w49k.
Funds will be used to purchase gift bags for roughly 150 children filled with:
  • snacks
  •  journals
  • candy
  • toiletries
  • and additional holiday items