LGBTQ youth are overrepresented in the juvenile justice and delinquency system, and they face serious health and safety issues while in custody. They also may not receive the rehabilitation services that they are entitled to in those settings. Further, while certain restrictions on freedom are permitted within a juvenile justice institution, they must be reasonably related to a legitimate government interest, such as safety. For example, searches may be necessary, but searches of transgender youth should never be done publicly in order to determine the specifics of a person’s physical anatomy. You should not be subjected to conditions that are punitive or humiliating as part of your experience within the system.
In many cases, LGBTQ youth end up in the system because of family conflict that has resulted in them becoming homeless and needing to become involved in illegal activities, including sex work, in order to survive. Additionally, young people who are transgender or those who have same sex partners are more likely than other youth to be criminally charged for alleged violations of age-of-consent laws.
Rights to Safety and Medical Treatment While in Custody
If you are a young LGBTQ person in state custody, you have the right to safety, which is derived from the Fourteenth Amendment of the federal Constitution. You have the right to be free from abuse and harassment, and are generally entitled to greater civil rights protections than adults in custody.
You also have the right to receive appropriate medical care as part of the right to safety. For example, if a transgender youth shows the need for medical or psychological care, including transition-related care, and they are not provided with it, their rights have been violated.
All juvenile justice facilities are supposed to have a system to identify and protect youth that may be more vulnerable. LGBTQ youth should not be placed with an aggressive population or with sex offenders because they may face a greater risk of harm relative to others in those circumstances due to their gender identity or sexual orientation.
Mental Health Concerns
LGBTQ youth are also at greater risk for mental health problems and suicide. They should never be placed in isolation or segregation only because of their gender expression or orientation. In some cases, officials impose isolation upon LGBTQ individuals due to a misguided desire to stop harassment on the part of the rest of the population. However, in general, solitary confinement tends to produce lasting psychiatric problems in youth.
Protections Against Discrimination
Some states have enacted laws or policies to guard against discrimination and harassment within juvenile facilities based on gender identity or sexual orientation. For example, California has enacted the Juvenile Justice Safety and Protection Act to prohibit discrimination against and harassment of LGBTQ youth in juvenile facilities.
Moreover, state officials who permit harassment or harm to a young person in custody can be held personally liable through civil lawsuits. Plaintiffs suing a facility or individual for failure to protect based on constitutional violations must prove “deliberate indifference.” This can be proven in different ways and you should consult an attorney to find out the possibility of bringing a successful claim in your state.
Where a Hawaii facility failed to maintain policies and training necessary to protect LGBTQ youth, failed to provide adequate staffing and supervision, failed to provide a working grievance system, and failed to use a classification system to protect vulnerable youth, a federal court has found that the plaintiffs were likely to succeed on their claims and granted a preliminary injunction.