Why we punish LGBT kids — especially when they’re not white– and how we might stop.

By Angela Irvine

Angela was the Principal Investigator on the Annie E. Casey Foundation national survey of 2,200 LGBTQ youth in the juvenile justice system. This article draws on that research, which also appeared in the Columbia Journal of Gender and Law. Angela is the Associate Director at the National Council on Crime and Delinquency.

When we talk about disparities in detention and sentencing, we’re usually thinking about race as the cause: youth of color do make up 65 percent of the juvenile detention population. But our child welfare, education, and criminal justice systems unwittingly conspire to create different outcomes for LGBT people too.

LGBT kids and adults face harsher punishment than straight people for the same crimes. Young people who aren’t hetero are more often expelled from school, arrested, and convicted of a juvenile offense compared to their straight counterparts. At least 15 percent of the population in juvenile detention is LGBT. Dice the numbers according to gender and the statistics get worse: 27 percent of girls booked into detention sites across the country disclosed lesbian or bisexual sexual orientations or otherwise failed to conform to expectations of how girls should behave. Like kids of color, LGBT youth are punished more often than their straight peers.

Translation: the majority of LGBT youths in detention are African American, Latino, Asian, Native-American, and multi-racial, too. Why are so many more LGBT kids of color in juvenile detention? And how can we change the system to make sure that all kids– including youth of color– aren’t being punished for their sexual orientation and gender identity?

Hypervisibility

The presence of LGBT youth in juvenile detention is certainly well known to line staff. Transgender youth are especially hard to miss in detention centers, where living quarters are sex-segregated. We’ll call these LGBT kids hypervisible—they stand out as a problem that has no solution. They are more likely to find their way into the system, and once they get there, no one knows what to do with them.

Candice, for example, is a sixteen-year-old transgender girl living in Las Vegas, who describes her sexual orientation as pansexual.

She’s been in trouble for minor offenses like loitering and skipping school, where she was bullied. In custody, transgender girls like Candice create administrative challenges. Where should she sleep? Should detention centers require her to change how she dresses or how she presents herself to the world? Answering these questions takes additional time for staff members, and catapults kids like Candice into the spotlight.

Other lesbian, gay, or bisexual kids become visible to detention staff members because of their charge. Michael, a thirteen-year-old bisexual boy in Minneapolis, was taken from his parents at a young age and placed in a foster home. He ran away from foster care and was briefly homeless. At school, he was being bullied because of his sexual orientation, and recently, he was detained for having sex with another boy in his group home.

Like transgender youths, boys and girls caught having consensual sex with kids of the same gender are considered difficult to place in foster and group homes. Probation staff and the courts don’t usually want to hold boys like Michael in detention, yet feel that they don’t have a choice unless the child has a decent place to go.

But the system wouldn’t have faced this dilemma in the first place if Michael hadn’t been arrested for consensual sex. Straight kids usually aren’t arrested for having sex, but if they are, a number of group homes would be available to take them in. Sexual orientation lies at the heart of this institutional conundrum and leads to unnecessarily long detention periods.

Straight youth, however, aren’t immune to the connection between gender policing and the entry into the juvenile justice system. Lillian is a fifteen-year-old Native American girl living in Birmingham, Alabama. She’s straight, but has been bullied at school because her peers think she’s a lesbian. She’s been suspended eight times from school and expelled three times. Recently, she was arrested and detained for a violent offense. The juvenile justice staff will likely assume Lillian is a lesbian, too, even though she identifies as straight. Discrimination is based on interpretations of gender expression, suggesting that the LGBT stigma affects straight kids too.

Invisibility

Unsurprisingly, many LGBT kids decide to keep their sexual orientation and gender identity entirely hidden as they move through schools, foster homes, and the juvenile justice system. These are the invisible kids. Hiding their orientation, however, doesn’t protect them from the prison pipeline. Take Nicole, a fifteen-year-old girl in Portland. Though she questions her sexual orientation, she’s never been bullied by her peers. She has been suspended from school four times and detained for her first offense—a violent one.

When girls like Nicole hide that they’re questioning their sexual orientation, detention line-staff usually assume that they’re straight, and their system isn’t set up in any way that might call that assumption into question.

When delving into the girls’ lives for possible risk factors, for example, many juvenile justice professionals make the mistake of asking all girls if they have a boyfriend. Because they don’t ask the right questions, they can’t identify interventions that might keep girls like Nicole from repeated trips to the juvenile justice system. An intervention as simple as a referral to a counseling center with experience helping LGBT kids could give Nicole the support she needs, and hasn’t found at school or home.

Making assumptions about kids’ sexuality also means that some of them are slotted into the wrong programs. Juvenile justice professionals assumed Armando, a sixteen-year-old living in Albuquerque, is straight. But he was kicked out of his parent’s home because they suspected that he was gay. He wasn’t bullied at school, but the turmoil and rejection Armando experienced at home probably contributed to his trouble at school and with the police. He’s has been suspended twice and expelled once; in the past year, he’s been detained five times. The charges include a violent offense, a weapon charge, stealing property, possession of marijuana, and running away.

Because of his offense record and ethnicity, many detention staff assume boys like Armando are affiliated with a gang, but they don’t suspect that he’s questioning his sexual orientation. Probation departments often consider referring youths like Armando to community-based organizations that specialize in serving gang members. But these organizations aren’t trained to meet the needs of LGBT kids.

Most of the LGBT kids in juvenile detention are like Nicole and Armando, I discovered in my survey of 2200 youths in six detention halls across the United States.

Nine percent are LGBT but hide it, and are assumed to be straight. Three percent are out and perceived as LGBT. Another 3 percent are straight, but are presumed gay because they don’t conform to gender expectations in one way or another.

What to do?

Whether they’re too visible or invisible, LGBT youth too often find themselves swept down a pipeline that typically begins with conflict in the home, continues at school with bullying, leads to suspension and expulsion and eventually to the juvenile justice system.

My study found that lesbian, gay, bisexual, and gender non-conforming youth in juvenile detention were twice as likely to have a history of home removal by a social worker, placement in a group or foster home, or homelessness when compared with their straight peers. They’re are also twice as likely to face detention in the juvenile justice system for running away, prostitution, sex with someone of the same gender, and minor offenses like loitering and truancy. Lesbian, gay, and bisexual (but not gender non-conforming) youth are also more likely than their straight peers to face detention for a violent offense.

The harshest disparities show up in punishments for running away: 28 percent of gay and bisexual boys are detained for running away compared with 12 percent of straight boys, and 38 percent of lesbian and bisexual girls are detained for running away compared with 17 percent of straight girls.

What’s the best way to right this disparity in juvenile detention? Increased awareness about the nine percent of young people who arrive in the closet, or are questioning their sexual identity, would be a good starting point for change. Also a smart move: developing anti-discrimination policies to protect the rights of kids who don’t conform to gender norms or are gay. The majority of boys and girls I surveyed were also poor and not white, some were immigrants, or spoke a language other than English at home. Programs already exist to help these kids. Breaking down the barriers between different programs will go a long way towards getting disproportionate numbers of LGBT kids out of the juvenile justice system.

Model programs exist too. The city of Chicago, for instance, is starting an LGBT taskforce that will help the juvenile justice center change their ways. Judges, probation, juvenile detention centers, alternative programs and juvenile public defenders are all on board to learn how they can stop funneling LGBT kids into the juvenile justice system. And if we want to stop punishing kids of color for their sexual orientation and gender identity, other jurisdictions should follow Chicago’s example.