We’ve Had Three of Them: Addressing the Invisibility of Lesbian, Gay, Bisexual, and Gender Nonconforming Youths in the Juvenile Justice System

Two researchers were speaking to a high-ranking probation officer from a large city, trying to convince her to participate in a project on lesbian, gay, bisexual and questioning ("LGB"), and gender nonconforming youths. (1) Her first response was, "I've worked in this system for twenty-five years and in all of that time I think we've had three of [these types of youths]. (2) This quote perfectly captures a prevalent myth: the juvenile justice system detains only very few LGB and gender non-conforming youths. Juvenile justice professionals believe this myth because only a handful of LGB and gender non-conforming youths disclose their sexual orientations, act in ways that do not conform to gender norms, (3) or have court cases linked to their sexual orientation, gender identity or gender expression. (4) However, many LGB youths, youths who are questioning their sexual orientations or youths who have non-conforming gender identities enter the juvenile justice system unnoticed. (5) The disproportionate incarceration of youths of color within the juvenile justice system further reinforces the invisibility of LGB and gender non-conforming youths. (6) Many juvenile justice professionals assume that LGB and gender non-conforming youths come from middle class, white families, and therefore, juvenile justice jurisdictions detaining large numbers of youths of color do not serve LGB and gender non-conforming youths. (7) This Article shows that both assumptions are wrong. National survey data presented in this Article shows that fifteen percent of youths in the juvenile justice system are LGB, questioning their sexual orientation, transgender or express their gender in non-conforming ways. Moreover, the data shows that equal proportions of white, African American and Latino youths are LGB and gender non-conforming. (8) Yet, myths around the nonexistence of LGB and gender nonconforming youths in the juvenile justice system persist, presenting numerous challenges to the equitable treatment of such youths. Juvenile justice professionals need to know that LGB or gender non-conforming youths exist within the system, and that LGB or gender non-conforming youths often enter the juvenile justice system for different reasons than straight youths. For example, the findings presented in this Article show that LGB or gender non-conforming youths are more likely than heterosexual youths to enter the juvenile justice system because they run away from home or placement or because of status offenses such as truancy. (9) Juvenile justice professionals need to know the underlying reasons for failure to remain at home, in placement or truancy in order to identify successful alternatives to detention and out-of-home placements or to assign appropriate terms of probation. Yet, gathering information about clients' sexual orientation, gender identity and gender expression create a difficult conundrum for juvenile justice professionals. While juvenile justice professionals need to know the reasons that youths have entered the juvenile justice system, many youths do not disclose their sexual orientations or gender identities. Research that uncovers high levels of homophobic reprisal from peers, parents, institutional staff or judges provides one possible explanation for such lack of disclosure: youths may fear further victimization if they disclose their sexual orientation or gender identity. (10) The policy recommendations provided at the end of this Article can help create safe conditions that lead to disclosure about sexual orientation and gender identity, but there will always be youths who prefer to maintain their privacy. (11) Faced with the need to serve LGB and gender non-conforming youths while respecting their privacy, national survey data can help inform practice even when the sexual orientation or gender identity of individual youths are not known in individual instances. By analyzing 2,100 surveys that have been collected from six jurisdictions across the country, this Article: * provides the only existing estimates of the number of LGB and gender non-conforming youths who enter the juvenile justice system; * describes patterns of incarceration for LGB and gender nonconforming youths compared with their heterosexual and gender conforming peers to help juvenile justice professionals understand the social context around the detention of many LGB and gender non-conforming youths; and * offers suggestions to juvenile justice professionals on how to address the needs of LGB and gender non-conforming youths, whether visible or invisible within the juvenile justice system. …